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2 III

Contents Federal Register Vol. 63, No. 210

Friday, October 30, 1998

Administration on Aging Defense Department See Aging Administration RULES Federal Acquisition Regulation (FAR): Aging Administration Alternative dispute resolution (1996), 58594–58595 NOTICES Civil defense costs, 58599 Grants and cooperative agreements; availability, etc.: Costs related to legal/other proceedings, 58599–58600 Supportive and nutritional services for Older Native Electronic commerce in Federal procurement, 58590– Americans, 58392–58396 58594 Introduction, 58585–58587 Agriculture Department Pay-as-you-go pension costs, 58595–58598 See Forest Service Payment due dates, 58601–58602 See Rural Utilities Service Service contracts, 58600–58601 Small entity compliance guide, 58609–58610 Appalachian States Low-Level Radioactive Waste Taxpayer identification numbers, 58587–58590 Commission Technical amendments, 58602–58608 NOTICES Workers with disabilities; employment and advancement, Meetings, 58361 58598–58599 NOTICES Blind or Severely Disabled, Committee for Purchase From Agency information collection activities: People Who Are Submission for OMB review; comment request, 58370– See Committee for Purchase From People Who Are Blind or 58371 Severely Disabled Meetings: Armed Forces Code Committee, U.S. Court of Appeals, Census Monitoring Board 58371 NOTICES Defense Intelligence Agency Science and Technology Meetings, 58363 Advisory Board, 58371–58372 Centers for Disease Control and Prevention Drug Enforcement Administration NOTICES NOTICES Meetings: Applications, hearings, determinations, etc.: Fire fighters’ protective clothing and equipment; full Applied Science Labs, Inc., 58418 ensemble fire testing; peer review, 58396–58397 Arenol Pharmaceutical, Inc., 58418 Bradford’s Pharmacy, 58418–58421 Commerce Department See International Trade Administration Education Department See National Oceanic and Atmospheric Administration NOTICES NOTICES Agency information collection activities: Agency information collection activities: Submission for OMB review; comment request, 58372– Submission for OMB review; comment request, 58363– 58374 58364 Meetings: National Assessment Governing Board, 58374–58375 Committee for Purchase From People Who Are Blind or Severely Disabled Employment and Training Administration NOTICES NOTICES Procurement list; additions and deletions, 58361–58363 Adjustment assistance: Correction, 58363 Clarks Co., N.A., et al., 58421–58422 M. Fine & Sons Manufacturing Co. et al., 58422 Committee for the Implementation of Textile Agreements NAFTA transitional adjustment assistance: NOTICES Gillette Co. et al., 58422–58429 Cotton, wool, and man-made textiles: Perm-O-Penn Exploration, 58422–58429 Mauritius, 58368 Singapore, 58368–58369 Employment Standards Administration Thailand, 58369–58370 NOTICES Special access and special regime programs; participation Minimum wages for Federal and federally-assisted denial: construction; general wage determination decisions, Cutler, H.H., 58370 58429–58430 Commodity Futures Trading Commission Energy Department RULES See Energy Efficiency and Renewable Energy Office Commodity pool operators and commodity trading See Federal Energy Regulatory Commission advisors: RULES Disclosure documents; two part documents for Hearings and Appeals Office procedural regulations; commodity pools, 58300–58303 technical amendments, 58288–58289 IV Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Contents

NOTICES Federal Communications Commission Meetings: PROPOSED RULES Environmental Management Site-Specific Advisory Practice and procedure: Board— New noncommercial educational broadcast facilities Savannah River Site, SC, 58375–58376 applicants; comparative standards reexamination, Powerplant and industrial fuel use; new electric 58358 powerplant coal capability: Self-certification filings— Federal Deposit Insurance Corporation AES Ironwood, Inc., 58376 NOTICES Senior Executive Service: Meetings; Sunshine Act, 58384 Performance Review Board; membership, 58376–58378 Federal Emergency Management Agency RULES Energy Efficiency and Renewable Energy Office Flood elevation determinations: PROPOSED RULES Alaska et al., 58321–58323 Consumer products; energy conservation program: Arizona et al., 58316–58321 Fluorescent lamp ballasts; energy conservation standards, PROPOSED RULES 58330–58331 Flood elevation determinations: Arkansas et al., 58338–58341 Environmental Protection Agency Federal Energy Regulatory Commission NOTICES Environmental statements; availability, etc.: NOTICES Agency statements— Applications, hearings, determinations, etc.: Weekly receipts, 58379–58380 Bear Swamp Generating Trust No. 1, 58378 Grants and cooperative agreements; availability, etc.: Bear Swamp Generating Trust No. 2, 58378 National brownfields assessment demonstration pilots Bear Swamp II LLC, 58379 program, 58380–58381 Bear Swamp I LLC, 58379 Meetings: Mississippi River Transmission Corp., 58379 National Environmental Justice Advisory Council, 58381 Federal Maritime Commission Reports and guidance documents; availability, etc.: NOTICES Hazardous waste combustion facilities; human health risk Agreements filed, etc., 58384 assessment protocol, 58381–58382 Water pollution; discharge of pollutants (NPDES): Federal Reserve System Indian Reservations, MT, ND, SD, and UT; wastewater NOTICES lagoon systems; general permits, 58382–58384 Meetings; Sunshine Act, 58384–58385

Executive Office of the President Federal Retirement Thrift Investment Board See Presidential Documents NOTICES Meetings; Sunshine Act, 58385

Farm Credit Administration Federal Trade Commission RULES PROPOSED RULES Farm credit system: Trade regulation rules: Capital adequacy and related regulations; miscellaneous Pay-per-call services and other telephone-billed amendments purchases (900-number rule), 58523–58568 Correction, 58289–58290 NOTICES Premerger notification waiting periods; early terminations, 58385–58392 Federal Aviation Administration RULES Financial Management Service Airworthiness directives: See Fiscal Service New Piper Aircraft, Inc., 58290–58291 Class B airspace, 58291–58298 Fiscal Service Class E airspace, 58299–58300 NOTICES PROPOSED RULES Federal debt collection and discount evaluation; Treasury Air carrier certification and operations: current value of funds rate, 58457–58458 Transport category airplanes— Seat safety standards; improved seats retrofit Fish and Wildlife Service requirements; meeting, 58331–58335 RULES NOTICES Endangered Species Convention: Airport noise compatibility program: Appendices and amendments— Indianapolis International Airport, IN, 58454–58455 Bigleaf mahogany, 58325–58327 Meetings: RTCA, Inc., 58455 Food and Drug Administration Passenger facility charges; applications, etc.: NOTICES Grant County International Airport, WA; correction, Agency information collection activities: 58455 Submission for OMB review; comment request, 58397– Riverton Regional Airport, WY, 58455–58456 58398 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Contents V

Forest Service Inspector General Office, Health and Human Services NOTICES Department Environmental statements; notice of intent: PROPOSED RULES Boise National Forest, ID, 58360–58361 Health care programs; fraud and abuse: Meetings: Health Insurance Portability and Accountability Act— Klamath Provincial Advisory Committee, 58361 Data collection program; final adverse actions reporting, 58341–58358 General Services Administration NOTICES RULES Federal health care programs: Federal Acquisition Regulation (FAR): Provider self-disclosure protocol; guidance availability, Alternative dispute resolution (1996), 58594–58595 58399–58403 Civil defense costs, 58599 Costs related to legal/other proceedings, 58599–58600 Interior Department Electronic commerce in Federal procurement, 58590– See Fish and Wildlife Service 58594 See Indian Affairs Bureau Introduction, 58585–58587 See Land Management Bureau Pay-as-you-go pension costs, 58595–58598 See Minerals Management Service Payment due dates, 58601–58602 See National Park Service Service contracts, 58600–58601 NOTICES Small entity compliance guide, 58609–58610 Jurisdictional review by Secretary: Taxpayer identification numbers, 58587–58590 United Mining Corp., 58411–58413 Technical amendments, 58602–58608 Workers with disabilities; employment and advancement, 58598–58599 International Trade Administration NOTICES Health and Human Services Department Antidumping: See Aging Administration Corrosion-resistant carbon steel flat products from— See Centers for Disease Control and Prevention Japan, 58364–58366 See Food and Drug Administration Stainless steel bar from— See Health Resources and Services Administration India, 58367 See Inspector General Office, Health and Human Services Japan, 58366–58367 Department Applications, hearings, determinations, etc.: See National Institutes of Health North Carolina State University, 58367–58368 See Public Health Service PROPOSED RULES Justice Department Health care programs; fraud and abuse: See Drug Enforcement Administration Health Insurance Portability and Accountability Act— RULES Data collection program; final adverse actions National Instant Criminal Background Check System: reporting, 58341–58358 Establishment, privacy and security policies and procedures, and appeals policy for persons denied Health Care Financing Administration firearm acquisition, 58303–58312 See Inspector General Office, Health and Human Services Department Labor Department See Employment and Training Administration Health Resources and Services Administration See Employment Standards Administration NOTICES See Mine Safety and Health Administration Agency information collection activities: See Pension and Welfare Benefits Administration Proposed collection; comment request, 58398–58399 Submission for OMB review; comment request, 58399 Land Management Bureau Housing and Urban Development Department NOTICES PROPOSED RULES Environmental statements; notice of intent: Manufactured home construction and safety standards: Farmington Field Office et al., NM; riparian habitat Incorporation by reference standards, 58569–58584 management plans, 58414–58415 NOTICES Agency information collection activities: Proposed collection; comment request, 58410–58411 Maritime Administration Grants and cooperative agreements; availability, etc.: NOTICES Facilities to assist homeless— Applications, hearings, determinations, etc.: Excess and surplus Federal property, 58411 Marine Transport Corp., 58456–58457

Indian Affairs Bureau Minerals Management Service NOTICES NOTICES Meetings: Environmental statements; availability, etc.: Transportation Equity Act for 21st Century, Section 1115; Gulf of Mexico OCS— regulatory negotiating process, 58413–58414 Oil and gas operations, 58415–58416 VI Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Contents

Mine Safety and Health Administration Native American human remains and associated funerary RULES objects: Coal mine safety and health: American Museum of Natural History, NY— Surface mines— Wampum string (two pieces), 58417 Daily inspection reports; safety standards; technical Peabody Museum of Archaeology and Ethnology, MA— amendment, 58611–58613 Inventory from Plymouth, MA, 58417–58418 NOTICES Safety standard petitions: Nuclear Regulatory Commission U.S. Steel Mining Co., L.L.C., et al., 58430–58431 NOTICES Applications, hearings, determinations, etc.: National Aeronautics and Space Administration PECO Energy Co., 58431–58432 RULES Yankee Atomic Electric Co., 58432 Federal Acquisition Regulation (FAR): Alternative dispute resolution (1996), 58594–58595 Peace Corps Civil defense costs, 58599 NOTICES Costs related to legal/other proceedings, 58599–58600 Agency information collection activities: Electronic commerce in Federal procurement, 58590– Submission for OMB review; comment request, 58432– 58594 58433 Introduction, 58585–58587 Pay-as-you-go pension costs, 58595–58598 Pension and Welfare Benefits Administration Payment due dates, 58601–58602 PROPOSED RULES Service contracts, 58600–58601 Employee Retirement Income Security Act: Small entity compliance guide, 58609–58610 Summary plan description regulations, 58335–58336 Taxpayer identification numbers, 58587–58590 Technical amendments, 58602–58608 Presidential Documents Workers with disabilities; employment and advancement, ADMINISTRATIVE ORDERS 58598–58599 Sudan; continuation of emergency (Notice of October 27, NOTICES 1998), 58615–58617 Meetings: Aeronautics and Space Transportation Technology Public Debt Bureau Advisory Committee, 58431 See Fiscal Service National Institutes of Health Public Health Service NOTICES See Centers for Disease Control and Prevention Grants and cooperative agreements; availability, etc.: See Food and Drug Administration National Cancer Institute— See Health Resources and Services Administration In-vitro modified dendritic cell populations; generation See National Institutes of Health and expansion methods development, 58403– RULES 58404 Fellowships, internships, training: Inventions, Government-owned; availability for licensing, Individuals from disadvantaged backgrounds; NIH 58404–58405 clinical research loan repayment program, 58312– Meetings: 58315 National Institute of Arthritis and Musculoskeletal and PROPOSED RULES Skin Diseases, 58406 Fellowships, internships, training: National Institute of Dental Research, 58405–58406 National Institutes of Health research traineeships, National Institute of Diabetes and Digestive and Kidney 58336–58338 Diseases, 58405 NOTICES National Institute of Mental Health, 58406 Meetings: Secientific Review Center, 58406–58409 Health effects from exposure to methylmercury; scientific Patent licenses; non-exclusive, exclusive, or partially issues relevant to assessment; workshop, 58409– exclusive: 58410 BioQuest, Inc., 58409 Research and Special Programs Administration National Oceanic and Atmospheric Administration RULES RULES Hazardous materials: Fishery conservation and management: Hazardous materials transportation— Caribbean, Gulf, and South Atlantic fisheries— Miscellaneous amendments; reconsideration petitions Red snapper, 58327–58328 denied, 58323–58324 Northeastern United States fisheries— Pipeline safety: Vessel monitoring system, 58328–58329 Drug use and alcohol misuse control in natural gas, PROPOSED RULES liquefied natural gas, and hazardous liquid pipeline Fishery conservation and management: operations; random positive drug testing rate, 58324– West Coast States and Western Pacific fisheries— 58325 Northern anchovy, 58359 PROPOSED RULES Hazardous materials: National Park Service Hazardous materials transportation— NOTICES DOT cylinder specifications and maintenance, Meetings: requalification, and repair requirements, 58459– National Capital Memorial Commission, 58416–58417 58521 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Contents VII

Rural Utilities Service Transportation Department RULES See Federal Aviation Administration Electric loans: See Maritime Administration Electric program standard contract forms, 58283–58288 See Research and Special Programs Administration See Surface Transportation Board Securities and Exchange Commission NOTICES NOTICES Agency information collection activities: Agency information collection activities: Submission for OMB review; comment request, 58451– Submission for OMB review; comment request, 58433 58454 Meetings; Sunshine Act, 58434 Self-regulatory organizations; proposed rule changes: Treasury Department Chicago Board Options Exchange, Inc., 58434–58435 See Fiscal Service New York Stock Exchange, Inc., 58435–58438 Options Clearing Corp., 58438–58439 Veterans Affairs Department Pacific Exchange, Inc., 58439–58442 PROPOSED RULES Adjudication; pensions, compensation, dependency, etc.: Well grounded claims/duty to assist, 58336 Small Business Administration NOTICES Disaster loan areas: Separate Parts In This Issue Kansas, 58442 Mississippi, 58442 Part II Reporting and recordkeeping requirements, 58442–58444 Department of Transportation, Research and Special Programs Administration, 58459–58521 Social Security Administration NOTICES Part III Disability determination procedures: Federal Trade Commission, 58523–58568 Testing modifications— Disability determination services full process model Part IV with rationale summary, 58444 Department of Housing and Urban Development, 58569– Social security acquiescence rulings: 58584 Minnesota v. Apfel; coverage for employees under Federal-State Section 218 agreement or modification Part V and application of student services exclusion from Department of Defense, General Services Administration, coverage to services performed by medical residents, National Aeronautics and Space Administration, 58429 58585–58610 Social security benefits: Cost of living increase, SSI monthly benefit amounts Part VI increase, average of total wages, contribution and Department of Labor, Mine Safety and Health benefit base, etc., 58446–58451 Administration, 58611–58613

Surface Transportation Board Part VII PROPOSED RULES The President, 58615–58617 Rate procedures: Service inadequacies; expedited relief, 58358–58359 Reader Aids Textile Agreements Implementation Committee Consult the Reader Aids section at the end of this issue for See Committee for the Implementation of Textile phone numbers, online resources, finding aids, reminders, Agreements and notice of recently enacted public laws. VIII Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Contents

CFR PARTS AFFECTED IN THIS ISSUE

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

3 CFR 58602 2...... 58590 Executive Orders: 4 (2 documents) ...... 58587, 13067 (See Notice of 58590 October 27, 1998)...... 58617 5...... 58590 Administrative Orders: 6 (2 documents) ...... 58594, Notice of October 27, 58602 1998 ...... 58617 13 (2 documents) ...... 58587, 58590 7 CFR 14 (3 documents) ...... 58587, 1724...... 58283 58590, 58602 1726...... 58283 15 (3 documents) ...... 58587, 10 CFR 58595, 58602 1003...... 58288 19...... 58602 Proposed Rules: 22...... 58598 24...... 58594 430...... 58330 31 (3 documents) ...... 58595, 12 CFR 58599 611...... 58289 32 (4 documents) ...... 58990, 615...... 58289 58600, 58601, 58602 620...... 58289 33 (2 documents) ...... 58594, 627...... 58289 58602 14 CFR 36...... 58602 39...... 58290 37...... 58600 71 (2 documents) ...... 58291, 41...... 58602 58299 52 (5 documents) ...... 58587, 58594, 58595, 58598, 58602 Proposed Rules: 53...... 58602 121...... 58331 49 CFR 16 CFR 177...... 58323 Proposed Rules: 199...... 58324 308...... 58524 Proposed Rules: 17 CFR 107...... 58460 4...... 58300 171...... 58460 172...... 58460 24 CFR 173...... 58460 Proposed Rules: 177...... 58460 3280...... 58570 178...... 58460 28 CFR 180...... 58460 25...... 58303 1146...... 58358 29 CFR 50 CFR 23...... 58325 Proposed Rules: 622...... 58327 2520...... 58335 648...... 58328 2560...... 58335 Proposed Rules: 30 CFR 660...... 58359 77...... 58612 38 CFR Proposed Rules: 3...... 58336 42 CFR 68a...... 58312 Proposed Rules: 63...... 58336 44 CFR 65 (2 documents) ...... 58316, 58319 67...... 58338 Proposed Rules: 67...... 58321 45 CFR Proposed Rules: 61 (2 documents)..... 341 47 CFR Proposed Rules: 73...... 58358 74...... 58358 48 CFR Ch. 1 (2 documents) ...... 58586, 58609 1 (2 documents) ...... 58587, 58283

Rules and Regulations Federal Register Vol. 63, No. 210

Friday, October 30, 1998

This section of the FEDERAL REGISTER Executive Order 12866 Information Collection and contains regulatory documents having general Recordkeeping Requirements applicability and legal effect, most of which This final rule has been determined to are keyed to and codified in the Code of be not significant for the purposes of The recordkeeping and reporting Federal Regulations, which is published under Executive Order 12866 and, therefore, burdens contained in this final rule have been submitted to OMB for 50 titles pursuant to 44 U.S.C. 1510. has not been reviewed by the Office of approval. The paperwork contained in Management and Budget (OMB). The Code of Federal Regulations is sold by this rule will not be effective until the Superintendent of Documents. Prices of Executive Order 12988 approved by OMB. new books are listed in the first FEDERAL Send questions or comments REGISTER issue of each week. This final rule has been reviewed regarding any aspect of this collection of under Executive Order 12988, Civil information, including suggestions for Justice Reform. RUS has determined DEPARTMENT OF AGRICULTURE reducing the burden, to F. Lamont that this rule meets the applicable Heppe, Jr., Director, Program Rural Utilities Service standards provided in section 3 of the Development and Regulatory Analysis, Executive Order. In addition, all state Rural Utilities Service, U.S. Department 7 CFR Parts 1724 and 1726 and local laws and regulations that are of Agriculture, Stop 1522, 1400 in conflict with this rule will be Independence Avenue, SW., RIN 0572±AB42 preempted. No retroactive effect will be Washington, DC 20250–1522. given to this rule and in accordance Electric Program Standard Contract Unfunded Mandates with § 212(e) of the Department of Forms Agriculture Reorganization Act of 1994 This final rule contains no Federal AGENCY: Rural Utilities Service, USDA. (7 U.S.C. § 6912(e)) administrative mandates (under the regulatory provision of Title II of the Unfunded ACTION: Final rule. appeal procedures, if any, must be exhausted before an action against the Mandates Reform Act of 1995) for State, SUMMARY: The Rural Utilities Service Department or its agencies may be local, and tribal governments or the (RUS) is amending its regulations to initiated. private sector. Thus, this final rule is change the manner in which it not subject to the requirements of publishes the standard forms of Regulatory Flexibility Act Certification sections 202 and 205 of the Unfunded Mandates Reform Act of 1995. contracts that borrowers are required to The Administrator of RUS has use when contracting for construction, determined that this rule will not have Background procurement, engineering services, or significant impact on a substantial architectural services financed through RUS will change the manner in which number of small entities defined in the loans made or guaranteed by RUS. The it publishes the standard forms of Regulatory Flexibility Act (5 U.S.C. 601 required contract forms are currently contracts that borrowers are required to et seq.), and therefore, the Regulatory published in text format in the Code of use when contracting for construction, Flexibility Act does not apply to this Federal Regulations (CFR). This final procurement, architectural, or rule. rule would eliminate this unnecessary engineering services financed through and burdensome publication in the CFR. loans made or guaranteed by RUS. National Environmental Policy Act The standard loan agreement between DATES: Effective October 30, 1998. Certification RUS and its borrowers provides that, in FOR FURTHER INFORMATION CONTACT: F. The Administrator of RUS has accordance with applicable RUS Lamont Heppe, Jr., Director, Program determined that this final rule will not regulations, the borrower shall use Development and Regulatory Analysis, significantly affect the quality of the standard forms of contracts promulgated Rural Utilities Service, U.S. Department human environment as defined by the by RUS for construction, procurement, of Agriculture, Stop 1522, 1400 National Environmental Policy Act of engineering services, and architectural Independence Avenue, SW., 1969 (42 U.S.C. 4321 et seq.). Therefore, services financed by a loan made or Washington, DC 20250–1522. guaranteed by RUS. See section 5.16 of this action does not require an Telephone: (202) 720–9550. FAX: (202) appendix A to subpart C to part 1718. environmental impact statement or 720–4120. E-mail: [email protected]. RUS currently implements these assessment. SUPPLEMENTARY INFORMATION: provisions of its loan agreement through Catalog of Federal Domestic Assistance parts 1724 and 1726 which generally Executive Order 12372 prescribe when and how borrowers are This final rule is excluded from the The program described by this final required to use RUS standard form scope of Executive Order 12372, rule is listed in the Catalog of Federal contracts and identify the standard Intergovernmental Consultation, which Domestic Assistance programs under contract forms to be used. Title 7 CFR may require consultation with State and No. 10.850, Rural Electrification Loans part 1724 covers engineering and local officials. A notice of final rule and Loan Guarantees. This catalog is architectural services contract forms, entitled ‘‘Department Programs and available on a subscription basis from and 7 CFR part 1726 covers construction Activities Excluded from Executive the Superintendent of Documents, the and procurement contract forms. Order 12372,’’ (50 FR 47034) exempted United States Government Printing The required standard contract forms RUS loans and loan guarantees from Office, Washington, DC 20402–9325, currently are published in full text coverage under this order. telephone number (202) 512–1800. format in title 7 of the CFR (see, e.g., 58284 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

§§ 1724.74–1724.76 and § § 1726.312– list of standard contract forms set forth PART 1724ÐELECTRIC 1726.352.) RUS also publishes forms of in sections 1724.74 or 1726.304 or both. ENGINEERING, ARCHITECTURAL contracts which serve as guidance to The revision may change the existing SERVICES AND DESIGN POLICIES borrowers and which borrowers may list by, for example, identifying a new AND PROCEDURES use at their discretion. All of these required contract form or changing the forms are available, in a format suitable issuance date of a listed form. The 1. The authority citation for part 1724 for use as a contract, from RUS or the supplementary information section of continues to read as follows: Government Printing Office (GPO), as the FR notice will describe the Authority: 7 U.S.C. 901 et seq., 1921 et provided in § 1724.70 and § 1726.300. If substantive change in the identified seq., 6941 et seq. an RUS borrower is required by part standard contract form and may append 2. Section 1724.3 is amended by 1724 or 1726 to use a form of contract, the standard contract form or relevant adding definitions in alphabetical order the borrower must use the contract form portions thereof. As appropriate, the to read as follows: in that format available from RUS or notice will provide an opportunity for GPO. RUS believes that the current interested persons to provide comments. § 1724.3 Definitions. system of publishing the complete text A copy of each such Federal Register * * * * * of the contract forms in the CFR is notice will be sent by regular or GPO means Government Printing unnecessary and that, consistent with Office. the agency’s objective to streamline electronic mail to all borrowers. regulatory text and to provide Finally, this final rule clarifies certain * * * * * borrowers’ with a user friendly aspects of the requirement that RE Act means the Rural Electrification regulatory system, the complete text of borrowers use RUS standard forms of Act of 1936 as amended (7 U.S.C. 901 the required contract forms should no contract. Absent a waiver by RUS, et seq.). longer be published in the CFR. borrowers are required to use those RUS means Rural Utilities Service Rather than publish the complete text standard forms in effect as of the date * * * * * of the standard contract forms in the the borrower issues bid package to 3. Section 1724.10 is added to subpart CFR, RUS will identify in § 1724.74 and bidders. Borrowers can determine the A to read as follows: § 1726.304 all required contract forms appropriate standard form based on the by number, issue date, name, purpose, § 1724.10 Standard forms of contracts for issuance date of the form as identified borrowers. and source. To the extent that RUS may by the most recently published list set The standard loan agreement between be required to publish its forms of forth in § 1724.74 and § 1726.304. RUS RUS and its borrowers provides that, in contract pursuant to section 552(a) of may waive for good cause, on a case by accordance with applicable RUS the Administrative Procedure Act (APA) case basis, the requirement to use RUS regulations in this chapter, the borrower (5 U.S.C. 552(a)) or otherwise, such standard forms of contracts pursuant to requirement is met by the identification shall use standard forms of contracts procedures set forth in the regulation. A promulgated by RUS for construction, of the standard contract forms in parts failure on the part of the borrower to use 1724 and 1726. Moreover, RUS provides procurement, engineering services, and standard forms of contracts as all borrowers with actual notice of the architectural services financed by a loan prescribed in parts 1724 or 1726 is a forms of contract they are required to made or guaranteed by RUS. This part violation of the terms of its loan use in contracting. As the rule states in implements these provisions of the RUS § 1724.73 and § 1726.303, upon initially agreement with RUS and RUS may loan agreement. Subparts A through E of entering into a loan agreement with exercise any and all remedies available this part prescribe when and how RUS, borrowers are provided with under the terms of the agreement or borrowers are required to use RUS copies of contract forms. Thereafter, otherwise. Consistent with the changes standard forms of contracts for should RUS promulgate new or revised discussed above, RUS is amending those engineering and architectural services. standard contract form(s), following the sections of existing regulations that Subpart F of this part prescribes the procedures discussed below, RUS will currently set forth the full text of procedures that RUS follows in revise the list of standard forms as set contracts for the purpose of deleting promulgating standard contract forms forth in § 1724.74 or § 1726.304 or both such text. Deletion of the full text from and identifies those contract forms that and send the new or revised standard the CFR will not affect the requirement borrowers are required to use for forms to all affected borrowers by that borrowers use the prescribed forms engineering and architectural services. regular or electronic mail. Borrowers, as of contracts. The rule also relocates and 4. Section 1724.70 is revised to read well as the public, can obtain copies of makes minor revisions to information as follows: all standard contract forms from RUS or regarding contractors bonds and interest GPO. on overdue accounts. § 1724.70 Standard forms of contracts for In addition to identifying standard borrowers. forms and eliminating full publication List of Subjects (a) General. The standard loan of the text of each standard contract 7 CFR Part 1724 agreement between RUS and its form in the CFR, RUS will clarify the borrowers provides that, in accordance procedures that will be followed when Electric power, Loan programs— with applicable RUS regulations in this RUS promulgates a new or revised energy, Reporting and recordkeeping chapter, the borrower shall use standard standard contract form. To the extent requirements, Rural areas. forms of contract promulgated by RUS that RUS is required by section 553 of for construction, procurement, the APA (5 U.S.C. 553) or otherwise to 7 CFR Part 1726 engineering services, and architectural provide notice in the FR and an Electric power, Loan programs- services financed by a loan made or opportunity for public comment in energy, Reporting and recordkeeping guaranteed by RUS. (See section 5.16 of appendix A to subpart C of part 1718 of promulgating standard contract forms, requirements, Rural areas. RUS will publish a FR notice of this chapter.) This subpart prescribes rulemaking announcing, as appropriate, Accordingly, 7 CFR Chapter XVII is RUS procedures in promulgating a revision in, or a proposal to revise the amended as follows: electric program standard contract forms Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58285 and identifies those forms that (e) Violations. A failure on the part of 8. Section 1724.74 is revised to read borrowers are required to use. the borrower to use listed contracts as as follows: (b) Contract forms. RUS promulgates prescribed in this part is a violation of the terms of its loan agreement with § 1724.74 List of electric program standard standard contract forms, identified in contract forms. the List of Required Contract Forms, RUS and RUS may exercise any and all § 1724.74(c), that borrowers are required remedies available under the terms of (a) General. The following is a list of to use in accordance with the provisions the agreement or otherwise. RUS electric program standard contract of this part. In addition, RUS 6. Section 1724.72 is added to read as forms for architectural and engineering promulgates standard contract forms follows: services. Paragraph (c) of this section identified in the List of Guidance contains the list of required contract Contract Forms contained in § 1724.72 Notice and publication of listed forms, i.e., those forms of contracts that § 1724.74(c) that the borrowers may but contract forms. borrowers are required to use by the are not required to use in the planning, (a) Notice. Upon initially entering into terms of their RUS loan agreements as design, and construction of their electric a loan agreement with RUS, borrowers implemented by the provisions of this systems. Borrowers are not required to will be provided with all listed contract part. Paragraph (d) of this section use these guidance contract forms in the forms. Thereafter, new or revised listed contains the list of guidance contract absence of an agreement to do so. contract forms promulgated by RUS, forms, i.e., those forms of contracts 5. Section 1724.71 is revised to read including RUS approved exceptions and provided as guidance to borrowers in as follows: alternatives, will be sent by regular or the planning, design, and construction electronic mail to the address of the of their systems. All of these forms are § 1724.71 Borrower contractual borrower as identified in its loan available from RUS. See § 1724.72(b) for obligations. agreement with RUS. availability of these forms. (a) Loan agreement. As a condition of (b) Availability. Listed contract forms (b) Issuance date. Where required by a loan or loan guarantee under the RE are published by RUS. Interested parties this part to use a standard form of Act, borrowers are normally required to may obtain the forms from: Rural contract in connection with RUS enter into RUS loan agreements Utilities Service, Program Development financing, the borrower shall use that pursuant to which the borrower agrees and Regulatory Analysis, U.S. form identified by issuance date in the to use RUS standard forms of contracts Department of Agriculture, Stop 1522, List of Required Contract Forms in for construction, procurement, 1400 Independence Avenue, SW, Stop paragraph (c) of this section, as most engineering services and architectural 1522, Washington, DC 20250–1522, recently published as of the date the services financed in whole or in part by telephone number (202) 720–8674. The borrower executes the contract. the RUS loan. Normally, this obligation list of contract forms can be found in (c) List of required contract forms. (1) is contained in section 5.16 of the loan § 1724.74(c), List of Required Contract RUS Form 211, Rev. 6–98, Engineering contract. To comply with the provisions Forms. Service Contract for the Design and Construction of a Generating Plant. This of the loan agreements as implemented 7. Section 1724.73 is added to read as form is used for engineering services for by this part, borrowers must use those follows: forms of contract (hereinafter sometimes generating plant construction. called ‘‘listed contract forms’’) § 1724.73 Promulgation of new or revised (2) RUS Form 220, Rev. 6–98, identified in the List of Required contract forms. Architectural Services Contract. This Standard Contract Forms contained in RUS may, from time to time, form is used for architectural services § 1724.74(c). undertake to promulgate new contract for building construction. (b) Compliance. If a borrower is forms or revise or eliminate existing (3) RUS Form 236, Rev. 6–98, required by this part to use a listed contract forms. In so doing, RUS shall Engineering Service Contract—Electric contract form, the borrower shall use the publish notice of rulemaking in the System Design and Construction. This listed contract form in the format Federal Register announcing, as form is used for engineering services for available from RUS. The forms shall not appropriate, a revision in, or a proposal distribution, transmission, substation, be retyped, changed, modified, or to amend § 1724.74, List of Electric and communications and control altered in any manner not specifically Program Standard Contract Forms. The facilities. authorized in this part or approved by amendment may change the existing (d) List of guidance contract forms. (1) RUS in writing. Any modifications identification of a listed contract form; RUS Form 179, Rev. 9–66, Architects approved by RUS must be clearly shown for example, changing the issuance date and Engineers Qualifications. This form so as to indicate the difference from the of a listed contract form or by is used to document architects and listed contract form. Electronic identifying a new required contract engineers qualifications. reproduction is not acceptable. form. The notice of rulemaking will (2) RUS Form 215, Rev. 5–67, (c) Amendment. Where a borrower describe the new standard contract form Engineering Service Contract—System has entered into a contract in the form or the substantive change in the listed Planning. This form is used for required by this part, no change may be contract form, as the case may be, and engineering services for system made in the terms of the contract, by the issues involved. The standard planning. amendment, waiver or otherwise, contract form or relevant portions (3) RUS Form 234, Rev. 3–57, Final without the prior written approval of thereof may be appended to the Statement of Engineering Fee. This form RUS. supplementary information section of is used for the closeout of engineering (d) Waiver. RUS may waive for good the notice of rulemaking. As services contracts. cause, on a case by case basis, the appropriate, the notice of rulemaking (4) RUS Form 241, Rev. 3–56, requirements imposed on a borrower shall provide an opportunity for Amendment of Engineering Service pursuant to this part. Borrowers seeking interested persons to provide comments. Contract. This form is used for a waiver by RUS must provide RUS A copy of each such Federal Register amending engineering service contracts. with a written request explaining the document shall be sent by regular or (5) RUS Form 244, Rev. 12–55, need for the waiver. electronic mail to all borrowers. Engineering Service Contract—Special 58286 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

Services. This form is used for § 1726.26 Interest on overdue accounts. this chapter.) This subpart prescribes miscellaneous engineering services. Certain RUS contract forms contain a RUS procedures in promulgating (6) RUS Form 258, Rev. 4–58, provision concerning payment of standard contract forms and identifies Amendment of Engineering Service interest on overdue accounts. Prior to those forms that borrowers are required Contract—Additional Project. This form issuing the invitation to bidders, the to use. is used for amending engineering borrower must insert an interest rate (b) Contract forms. RUS promulgates service contracts to add an additional equal to the lowest ‘‘Prime Rate’’ listed standard contract forms, identified in project. in the ‘‘Money Rates’’ section of the the List of Required Contract Forms, (7) RUS Form 284, Rev. 2–84, Final Wall Street Journal on the date such § 1726.304(c), that borrowers are Statement of Cost for Architectural invitation to bid is issued. If no prime required to use in accordance with the Service. This form is used for the rate is published on that date, the last provisions of this part. In addition, RUS closeout of architectural services such rate published prior to that date promulgates standard contract forms contracts. must be used. The rate must not, contained in § 1726.304(d) that the however, exceed the maximum rate borrowers may but are not required to (8) RUS Form 297, Rev. 12–55, allowed by any applicable state law. use in the construction of their electric Engineering Service Contract—Retainer 13. Section 1726.27 is added to read systems. Borrowers are not required to for Consultation Service. This form is as follows: use these guidance contract forms in the used for engineering services for absence of an agreement to do so. consultation service on a retainer basis. § 1726.27 Contractor's bonds. 15. Section 1726.301 is revised to read (9) RUS Form 459, Rev. 9–58, (a) RUS Form 168b, Contractor’s as follows: Engineering Service Contract—Power Bond, shall be used when a contractor’s Study. This form is used for engineering bond is required by RUS Forms 200, § 1726.301 Borrower contractual services for power studies. 201, 203, 257, 764, 786, 790, 792, 830, obligations. or 831 unless the contractor’s surety has (a) Loan agreement. As a condition of §§ 1724.75 and 1724.76 [Removed and accepted a Small Business a loan or loan guarantee under the Rural Reserved] Administration guarantee and the Electrification Act, borrowers are 9. Sections 1724.75 and 1724.76 are contract is for $1 million or less. normally required to enter into RUS removed and reserved. (b) RUS Form 168c, Contractor’s loan agreements pursuant to which the Bond, shall be used when a contractor’s borrower agrees to use RUS standard PART 1726ÐELECTRIC SYSTEM bond is required by RUS Form 200, 201, forms of contracts for construction, CONSTRUCTION POLICIES AND 203, 257, 764, 786, 790, 792, 830, or 831 procurement, engineering services and PROCEDURES and the contractor’s surety has accepted architectural services financed in whole a Small Business Administration or in part by the RUS loan. Normally, 10. The authority citation for part guarantee and the contract is for $1 this obligation is contained in section 1726 is revised to read as follows: million or less. 5.16 of the loan contract. To comply Authority: 7 U.S.C. 901 et seq., 1921 et (c) Surety companies providing with the provisions of the loan seq., 6941 et seq. contractor’s bonds shall be listed as agreements as implemented by this part, borrowers must use those forms of 11. Section 1726.24 is amended by acceptable sureties in the U.S. contract (hereinafter sometimes called revising the section heading and Department of the Treasury Circular No. ‘‘listed contract forms’’) identified in the paragraph (a) to read as follows: 570, Companies Holding Certificates of Authority as Acceptable Sureties on List of Required Contract Forms, § 1726.24 Standard forms of contracts for Federal Bonds and as Acceptable § 1724.304(c). borrowers. Reinsuring Companies. Copies of the (b) Compliance. If a borrower is required by this part or by the loan (a) General. The standard loan circular and interim changes may be agreement to use a listed contract form, agreement between RUS and the obtained directly from the Government the borrower shall use the listed borrowers provides that, in accordance Printing Office (202) 512–1800. Interim contracts in the format available from with applicable RUS regulations in this changes are published in the Federal RUS or GPO. The forms shall not be chapter, the borrower shall use standard Register as they occur. The list is also retyped, changed, modified, or altered forms of contracts promulgated by RUS available through the Internet at http:// in any manner not specifically for construction, procurement, www.fms.treas.gov/c570/index.html authorized in this part or approved by engineering services, and architectural and on the Department of the Treasury’s RUS in writing. Any modifications services financed by a loan made or computerized public bulletin board at approved by RUS must be clearly shown guaranteed by RUS. This part (202) 874–6887. so as to indicate the difference from the implements these provisions of the RUS 14. Section 1726.300 is revised to read listed contract form. Electronic loan agreement. Subparts A through H as follows: reproduction is not acceptable except and J of this part prescribe when and § 1726.300 Standard forms of contracts for where indicated in § 1726.304(c). how borrowers are required to use RUS borrowers. (c) Amendment. Where a borrower standard forms of contracts in (a) General. The standard loan has entered into a contract in the form procurement and construction. Subpart agreement between RUS and its required by this part, no change may be I of this part prescribes the procedures borrowers provides that, in accordance made in the terms of the contract, by that RUS follows in promulgating with applicable RUS regulations in this amendment, waiver or otherwise, standard contract forms and identifies chapter, the borrower shall use standard without the prior written approval of those contract forms that borrowers are forms of contract promulgated by RUS RUS. required to use for procurement and for construction, procurement, (d) Waiver. RUS may waive for good construction. engineering services, and architectural cause, on a case by case basis, the * * * * * services financed by a loan made or requirements imposed on a borrower 12. Section 1726.26 is added to read guaranteed by RUS. (See section 5.16 of pursuant to this part. Borrowers seeking as follows: appendix A to subpart C of part 1718 of a waiver by RUS must provide RUS Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58287 with a written request explaining the supplementary information section of for equipment purchases. This form is need for the waiver. Waiver requests the notice of rulemaking. As available from RUS. should be made prior to issuing the bid appropriate, the document shall provide (7) RUS Form 200, Rev. 2–95, package to bidders. an opportunity for interested persons to Construction Contract—Generating. (e) Violations. A failure on the part of provide comments. A copy of each such This form is used for generating plant the borrower to use listed contracts as Federal Register document will be sent construction or for the furnishing and prescribed in this part is a violation of by regular or electronic mail to all installation of major items of the terms of its loan agreement with borrowers. equipment. This form is available from RUS and RUS may exercise any and all 18. Section 1726.304 is added to read RUS. remedies available under the terms of as follows: (8) RUS Form 201, Rev. 2–95, Right- the agreement or otherwise. of-Way Clearing Contract. This form is 16. Section 1726.302 is revised to read § 1726.304 List of electric program used for distribution line right-of-way as follows: standard contract forms. clearing work which is to be performed (a) General. This section contains a separate from line construction. This § 1726.302 Notice and publication of listed list of RUS electric program standard form is available from RUS. contract forms. contract forms. Paragraph (c) of this (9) RUS Form 203, Rev. 2–95, (a) Notice. Upon initially entering into section contains the list of required Transmission System Right-of-Way a loan agreement with RUS, borrowers contract forms, i.e., those forms of Clearing Contract. This form is used for will be provided with all listed contract contracts that borrowers are required to transmission right-of-way clearing work forms. Thereafter, new or revised listed use by the terms of their RUS loan which is to be performed separate from contract forms promulgated by RUS, agreements as implemented by the line construction. This form is available including RUS approved exceptions and provisions of this part. Paragraph (d) of from RUS. alternatives, will be sent by regular or this section sets forth the list of (10) RUS Form 213, Rev. 2–95, electronic mail to the address of the guidance contract forms, i.e., those Certificate (‘‘Buy American’’). This form borrower as identified in its loan forms of contracts provided as guidance is used to document compliance with agreement with RUS. to borrowers in the construction of their the ‘‘Buy American’’ requirement. This (b) Availability. Listed contract forms systems. See § 1726.302(b) for form is available from RUS. are available from either RUS or the availability of these forms. (11) RUS Form 224, Rev. 2–95, Waiver Government Printing Office (GPO), as (b) Issuance date. Where required by and Release of Lien. This form is used indicated in § 1726.304. Interested this part to use a standard form of for the closeout of and is included in parties may obtain the forms from: Rural contract in connection with RUS RUS Forms 200, 203, 764, 786, 830, and Utilities Service, Program Development financing, the borrower shall use that 831. and Regulatory Analysis, U.S. form identified by issuance date in the (12) RUS Form 231, Rev. 2–95, Department of Agriculture, Stop 1522, List of Required Contract Forms in Certificate of Contractor. This form is 1400 Independence Avenue, SW, paragraph (c) of this section, as most used for the closeout of and is included Washington DC 20250–1522, telephone recently published as of the date the in RUS Forms 200, 203, 764, 786, 830, number (202) 720–8674, or the borrower issues the bid package to and 831. Superintendent of Documents, P.O. Box bidders. (13) RUS Form 238, Rev. 2–95, 371954, Pittsburgh, Pennsylvania (c) List of required contract forms. (1) Construction or Equipment Contract 15250–7954, telephone number (202) RUS Form 168b, Rev. 2–95, Contractor’s Amendment. This form is used to 512–1800. The listed contract forms can Bond. This form is used to obtain a amend contracts except distribution line be found in § 1724.304(c), List of surety bond and is included in RUS construction contracts. This form is Required Contract Forms. Forms 200, 201, 203, 257, 764, 786, 790, available from RUS. (14) RUS Form 251, Rev. 2–95, 17. Section 1726.303 is revised to read 792, 830, and 831. as follows: Material Receipt. This form is used to (2) RUS Form 168c, Rev. 2–95, document receipt of owner furnished § 1726.303 Promulgation of new or revised Contractor’s Bond (less than $1 million). materials and is included in RUS Forms contract forms. This form is used in lieu of RUS Form 764, 830, and 831. Electronic RUS may, from time to time, 168b to obtain a surety bond when reproduction is acceptable for RUS undertake to promulgate new contract contractor’s surety has accepted a Small Form 251. forms or revise or eliminate existing Business Administration guarantee. (15) RUS Form 254, Rev. 2–95, contract forms. In so doing, RUS shall This form is available from RUS. Construction Inventory. This form is publish notice of rulemaking in the (3) RUS Form 180, Rev. 2–95, used for the closeout of RUS Forms 203, Federal Register announcing, as Construction Contract Amendment. 764, 830, and 831. This form is available appropriate, a revision in, or a proposal This form is used to amend distribution from RUS. Electronic reproduction is to amend § 1726.304, List of Electric line construction contracts. This form is acceptable for RUS Form 254. Program Standard Contract Forms. The available from RUS. (16) RUS Form 257, Rev. 2–95, amendment may change the existing (4) RUS Form 181, Rev. 2–95, Contract to Construct Buildings. This identification of a listed contract form; Certificate of Completion, Contract form is used to construct headquarters for example, changing the issuance date Construction for Buildings. This form is buildings and other structure of a listed contract form or by used for the closeout of RUS Form 257. construction. This form is available identifying a new required contract This form is available from RUS. from GPO. form. The notice of rulemaking will (5) RUS Form 187, Rev. 2–95, (17) RUS Form 307, Rev. 2–95, Bid describe the new standard contract form Certificate of Completion, Contract Bond. This form is used to obtain a bid or the substantive change in the listed Construction. This form is used for the bond and is included in RUS Forms contract form, as the case may be, and closeout of and is included in RUS 200, 203, 257, 764, 830, and 831. the issues involved. The standard Forms 200, 203, 764, 786, 830, and 831. (18) RUS Form 764, Rev. 2–95, contract form or relevant portions (6) RUS Form 198, Rev. 2–95, Substation and Switching Station thereof may be appended to the Equipment Contract. This form is used Erection Contract. This form is used to 58288 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations construct substations and switching acceptance tests at the project site. This has required the relocation of OHA’s stations. This form is available from form is available from RUS. Public Reference Room from the RUS. Forrestal Building, 1000 Independence (19) RUS Form 786, Rev. 2–95, §§ 1726.310Ð1726.352 [Removed and Ave., S.W., Washington, D.C., to 950 Reserved] Electric System Communications and L’Enfant Plaza, Washington, D.C. In Control Equipment Contract. This form 18. Sections 1726.310 through addition, OHA has determined that is used for delivery and installation of 1726.352 are removed and reserved. significant cost savings could be equipment for system communications. Dated: October 23, 1998. achieved by discontinuing OHA’s This form is available from RUS. Jill Long Thompson, current practice of publishing certain (20) RUS Form 790, Rev. 2–95, Under Secretary, Rural Development. information in the Federal Register. Distribution Line Extension [FR Doc. 98–29131 Filed 10–29–98; 8:45 am] Instead, OHA will publish this Construction Contract (Labor and BILLING CODE 3410±15±P information on its Internet web site at Materials). This form is used for limited www.oha.doe.gov. By placing this distribution construction accounted for information on the Internet, OHA will under work order procedure. This form DEPARTMENT OF ENERGY be making it more accessible to the is available from GPO. majority of Americans, while conserving (21) RUS Form 792, Rev. 2–95, 10 CFR Part 1003 economic and natural resources. These Distribution Line Extension rules are merely technical in nature and Construction Contract (Labor Only). RIN 1901±AA55 do not effect any substantive changes in This form is used for limited Amendments to Office Of Hearings and the existing regulations. distribution construction accounted for Appeals Procedural Regulations II. Procedural Requirements under work order procedure. This form is available from GPO. AGENCY: Office of Hearings and Appeals, A. Executive Order 12866 (22) RUS Form 792b, Rev. 2–95, DOE. Today’s regulatory action has been Certificate of Construction and ACTION: Final rule. determined not to be a ‘‘significant Indemnity Agreement. This form is used regulatory action’’ under Executive SUMMARY: The Department of Energy for the closeout of and is included in Order 12866, ‘‘Regulatory Planning and (DOE) adopts several minor technical RUS Forms 201, 790, 792. Review’’ (58 FR 51735, October 4, 1993). amendments to its procedural (23) RUS Form 792c, Rev. 2–95, Accordingly, today’s action was not regulations governing most proceedings Supplemental Contract for Additional subject to review under the Executive before the Office of Hearings and Project. This form is used to amend Order by the Office of Information and Appeals (OHA), a quasi-judicial branch other contracts and is included in RUS Regulatory Affairs. Forms 201, 790, 792. of the DOE, pertaining to matters within (24) RUS Form 830, Rev. 2–95, the jurisdiction of that Office. These B. Executive Order 12612 Electric System Construction Contract amendments adjust OHA’s procedural Executive Order 12612 requires that (Labor and Materials). This form is used regulations to reflect the physical regulations or rules be reviewed for for distribution and transmission line relocation of its public reference room direct effects on States, on the project construction. This form is and a change of the public reference relationship between the national available from GPO. room’s business hours. In addition, government and the States, or in the (25) RUS Form 831, Rev. 2–95, these regulatory amendments distribution of power among various Electric Transmission Construction implement OHA’s new policy of levels of government. If there are Contract (Labor and Materials). This publishing certain information on its sufficient substantial direct effects, then form is used for transmission line Internet World Wide Web site rather Executive Order 12612 requires project construction. This form is than publishing that information in the preparation of a federalism assessment available from GPO. Federal Register. to be used in all decisions involved in (d) List of guidance contract forms. (1) DATES: This rule is effective November promulgating or implementing a RUS Form 172, Rev. 9–58, Certificate of 30, 1998. regulation or rule. Today’s regulations Inspection, Contract Construction. This FOR FURTHER INFORMATION CONTACT: do not affect any traditional State form is used to notify RUS that Steven L. Fine, Attorney-Examiner, or function. There are therefore no construction is ready for inspection. Robert B. Palmer, Attorney-Examiner, substantial direct effects requiring This form is available from RUS. Office of Hearings and Appeals, U.S. evaluation or assessment under (2) RUS Form 173, Rev. 3–55, Department of Energy 1000, Executive Order 12612. Materials Contract. This form is used for Independence Avenue, SW., distribution, transmission, and general Washington, DC 20585– C. Regulatory Flexibility Analysis plant material purchases. This form is 0107,Telephone: (202) 426–1449, With regard to regulations for which available from RUS. Internet: [email protected] and a general notice of proposed rulemaking (3) RUS Form 274, Rev. 6–81, Bidder’s [email protected]. is required by law, the Regulatory Qualifications. This form is used to SUPPLEMENTARY INFORMATION: Flexibility Act (5 U.S.C. 601 et seq.) document bidder’s qualifications. This requires preparation of a regulatory form is available from RUS. I. Discussion flexibility analysis unless the issuing (4) RUS Form 282, Rev. 11–53, These regulatory amendments result agency certifies that the regulations will Subcontract. This form is used for from OHA’s continuing reinvention not have a significant economic impact subcontracting. This form is available efforts. In order to serve the public more on a substantial number of small from RUS. efficiently, the OHA has consolidated entities. This action only effects minor (5) RUS Form 458, Rev. 3–55, all of its operations in one work space. technical changes in existing procedural Materials Contract. This form is used to Previously, OHA’s operations were regulations, and under the obtain generation plant material and conducted at three locations in two Administrative Procedure Act, such equipment purchases not requiring separate buildings. This consolidation regulations are excepted from the Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58289 requirement for publication of a general retroactive effect, if any; (5) adequately and copying, during normal business notice of proposed rulemaking. 5 U.S.C. defines key terms; and (6) addresses hours: 553(b)(A). Accordingly, this action is other important issues affecting clarity * * * * * not subject to a requirement that a and general draftsmanship under any regulatory flexibility analysis be guidelines issued by the Attorney § 1003.14 [Amended] prepared. General. Section 3(c) of Executive Order 5. Section 1003.14 is amended by 12988 requires Executive agencies to removing the phrase ‘‘in the Federal D. National Environmental Policy Act review regulations in light of applicable Register’’ and adding in its place the The rules issued today are strictly standards in section 3(a) and section words ‘‘on its Internet World Wide Web technical and procedural in nature. 3(b) to determine whether they are met site,’’ and by adding after the last Preparation of an environmental or it is unreasonable to meet one or sentence the words ‘‘The OHA’s web assessment or environmental impact more of them. DOE has completed the site is located at http:// statement under the National required review and determined that, to www.oha.doe.gov.’’ Environmental Policy Act of 1969, as the extent permitted by law, the [FR Doc. 98–29141 Filed 10–29–98; 8:45 am] amended (42 U.S.C. 4321 et seq.) is not proposed rule meets the relevant BILLING CODE 6450±01±P required for such rules under Appendix standards of Executive Order 12988. A to subpart D of 10 CFR part 1021. More specifically, DOE has determined List of Subjects in 10 CFR Part 1003 that this rule is covered under the Administrative practice and FARM CREDIT ADMINISTRATION Categorical Exclusion found in procedure, Appeal procedures, Hearing 12 CFR Parts 611, 615, 620 and 627 paragraph A.6 of Appendix A to subpart and appeal procedures, Practice and D of part 1021, which applies to the procedure. RIN 3052±AB58 establishment of procedural Issued in Washington, DC, on October 22, Organization; Funding and Fiscal rulemakings. Accordingly, neither an 1998. environmental assessment nor an Affairs, Loan Policies and Operations, George B. Breznay, environmental impact statement is and Funding Affairs; Disclosure to required. Director, Office of Hearings and Appeals. Shareholders; Title V Conservators For the reasons set forth in the and Receivers; Capital Provisions; E. Paperwork Reduction Act preamble, part 1003 of title 10 of the Correction There will be no additional Code of Federal Regulations is amended AGENCY: Farm Credit Administration. paperwork burden imposed by the rules to read as follows: issued today. Therefore, the goals of the ACTION: Final rule; correction. PART 1003ÐOFFICE OF HEARINGS Paperwork Reduction Act are not SUMMARY: The Farm Credit diminished by the rules. AND APPEALS PROCEDURAL REGULATIONS Administration (FCA) published a final F. Small Business Regulatory rule (63 FR 39219, July 22, 1998) that Enforcement Fairness Act 1. The authority citation for part 1003 amended the capital adequacy and continues to read as follows: related regulations to address: interest This action is not subject to the rate risk; the grounds for appointing a Congressional notification requirements Authority: 15 U.S.C. 761 et seq.; 42 U.S.C. conservator or receiver; capital and of 5 U.S.C. 801 because it involves 7101 et seq. bylaw requirements for service purely procedural rules which are Subpart AÐGeneral Provisions corporations; and various computational excepted from the definition of ‘‘rule’’ issues and other issues involving the in 5 U.S.C. 804. 2. Section 1003.4 is amended by capital regulations. This document G. Review Under Executive Order 12988 revising paragraph (c) to read as follows: corrects an error in one of the With respect to the review of existing § 1003.4 Filing of documents. amendatory instructions of the final regulations and the promulgation of * * * * * rule. new regulations, section 3(a) of (c) Hand-delivered documents to be EFFECTIVE DATE: September 14, 1998. Executive Order 12988, ‘‘Civil Justice filed with the OHA shall be submitted FOR FURTHER INFORMATION CONTACT: Reform,’’ 61 FR 4729 (February 7, 1996), to 950 L’Enfant Plaza, SW., Washington, Cindy R. Nicholson, Paralegal imposes on Executive agencies the DC, during normal business hours. Specialist, Office of Policy and general duty to adhere to the following * * * * * Analysis, Farm Credit Administration, requirements: (1) Eliminate drafting McLean, VA 22102–5090, (703) 883– errors and ambiguity; (2) write § 1003.11 [Amended] 4498, TDD (703) 883–4444. regulations to minimize litigation; and 3. Section 1003.11 is amended by SUPPLEMENTARY INFORMATION: In (3) provide a clear legal standard for adding immediately after ‘‘20585’’ the preparing the final rule for publication affected conduct rather than a general phrase ‘‘¥0107’’ and by revising the Fax in the Federal Register, an error was standard and promote simplification phone number to read ‘‘(202) 426– inadvertently made in amendatory and burden reduction. Section 3(b) of 1415.’’ instruction number 8 on page 39226, Executive Order 12988 specifically 4. Section 1003.13 is amended by column 2. requires that Executive agencies make revising the introductory paragraph to Accordingly, the amendatory every reasonable effort to ensure that the read as follows: instruction is corrected to read as regulation: (1) clearly specifies the follows: preemptive effect, if any; (2) clearly § 1003.13 Public reference room. 8. Section 615.5210 is amended by specifies any effect on existing Federal A public reference room shall be adding new paragraph (e)(11); removing law or regulation; (3) provides a clear maintained at the OHA, 950 L’Enfant paragraphs (f)(2)(iii) and (f)(2)(v); legal standard for affected conduct Plaza, S.W., Washington, DC. In this redesignating paragraph (f)(2)(iv) as new while promoting simplification and room, the following information shall be paragraph (f)(2)(iii); adding a new burden reduction; (4) specifies the made available for public inspection paragraph (f)(2)(iv); removing the 58290 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations reference ‘‘1 year’’ and adding in its information may also be examined at will not change the meaning of the AD place, the reference ‘‘14 months’’ in the Federal Aviation Administration and will not add any additional burden paragraph (f)(3)(ii)(C)(2); and revising (FAA), Central Region, Office of the upon the public than was already paragraphs (a), (b), (e) introductory text, Regional Counsel, Attention: Rules proposed. (e)(1), (e)(6), (e)(10), (f)(2)(i), (f)(2)(ii), Docket No. 95–CE–51–AD, Room 1558, Cost Impact heading of newly designated (f)(2)(iii), 601 E. 12th Street, Kansas City, Missouri (f)(3)(ii)(A), and (f)(3)(iii) to read as 64106; or at the Office of the Federal The FAA estimates that 10,100 follows: Register, 800 North Capitol Street, NW, airplanes in the U.S. registry will be Dated: October 27, 1998. suite 700, Washington, DC. affected by this AD, that it will take Floyd Fithian, FOR FURTHER INFORMATION CONTACT: approximately 2 workhours per airplane to accomplish this action, and that the Secretary, Farm Credit Administration Board. William O. Herderich, Aerospace average labor rate is approximately $60 [FR Doc. 98–29101 Filed 10–29–98; 8:45 am] Engineer, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix an hour. Parts cost approximately $140 BILLING CODE 6705±01±P Blvd., Suite 450, Atlanta, Georgia 30349; per airplane. Based on these figures, the telephone: (770) 703–6069; facsimile: total cost impact of this AD on U.S. (770) 703–6097. operators is estimated to be $2,626,000. DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: This figure is based on the assumption that all of the affected airplanes have Federal Aviation Administration Events Leading to the Issuance of This old landing light support and seal AD 14 CFR Part 39 assemblies and that none of the owners/ A proposal to amend part 39 of the operators of the affected airplanes have [Docket No. 95±CE±51±AD; Amendment 39± Federal Aviation Regulations (14 CFR replaced the landing light support and 10862; AD 96±10±01 R1] part 39) to include an AD that would seal assemblies with parts of improved design. RIN 2120±AA64 apply to Piper Models PA–28–140, PA– 28–150, PA–28–160, and PA–28–180 Piper has informed the FAA that parts Airworthiness Directives; The New airplanes was published in the Federal have been distributed to equip Piper Aircraft, Inc. Models PA±28±140, Register as a notice of proposed approximately 7,021 airplanes. PA±28±150, PA±28±160, and PA±28± rulemaking (NPRM) on June 9, 1998 (63 Assuming that these distributed parts 180 Airplanes FR 31374). The NPRM proposed to are incorporated on the affected revise AD 96–10–01 to retain the airplanes, the cost of this AD will be AGENCY: Federal Aviation requirement of accomplishing a reduced by $1,825,460, from $2,626,000 Administration, DOT. complete landing light support to $800,540. ACTION: Final rule. replacement, and proposed to change Regulatory Impact the applicability of the AD, as follows: SUMMARY: This amendment revises Models PA–28–140 airplanes, serial The regulations adopted herein will Airworthiness Directive numbers (S/N) 28–20000 through 28– not have substantial direct effects on the (AD) 96–10–01, which currently 7725290, Models PA–28–150, 160, and States, on the relationship between the requires a complete landing light 180 airplanes, S/N 28–1 through 28– national government and the States, or support replacement on certain The 7505259, and S/N 28–E13 to Models on the distribution of power and New Piper Aircraft, Inc. (Piper) Models PA–28–140 airplanes, S/N 28–20000 responsibilities among the various PA–28–140, PA–28–150, PA–28–160, through 28–7725290, PA–28–150, PA– levels of government. Therefore, in and PA–28–180 airplanes. Some of the 28–160, and PA–28–180, serial numbers accordance with Executive Order 12612, serial numbers for these airplanes were 28–1 through 28–1760. it is determined that this final rule does incorrectly referenced in the Accomplishment of the proposed action not have sufficient federalism Applicability section of AD 96–10–01. as specified in the NPRM would be implications to warrant the preparation This AD maintains the requirements of required in accordance with Piper of a Federalism Assessment. AD 96–10–01, and corrects the serial Service Bulletin No. 975, dated For the reasons discussed above, I numbers referenced in the Applicability November 2, 1994. certify that this action (1) is not a section. The actions specified by this The NPRM was the result of ‘‘significant regulatory action’’ under AD are intended to prevent the landing inadvertent mistakes in the serial Executive Order 12866; (2) is not a light retainer support seal from being number effectivity of certain airplane ‘‘significant rule’’ under DOT ingested by the updraft carburetor, models referenced in AD 96–10–01. Regulatory Policies and Procedures (44 which could result in rough engine Interested persons have been afforded FR 11034, February 26, 1979); and (3) operation or possible engine failure and an opportunity to participate in the will not have a significant economic loss of control of the airplane. making of this amendment. No impact, positive or negative, on a DATES: Effective December 14, 1998. comments were received on the substantial number of small entities The incorporation by reference of proposed rule or the FAA’s under the criteria of the Regulatory Piper Service Bulletin No. 975, dated determination of the cost to the public. Flexibility Act. A copy of the final November 2, 1994, as listed in the evaluation prepared for this action is regulations, was previously approved by The FAA’s Determination contained in the Rules Docket. A copy the Director of the Federal Register as of After careful review of all available of it may be obtained by contacting the June 10, 1996 (61 FR 19813, May 3, information related to the subject Rules Docket at the location provided 1996). presented above, the FAA has under the caption ADDRESSES. ADDRESSES: Service information that determined that air safety and the List of Subjects in 14 CFR Part 39 applies to this AD may be obtained from public interest require the adoption of The New Piper Aircraft, Inc., Attn: the rule as proposed except for minor Air transportation, Aircraft, Aviation Customer Service, 2926 Piper Drive, editorial corrections. The FAA has safety, Incorporation by reference, Vero Beach, Florida 32960. This determined that these minor corrections Safety. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58291

Adoption of the Amendment PART 39ÐAIRWORTHINESS 96–10–01, Amendment 39–9606 (61 FR DIRECTIVES 19813, May 3, 1996), and adding a new Accordingly, pursuant to the AD to read as follows: authority delegated to me by the 1. The authority citation for part 39 continues to read as follows: 96–10–01 R1 The New Piper Aircraft, Inc.: Administrator, the Federal Aviation Amendment 39–10862; Docket No. 95– Administration amends part 39 of the Authority: 49 U.S.C. 106(g), 40113, 44701. CE–51–AD; Revises AD 96–10–01, Federal Aviation Regulations (14 CFR Amendment 39–9606. § 39.13 [Amended] part 39) as follows: Applicability: The following airplane 2. Section 39.13 is amended by models and serial numbers, certificated in removing Airworthiness Directive (AD) any category:

Models Serial Nos.

PA±28±140 ...... 28±20000 through 28±7725290. PA±28±150, PA±28±160, and PA±28±180 ...... 28±1 through 28±1760.

Note 1: This AD applies to each airplane (d) The replacements required by this AD area while accommodating the concerns identified in the preceding applicability shall be done in accordance with Piper of airspace users. provision, regardless of whether it has been Service Bulletin No. 975, dated November 2, EFFECTIVE DATE: 0901 UTC, November 5, modified, altered, or repaired in the area 1994. This incorporation by reference was subject to the requirements of this AD. For previously approved by the Director of the 1998. airplanes that have been modified, altered, or Federal Register as of June 10, 1996 (61 FR FOR FURTHER INFORMATION CONTACT: repaired so that the performance of the 19813, May 3, 1996). Copies may be obtained William C. Nelson, Airspace and Rules requirements of this AD is affected, the from The New Piper Aircraft, Inc., Attn: Division, ATA–400, Office of Air Traffic owner/operator must request approval for an Customer Service, 2926 Piper Dr., Vero Airspace Management, Federal Aviation alternative method of compliance in Beach, Florida 32960. Copies may be Administration, 800 Independence accordance with paragraph (c) of this AD. inspected at the FAA, Central Region, Office of the Regional Counsel, Room 1558, 601 E. Avenue, SW., Washington, DC 20591, The request should include an assessment of Telephone: (202) 267–8783. the effect of the modification, alteration, or 12th Street, Kansas City, Missouri, or at the repair on the unsafe condition addressed by Office of the Federal Register, 800 North SUPPLEMENTARY INFORMATION: Capitol Street, NW, suite 700, Washington, this AD; and, if the unsafe condition has not Related Rulemaking Actions been eliminated, the request should include DC. specific proposed actions to address it. (e) This amendment becomes effective on On May 21, 1970, the FAA published Compliance: Required within the next 100 December 14, 1998. the Designation of Federal Airways, hours time-in-service (TIS) after the effective Issued in Kansas City, Missouri, on Controlled Airspace, and Reporting date of this AD, unless already accomplished. October 22, 1998. Points Final Rule (35 FR 7782). This Note 2: Early compliance is encouraged. Michael Gallagher, rule provided for the establishment of To prevent the landing light seal from Manager, Small Airplane Directorate, Aircraft Terminal Control Airspace areas (now lodging in the carburetor, which could result Certification Service. known as Class B airspace areas). in rough engine operation or possible engine [FR Doc. 98–28970 Filed 10–29–98; 8:45 am] On June 21, 1988, the FAA published failure and loss of control of the airplane, BILLING CODE 4910±13±P the Transponder With Automatic accomplish the following: Altitude Reporting Capability (a) Replace the landing light support and Requirement Final Rule (53 FR 23356). seal assembly in accordance with the DEPARTMENT OF TRANSPORTATION This rule requires all aircraft to have an ACCOMPLISHMENT INSTRUCTIONS altitude encoding transponder when section of Piper Service Bulletin No. 975, Federal Aviation Administration dated November 2, 1994. operating within 30 NM of any (b) Special flight permits may be issued in 14 CFR Part 71 designated TCA (now known as Class B accordance with sections 21.197 and 21.199 airspace area) primary airport from the of the Federal Aviation Regulations (14 CFR [Airspace Docket No. 94±AWA±1] surface up to 10,000 feet MSL. This rule 21.197 and 21.199) to operate the airplane to excluded those aircraft that were not a location where the requirements of this AD RIN 2120±AA66 originally certificated with an engine- can be accomplished. Modification of the Phoenix Class B driven electrical system (or those that (c) An alternative method of compliance or have not subsequently been certified adjustment of the compliance time that Airspace Area; Arizona provides an equivalent level of safety may be with such a system), balloons, or approved by the Manager, Atlanta Aircraft AGENCY: Federal Aviation gliders. Certification Office (ACO), One Crown Administration (FAA), DOT. On October 14, 1988, the FAA Center, 1895 Phoenix Blvd., Suite 450, ACTION: Final rule. published the Terminal Control Area Atlanta, Georgia 30349. Classification and Terminal Control (1) The request shall be forwarded through SUMMARY: This action modifies the Area Pilot and Navigation Equipment an appropriate FAA Maintenance Inspector, Phoenix, AZ, Class B airspace area. Requirements Final Rule (53 FR 40318). who may add comments and then send it to Specifically, this action reconfigures This rule, in part, requires the pilot-in- the Manager, Atlanta ACO. several area boundaries; creates two command of a civil aircraft operating (2) Alternative methods of compliance approved in accordance with AD 96–10–01, new areas; and raises and/or lowers the within a Class B airspace area to hold are considered approved as alternative floors of several existing areas. The FAA at least a private pilot certificate, except methods of compliance for this AD. is taking this action to enhance safety, for a student pilot who has received Note 3: Information concerning the reduce the potential for midair collision, certain documented training. existence of approved alternative methods of and to improve the management of air On December 17, 1991, the FAA compliance with this AD, if any, may be traffic operations into, out of, and published the Airspace Reclassification obtained from the Atlanta ACO. through the Phoenix Class B airspace Final Rule (56 FR 65638). This rule 58292 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations discontinued the use of the term On April 2, 1997, the FAA reopened airspace over the City of Apache ‘‘Terminal Control Area’’ and replaced it the comment period in response to Junction with a floor of 8,000 feet MSL. with the designation ‘‘Class B airspace requests from several user organizations As commercial IFR traffic is currently, area.’’ This change in terminology is for additional time to fully analyze the and will continue to be, vectored over reflected in this final rule. proposal and to formulate and submit Apache Junction at or above 8,000 feet comments (62 FR 15635). MSL, the proposed modification has no Background On August 22, 1997, the FAA potential to affect the environment in The Terminal Control Airspace area published a supplemental notice of the vicinity of Apache Junction. (TCA) program was developed to reduce proposed rulemaking to correct an error Once the airspace is designated as the potential for midair collision in the in the bearings published in the original Class B, GA traffic can either congested airspace surrounding airports notice (62 FR 44598). Interested persons circumnavigate the area or use standard with high density air traffic by were invited to participate by procedures to enter the Class B airspace providing an area wherein all aircraft submitting written data, views, or area. Class B airspace, formerly known are subject to certain operating rules and arguments. as a Terminal Control Area, exists to equipment requirements. The FAA received 61 comments in provide a high degree of control over air The density of traffic and the type of response to notice 94–AWA–1. All traffic associated with high density operations being conducted in the comments received were considered airports, to reduce the potential for airspace surrounding major terminals before making a determination on this midair collisions. Accordingly, aircraft increases the probability of midair final rule. An analysis of the comments equipment is subject to certain minima, collisions. In 1970, an extensive study received and the FAA’s responses are and permission must be obtained to found that the majority of midair summarized below. enter Class B airspace. While operating within Class B airspace, every aircraft is collisions occurred between a general Analysis of Comments aviation (GA) aircraft and an air carrier required to have an operational or military aircraft, or another GA Requests for Additional Hearings transponder and the pilot is required to maintain two-way communication with, aircraft. The basic causal factor common Several commenters requested that to these conflicts was the mix of aircraft and follow the instructions issued by, the FAA hold additional hearings to air traffic controllers. Controllers are operating under visual flight rules (VFR) advise the public on the specifics of this and aircraft operating under instrument responsible for the separation of every proposed action. These commenters aircraft in the Class B airspace area, flight rules (IFR). Class B airspace areas stated that, in their opinion, the time lag whether the aircraft is operating IFR or provide a method to accommodate the between the July 17, 1993, public VFR. increasing number of IFR and VFR hearing and February 4, 1997, Establishing the Phoenix Class B operations. The regulatory requirements publication of the NPRM was reason airspace area floor at 8,000 feet MSL in of these airspace areas afford the enough for the FAA to hold additional this area will assure adequate separation greatest protection for the greatest airspace meetings. and maneuvering airspace, which number of people by giving air traffic The FAA disagrees with these enhances aviation safety between IFR control increased capability to provide commenters. The FAA held a pre-NPRM and VFR operations. The FAA believes aircraft separation service, thereby meeting to inform airspace users of the IFR aircraft operations above 8,000 feet minimizing the mix of controlled and planned modification of the Phoenix MSL will not impact any wilderness uncontrolled aircraft. Class B airspace area and to provide areas or the well-being of the residents The standard configuration of these local airspace users an opportunity to of Apache Junction. Adequate airspace areas contains three concentric present input on the proposed information has been provided to circles centered on the primary airport modifications. Since no changes to the evaluate potential safety benefits and extending to 10, 20, and 30 nautical original planned modification had been potential environmental impact during miles (NM), respectively. The standard instituted, it was determined by the the rulemaking process. vertical limit of these airspace areas FAA that additional airspace meetings Several commenters expressed normally should not exceed 10,000 feet were not necessary. concern that the proposed modifications MSL, with the floor established at the would allow aircraft to fly at lower Environmental Concerns surface in the inner area and at levels altitudes over residential areas, causing appropriate to the containment of One commenter, representing the City an increase in noise levels, and operations in the outer areas. Variations of Apache Junction, opposed the decreasing property values. of these criteria may be utilized proposal to modify the Phoenix Class B Additionally, some commenters contingent on the terrain, adjacent airspace area eastward over the city. expressed concern that the expansion of regulatory airspace, and factors unique This commenter stated that the the Class B airspace area would have a to the terminal area. proposed modification would create detrimental effect upon the future noise from lower flying aircraft, Public Input environment of the area, including the jeopardize air safety, adversely effect Superstition Mountains. They On February 4, 1997, the FAA wilderness areas and the FAA has not questioned whether an Environmental published a notice in the Federal provided the city adequate information Impact Statement was required as part Register, Airspace Docket 94–AWA–1, pertaining to the proposed changes. of this action. proposing to modify the Phoenix Class The FAA disagrees with the statement The modifications herein will not B airspace area (62 FR 5188). The notice of this commenter. Currently, the City of change or lower the altitude at which proposed to reconfigure several area Apache Junction, as charted on aircraft operate, nor will they change boundaries; create two new areas; and aeronautical charts, is located in an area existing aircraft departure and arrival raise and/or lower the floors of several classified as uncontrolled, or ‘‘Class E routes, flight tracks, and operations. existing areas within the Phoenix Class airspace.’’ Class E airspace may be used Under the final rule, except in two B airspace area. The comment period for by GA VFR aircraft as well as subareas H and I, Class B airspace area this proposal closed on September 22, commercial airlines operating IFR. The would simply be expanded horizontally 1997. modification establishes Class B to provide additional safety through Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58293 adherence to instrument flight rules. navigate a minimal distance to reach The FAA considered modifying the The airspace will be expanded vertically and enter Class E airspace. Therefore, ILS approach, along with reconfiguring by lowering the floor of IFR operations the FAA believes this action would have Area C. However, the FAA determined in subareas H and I to enhance safety by no impact upon users of the airspace that a modification of surface Area A is assuring a minimum 1,000 feet of operating below the floor of the Phoenix the preferred option. Presently, aircraft separation between approximately 8,000 Class B airspace area in the vicinity of arriving from the east conducting the feet MSL and above, and GA operations. southeast of FFZ. In consideration of the Runway 26R ILS approach, exit and In the modification to subareas H and I, overall safety benefits, provided by ATC reenter the Class B airspace area, GA would not be allowed to operate system, (e.g. separation from other increasing the potential for an incident above 7,000 feet MSL. The operational aircraft, traffic advisories, etc,) the FAA or accident between IFR and VFR and noise impact of eliminating believes this action to be in the best aircraft operating outside of, but in the operations by GA aircraft above 7,000 interest of the aviation community. vicinity of, the existing Class B airspace feet MSL in subareas H and I is expected area. Airspace Reconfiguration to be minimal. Prior to the establishment of the As published in the Aeronautical Many commenters were of the Runway 26R ILS procedure, Area A was Information Manual (AIM), the FAA opinion that the eastward expansion of considered to be sufficient. However, it recommends that aircraft maintain a the airspace is unnecessary because the was discovered that, due to the angle of minimum altitude of 2,000 feet above existing design has worked well for the glideslope, aircraft following the the surface to minimize adverse impact many years. Two commenters compared approach procedure while descending, upon the environment. Existing the Phoenix Class B airspace area with would exit through the 3,000-foot MSL operations will continue in accordance other Class B airspace areas and floor of Area C and reenter through the with this recommendation to the extent concluded that the Phoenix Class B eastern boundary of the Phoenix Class B feasible. Further, aircraft operations in airspace area should not be expanded. airspace area, Area A. The relocation of the Phoenix Class B airspace area in the The FAA does not agree with these the eastern boundary of Area A, by 1- vicinity of the Superstition Mountains comments. The size and design of each NM to the east, eliminates this safety will be operating at or above 8,000 feet Class B airspace area is unique and concern and alleviates the necessity to MSL. dependent upon the amount of airspace redesign the ILS approach procedure. As explained in detail in the necessary to segregate certain aircraft Environmental Review section and for operations into and out of busy terminal Modification of Areas H and I the reasons stated above, the FAA has areas. Aircraft operations have increased Several commenters stated that the determined that the proposed final rule dramatically in the Phoenix Class B proposed modification of Area H north qualifies for categorical exclusion from airspace area since it was established in of Phoenix International Airport would environmental review under FAA Order 1990. Under the present configuration, have a negative impact on general 1050.1D, Policies and Procedures for aircraft operations east of Phoenix, and aviation and glider operations from the Considering Environmental Impacts. in the vicinity of IWA may, because of Pleasant Valley Sailport. traffic density, overflow or, when The FAA does not agree with these Satellite Airport Operations necessary, may be vectored temporarily comments. The FAA believes that the Some commenters expressed concerns out of the Phoenix Class B airspace area. modification of Area H has no effect that the proposed modifications would This creates the potential for conflict upon glider operations out of the negatively impact airspace users in the between controlled IFR and sailport. Those glider operators that vicinity of Williams Gateway (IWA) noncontrolled VFR aircraft operations. require an altitude greater than 7,000 airport and Falcon Field (FFZ) airport. Reclassifying certain Class E airspace to feet MSL, have the option of remaining Two commenters, representing Class B airspace in the vicinity of IWA outside of, or obtaining ATC approval to helicopter operations state that the provides additional airspace to ensure operate in, the Class B airspace area. In reconfiguration of airspace east and the safety of those aircraft. addition, lowering the floor in Areas H southeast of FFZ will have an economic Reconfiguring the current airspace and I to 7000 feet MSL is necessary due impact upon their business. eliminates potential conflict between to the increase in IFR aircraft operations The FAA does not agree with these VFR and IFR aircraft operations and to and from Phoenix International commenters. Currently, aircraft, allows users reasonable access to Airport. The number of aircraft including helicopters, operate in the navigable airspace. operations is expected to continue vicinity due east of FFZ, operate below Many commenters opposed the increasing significantly. Lowering the the 4,000 (Area D) and 8,000 (Area H) modification of the Phoenix Class B floor by 1,000 feet MSL increases the foot MSL floors of the Phoenix Class B airspace area because they believe efficiency of traffic management because airspace area, or navigate southeast and changes to flight tracks or airways were it allows additional transitional into Class E airspace. to be incorporated in the proposed altitudes to be used for separating As modified, those pilots who elect to action. arrival and departure traffic and allows operate in the vicinity southeast of FFZ This rulemaking effort is specifically other users access to airspace to and above IWA may navigate below the for the modification of the Phoenix maneuvering or navigate below the floor floor of the Areas D at 4,000 feet MSL. Class B airspace area. There are no of the Phoenix Class B airspace area. However, the eastern boundary of area airway or flight pattern changes D Area D is reconfigured, and therefore associated with this action. Special Use Airspace (SUA) provides additional maneuvering One commenter expressed opposition airspace. Though the current Class E The Primary Airport Surface Area to the proposed modification, airspace is being reclassified as Class B (Area A) recommending that the FAA retain the airspace, the establishment of Areas J One comment, while supporting the military airspace over the Rocky and K with floors of 5,000, and 8,000 modification, questioned whether the Mountains and move the air highway feet MSL, respectively, allows adequate instrument landing system (ILS) expansion north. airspace for users to operate below the approach procedure from the east The FAA interprets the commenters Phoenix Class B airspace area or should be revised. objections and statements regarding 58294 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

‘‘highway’’ expansion, to mean airspace The modification of the Phoenix Class modification also provides sufficient reconfiguration. To improve the B airspace area will become effective on airspace for GA operations near or efficiency of aircraft operations, the November 5, 1998. In order to avoid below the Class B airspace area east of FAA determined that an expansion of pilot confusion and to make pilots Phoenix. The existing floors of Areas H the Class B airspace area to the north immediately aware of the revised legal to the north and Area I to the south are was not necessary. The modifications description of the Phoenix Class B lowered by 1,000 feet. Establishing these contained in this rule include only that airspace area, the FAA finds that good floors at 7,000 feet MSL provides airspace necessary to contain the cause exists, pursuant to 5 U.S.C. (d), for additional protected airspace because of operations of participating aircraft in the making this amendment effective in less the increase in aircraft arriving and Phoenix area and no modification to the than 30 days. The November 5, 1998, departing the Phoenix Class B airspace SUA was proposed or planned. effective date corresponds with a area. Modification of Areas H and I scheduled publication date for the improves airspace management by Corrections appropriate aeronautical charts. The enabling a more efficient flow of traffic Several commenters reported that the FAA has disseminated information which enhances safety for IFR and VFR NPRM contained several technical regarding the revised legal description aircraft operations. The floor, errors published in the NPRM. of the Phoenix Class B airspace area via established at 7,000 feet MSL, allows The field elevation of Phoenix public meetings and publication of the airspace for other users of the navigable International Airport noted in the NPRM to ensure that pilots and airspace airspace to operate below the floor of NPRM was ‘‘132’’ feet. The field users are advised of the modifications. the Class B airspace area, or those pilots elevation is corrected in this rule to read The FAA’s Western Pacific Regional who elect to operate in these areas, may ‘‘1,132’’ feet. Office distributed Letters to Airmen that use standard procedures to enter the The eastern boundary of Area A advertised the revised description of the Phoenix Class B airspace area. would be moved ‘‘approximately 2 airspace area. The Phoenix VFR Areas E, F, G, and H are not changed NM.’’ The approximated distance, as Terminal Area Chart and Phoenix except as previously mentioned concerning the NAVAID change from verified by NOAA is less than 1 NM. Sectional Aeronautical Chart will be the Phoenix ILS/DME to the Phoenix The distance is corrected in this rule to published on November 5, 1998, and VORTAC. This change creates a minor read ‘‘approximately 1 NM’’. will reflect this rulemaking action. The coordinates for this airspace adjustment of the Phoenix Class B Additionally, the NPRM inadvertently docket are based on North American airspace area westward along the omitted addressing the change of the Datum 83. Class B airspace areas are associated arc boundaries of less than 1 navigational aid (NAVAID) from the published in Paragraph 3000 of FAA NM. Phoenix instrument landing system/ Order 7400.9F dated September 10, Area J, with the floor established at distance measuring equipment (ILS/ 1998, and effective September 16, 1998, 5,000 feet MSL, is established between DME) to the Phoenix very high which is incorporated by reference in 14 the PXR VORTAC 15–20 DME arcs and frequency omnidirectional range tactical CFR, section 71.1. The Class B airspace abuts Area E to the north and Area F to air navigation (VORTAC). Use of the area listed in this document will be the south. Establishment of area J Phoenix VORTAC will shift the arc published subsequently in the Order. provides additional protected airspace boundaries and, therefore, the regulated The existing Area A is reconfigured to support IFR arrivals and departures airspace along the arcs the Phoenix by expanding its eastern boundary out of and into the Phoenix Class B airspace area westward, but less approximately 1 NM east to ensure that International airport from VFR aircraft than 1 NM. The FAA determined that aircraft operations into the primary operations to the east of the airport. this shift in the arc boundaries causes airport are contained within the Area K to the east is reconfigured and little, if any, impact on users of the Phoenix Class B airspace area. The aligned with the adjacent Area I to the navigable airspace in these areas. In existing Area B is modified by south. This configuration allows for addition, use of the Phoenix VORTAC establishing a boundary line running more efficient transition of aircraft into assists general aviation pilots in north to south on 99th Avenue to and out of the Phoenix Class B airspace identifying certain boundaries of the provide GA operators transiting west of area, and provides protected airspace for Phoenix Class B airspace area. Phoenix greater flexibility, thereby operations into and out of the IWA The Rule reducing airspace incursions in this airport. Expanding the southeastern area area. In this reconfiguration, Area B to encompass this airspace east of IWA This amendment to 14 CFR part 71 remains at 3,000 feet MSL; however, the provides Class B airspace area service to modifies the Phoenix Class B airspace western area will be raised to merge high-performance aircraft transiting to area as depicted on the attached chart. with the existing 4,000 feet MSL of Area and from the en route structure. Specifically, this action reconfigures D. Area A by expanding the existing The airspace east of Phoenix has been Environmental Review eastern boundary to the east; reconfigured to contain high After careful consideration, the FAA reconfigures the existing Area B west of performance aircraft within the Phoenix has determined that expansion of the Phoenix International Airport; Class B airspace area. This modification Phoenix Class B airspace area, pursuant reconfigures Area D east of Phoenix expands the Class B airspace area to the to 14 CFR part 71, qualifies for International airport; establishes Areas J east-southeast approximately 15 NM categorical exclusion from and K; and raises or lowers the floors of over the Williams Gateway Airport, environmental review under FAA Order several existing or modified areas. The formerly known as Williams Air Force 1050.1D, Policies and Procedures for FAA is taking this action to enhance Base. This expansion establishes Areas Considering Environmental Impacts, safety, reduce the potential for midair J and K, with floors of 5,000 and 8,000 Appendix 3, Air Traffic Environmental collision, and improve the management feet MSL, respectively. This Responsibilities, paragraph 4(c). This of air traffic operations into, out of, and modification is consistent with the extension of the Class B airspace area through the Phoenix Class B airspace FAA’s policy of using only the horizontally and, in subareas H and I, area while accommodating the concerns minimum amount of airspace necessary vertically, to provide additional safety of airspace users. to contain Class B operations. This through adherence to instrument flight Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58295 rules, will not change aircraft departure, The FAA has determined that any airspace area boundaries and reducing arrival routes, flight tracks, or additional workload created by the final the possibility of pilot confusion. operations in the area. In subareas H rule will be absorbed with existing The modification of the Phoenix, AZ and I, although the floor for IFR personnel and equipment already in Class B airspace area will enhance operations and the ceiling for VFR place at Phoenix Sky Harbor aviation safety and improve operational traffic would be lowered from 8,000 to International Airport. The revision of efficiency in those sub-areas where 7,000 feet MSL, IFR arrival and aeronautical charts to reflect changes in aircraft are approaching or departing departure routes and flight patterns will the airspace area are considered a part from Phoenix Sky Harbor International remain the same. The lowered floor will of the normal periodic updating of the Airport. In view of the minimal, if any, assure a minimum of 1,000 feet of charts. The FAA currently revises cost of compliance and the benefits of vertical separation between continued aeronautical charts every six months to enhanced aviation safety and improved IFR operations at approximately 8,000 reflect changes in the airspace operational efficiency, the FAA has feet MSL, and GA traffic. Based upon environment. The FAA does not expect determined that this final rule will be this, and in consideration of other to incur any additional charting cost as cost-beneficial. factors, there are no extraordinary a result of the modification of the Class Regulatory Flexibility Determination circumstances that warrant preparation B airspace area. of an environmental assessment. The FAA has determined through The Regulatory Flexibility Act of 1980 statistical analysis that most aircraft establishes ‘‘as a principle of regulatory Regulatory Evaluation Summary operating in the modified and expanded issuance that agencies shall endeavor, Changes to Federal regulations must Class B airspace area already have two- consistent with the objective of the rule undergo several economic analyses. way radio communications capability and of applicable statutes, to fit First, Executive Order 12866 directs that and Mode C transponders. Therefore, regulatory and informational each Federal agency shall propose or the FAA has determined this final rule requirements to the scale of the adopt a regulation only upon a reasoned will not impose any additional business, organizations, and determination that the benefits of the installation cost for purchasing two-way governmental jurisdictions subject to intended regulation justify its costs. radios and/or Mode C transponders on regulation.’’ To achieve that principal, Second, the Regulatory Flexibility Act a substantial number of operators. the Act requires agencies to solicit and of 1980 requires agencies to analyze the The final rule modifies the current consider flexible regulatory proposals economic effect of regulatory changes Phoenix Class B airspace area by and to explain the rational for their on small entities. Third, the Office of establishing new sub-areas, by actions. The Act covers a wide-range of Management and Budget directs expanding or contracting the lateral small entities, including small agencies to assess the effect of boundaries, and by raising or lowering businesses, not-for-profit organizations regulatory changes on international the floors of several of the sub-areas. and small governmental jurisdictions. trade. In conducting these analyses, the The final rule will not alter the ceiling Agencies must perform a review to FAA has determined that this Final of the Class B airspace area, therefore determine whether a proposed or final Rule: (1) will generate benefits that the airspace ceiling will remain constant rule will have a significant economic justify its minimal costs and is not ‘‘a at 10,000 feet MSL. The FAA has impact on a substantial number of small significant regulatory action’’ as defined determined that the modifications to the entities. If the determination is that it in the Executive Order; (2) is not airspace area will require non- will, the agency must prepare a significant as defined in the Department participating operators to make only regulatory flexibility analysis (RFA) as of Transportation’s Regulatory Policies small deviations from their current VFR described in the Act. and Procedures; (3) will not have a flight paths north, south and east of However, if an agency determines that significant impact on a substantial Phoenix Sky Harbor International a proposed or final rule is not expected number of small entities; (4) will not Airport. In addition, the FAA has to have a significant economic impact constitute a barrier to international determined the redesigned floors and on a substantial number of small trade; and (5) will not contain any lateral boundaries will not reduce entities, section 605(b) of the 1980 Act Federal intergovernmental or private aviation safety. provides that the head of the agency sector mandate. These analyses, may so certify and an RFA is not Benefits available in the docket, are summarized required. The certification must include below. The approximate total number of a statement providing the factual basis operations at Phoenix Sky Harbor for this determination, and the Costs International Airport was 590,000 in reasoning should be clear. The FAA has determined that 1996, up from 570,000 in 1995 and is Only those unscheduled aircraft modifying the Phoenix Class B airspace projected to increase to 660,000 by the operators without the capability to area will enhance aviation safety and year 2000. Also, passenger operate under IFR conditions will be operational efficiency. This FAA enplanements were approximately 14.6 potentially impacted by this final rule. determination is based on a change in million in 1996, up from 13.5 million in The FAA has determined that all operations complexity in some of the 1995 and are projected to increase to unscheduled air taxi operators are existing subareas. The FAA contends 18.1 million by the year 2000. already equipped to operate under IFR the modification of the airspace area The FAA has determined that this conditions. These operators regularly fly will impose minimal, if any, cost to final rule will enhance operational in airports where radar approach control either the agency or aircraft operators. In safety by lowering the potential risk of services have been established such as addition, the FAA has determined that midair collisions, given the projected the Phoenix Class B airspace area. The the modified airspace area will impose increase of total operations and FAA anticipates that flight training minimal, if any, cost to operators that passenger enplanements at Phoenix Sky schools in the Phoenix area will circumnavigate the area. Harbor International Airport. The final continue to operate below the floor of The final rule will not impose any rule will improve aviation safety as well the modified Class B airspace area additional administrative costs on the as air traffic flow in the Phoenix Class without any difficulty. Thus, the FAA FAA for either personnel or equipment. B airspace area by simplifying the does not anticipate any adverse impacts 58296 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations to occur as a result of the modified Class requirements of Title II of the Unfunded 33°30′34′′N., long. 112°10′08′′W.), thence B airspace area. Mandates Reform Act of 1995 do not south on 51st Avenue to the intersection of The FAA conducted the required apply. 51st Avenue and Guadalupe Road (lat. 33°21′46′′N., long. 112°10′09′′W.), thence review of this proposal and determined ° ′ ′′ that it would not have a significant List of Subjects in 14 CFR Part 71 direct to lat. 33 21 48 N., long. 112°06′30′′W., thence south direct to lat. economic impact on a substantial Airspace, Incorporation by reference, 33°18′18′′N., long. 112°06′30′′W., thence west number of small entities. Accordingly, Navigation (air). on Chandler Boulevard to the intersection of pursuant to the Regulatory Flexibility Adoption of the Amendment Chandler Boulevard and the Gila River (lat. Act, 5 U.S.C. 605(b), the Federal 33°18′18′′N., long. 112°12′03′′W.), thence Aviation Administration certifies that In consideration of the foregoing, the northwest along the Gila River to the this rule will not have a significant Federal Aviation Administration intersection of the Gila River and 99th economic impact on a substantial amends 14 CFR part 71 as follows: Avenue, (lat. 33°19′55′′N., long. ° ′ ′′ number of small entities. 112 16 21 W.), thence north along the PART 71ÐDESIGNATION OF CLASS A, extension of 99th Avenue to the point of International Trade Impact Assessment CLASS B, CLASS C, CLASS D, AND beginning. This final rule will not have CLASS E AIRSPACE AREAS; Area C. That airspace extending upward AIRWAYS; ROUTES; AND REPORTING from 3,000 feet MSL to and including 10,000 international trade ramifications feet MSL beginning at the intersection of because it is a domestic airspace matter. POINTS Guadalupe Road and Interstate 10 (lat. The modification of Class B airspace 1. The authority citation for part 71 33°21′50′′N., long. 111°58′08′′W.), thence area will only affect U.S. terminal continues to read as follows: south on Interstate 10 to the intersection of airspace operating procedures at and in Interstate 10 and Chandler Boulevard (lat. the vicinity of Phoenix, AZ. This final Authority: 49 U.S.C. 106(g), 40103, 40113, 33°18′19′′N., long. 111°58′21′′W.), thence east rule will not impose costs on aircraft 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– on Chandler Boulevard to the intersection of 1963 Comp., p. 389. Gilbert Road and Chandler Boulevard (lat. operators or aircraft manufacturers in ° ′ ′′ ° ′ ′′ the United States or foreign countries. 33 18 19 N., long. 111 47 22 W.), thence § 71.1 [Amended] north on Gilbert Road to the intersection of Unfunded Mandates Assessment 2. The incorporation by reference in Indian Bend Road (lat. 33°32′20′′N., long. 14 CFR 71.1 of the Federal Aviation 111°47′23′′W.), thence west on Indian Bend Title II of the Unfunded Mandates Administration Order 7400.9F, Airspace Road to the intersection of Indian Bend Road Reform Act of 1995 (the act), enacted as Designations and Reporting Points, and Pima/Price Road (lat. 33°32′18′′N., long. Pub. L. 104–4 on March 22, 1995, ° ′ ′′ dated September 10, 1998, and effective 111 53 29 W.), thence south on Pima/Price requires each Federal agency, to the September 16, 1998, is amended as Road to the intersection of Pima/Price Road extent permitted by law, to prepare a and Camelback Road (lat. 33°30′07′′N, long. follows: written assessment of the effects of any 111(53′29′′W.), thence east on Camelback Federal mandate in a proposed or final Paragraph 3000—Subpart B—Class B Road to Dobson Road (lat. 33°30′07′′N, long. ′ ′′ agency rule that may result in the Airspace 111(52 26 W.), thence south on Dobson Road expenditure of $100 million or more * * * * * to the intersection of Dobson Road and Guadalupe Road (lat. 33°21′49′′N., long. adjusted annually for inflation in any AWP AZ B Phoenix, AZ [Revised] 111°52′35′′W.), thence west on Guadalupe one year by State, local, and tribal Road to the point of beginning. governments, in the aggregate, or by the Phoenix Sky Harbor International Airport (Primary Airport) Area D. That airspace extending upward private sector. Section 204(a) of the Act, (lat. 33°26′10′′N., long. 112°00′34′′W.) from 4,000 feet MSL to and including 10,000 2 U.S.C. 1534(a), requires the Federal Phoenix VORTAC feet MSL beginning at the intersection of agency to develop an effective process (lat. 33°25′59′′N., long. 111°58′13′′W.) Cactus Road and the 15-mile arc of the to permit timely input by elected Phoenix VORTAC (lat. 33°35′35′′N., long. Boundaries ° ° ′′ officers (or their designees) of State, 111 44 29 W.), thence clockwise along the local and tribal governments on a Area A. That airspace extending upward 15-mile arc of the Phoenix VORTAC to the from the surface to and including 10,000 feet intersection of the 15-mile arc of the Phoenix proposed ‘‘significant intergovernmental MSL beginning at the intersection of 51st VORTAC and Riggs Road (lat. 33°13′02′′N., mandate.’’ A ‘‘significant Avenue and Camelback Road (lat. long. 111°49′07′′W.), thence west along Riggs intergovernmental mandate’’ under the 33°30′34′′N., long. 112°10′08′′W.), extending Road to the intersection of the Gila River and Act is any provision in a Federal agency east along Camelback Road to the Valley Road (lat. 33°13′10′′N., long. regulation that would impose an intersection of Camelback Road and Dobson 122°09′58′′W.), thence northwest along the enforceable duty upon state, local, and Road (lat. 33°30′07′′N., long. 111°52′26′′W.), Gila River to the intersection of the Gila River tribal governments, in the aggregate, (of thence south on Dobson Road to the and Chandler Boulevard (lat. 33°18′18′′N., intersection of Dobson Road and Guadalupe long. 112°12′03′′W.), thence east to lat. $100 million adjusted annually for ° ′ ′′ ° ′ ′′ ° ′ ′′ ° ′ ′′ inflation) in any one year. Section 203 Road (lat. 33 21 49 N., long. 111 52 35 W.), 33 18 18 N., long. 112 06 30 W., thence thence west on Guadalupe Road to the north to lat. 33°21′48′′N., long. 112°06′30′′W., of the Act, 2 U.S.C. 1533, which intersection of Guadalupe Road and thence east to the intersection of Guadalupe supplements section 204(a), provides Interstate 10 (lat. 33°21′50′′N., long. Road and Interstate 10 (lat. 33°21′50′′N., long. that before establishing any regulatory 111°58′08′′W.), thence direct to lat. 33°21 111°58′08′′W.), thence south on Interstate 10 requirements that might significantly or ′48′′N., long. 112°06′30′′W., thence west on to the intersection of Interstate 10 and uniquely affect small governments, the Guadalupe Road to the intersection of Chandler Boulevard (lat. 33°18′19′′N., long. agency shall have developed a plan that Guadalupe Road and 51st Avenue (lat. 111°58′21′16′′W.), thence east along Chandler among other things, provides for notice 33°21′46′′N., long. 112°10′09′′W.), thence Boulevard to the intersection of Chandler north on 51st Avenue to the point of Boulevard and Gilbert Road (lat. 33°18′18′′N., to potentially affected small ° ′ ′′ governments, if any, and for a beginning. long.111 47 22 W.), thence north along Area B. That airspace extending upward Gilbert Road to the intersection of Indian meaningful and timely opportunity to from 3,000 feet MSL to and including 10,000 Bend Road (lat. 33°32′20′′N., long. provide input in the development of feet MSL beginning at the intersection of 99th 111°47′23′′W.), thence west along Indian regulatory proposals. Avenue and Camelback Road (lat. Bend Road to the intersection of Pima/Price This final rule does not contain any 33°30′29′′N., long. 112°16′22′′W.), thence east Road (lat. 33°32′18′′N., long. 111°53′29′′W.), Federal intergovernmental or private on Camelback Road to the intersection of thence south along Pima/Price Road to the sector mandate. Therefore, the Camelback Road and 51st Avenue (lat. intersection of Pima/Price Road and Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58297

Camelback Road (lat. 33°30′07′′N., long. 112°21′29′′W.), thence south on Litchfield thence north along the Phoenix VORTAC 111°53′29′′W.), thence west along Camelback Road to the intersection of Litchfield Road 180° radial to the intersection of the Phoenix Road to the intersection of 99th Avenue (lat. and Chandler Boulevard (lat. 33°18′18′′N., VORTAC 180° radial and the 20-mile arc of 33°30′29′′N., long. 112°16′22′′W.), thence long. 112°21′29′′W.), thence west along the Phoenix VORTAC (lat. 33°05′57′′N., long. south on 99th Avenue to the intersection of Chandler Boulevard to the intersection of the 111°58′13′′W.), thence counterclockwise 99th Avenue and the Gila River (lat. 25-mile arc of the Phoenix VORTAC (lat. along the 20-mile arc of the Phoenix 33°19′55′′N., long. 112°16′21′′W.), thence 33°18′10′′N., long. 112°26′34′′W.), thence VORTAC to the point of beginning. southeast along the Gila River to the clockwise along the 25-mile arc of the Area J. That airspace extending upward intersection of the Gila River and Chandler Phoenix VORTAC to the point of beginning. from 5,000 feet MSL to and including 10,000 Boulevard (lat. 33°18′18′′N., long. Area H. That airspace extending upward feet MSL beginning at the intersection of the ° ′ ′′ 112 12 03 W.), thence west along Chandler from 7,000 feet MSL to and including 10,000 15-mile arc of the Phoenix VORTAC and lat. Boulevard to the intersection of an extension feet MSL beginning at a point at lat. 33°35′39′′N., long. 111°44′29′′W., thence east ° ′ ′′ ° ′ ′′ of Chandler Boulevard and Litchfield Road 33 46 13 N., long. 112 15 51 W., on the 25- to the intersection of the Phoenix VORTAC ° ′ ′′ ° ′ ′′ (lat. 33 18 18 N., long. 112 21 29 W.), thence mile arc of the Phoenix VORTAC, thence 20 mile arc (lat. 33°35′35′′N., long. north along Litchfield Road to the clockwise along the 25-mile arc of the 111°37′13′′W.), thence clockwise along the intersection of Litchfield Road and Phoenix VORTAC to the intersection of the Phoenix 20-mile arc to the intersection of the ° ′ ′′ Camelback Road (lat. 33 30 29 N., long. 25-mile arc of the Phoenix VORTAC and Phoenix VORTAC 20-mile arc and Riggs ° ′ ′′ ° ′ ′′ 112 21 29 W.), thence east along Camelback Interstate 17 (lat. 33 49 30 N., long. Road (lat. 33°12′58′′N., long. 111°40′04′′W.), Road to lat. 33°30′30′′N., long. 112°19′23′′W., 112°08′37′′W.), thence south along Interstate ° ′ ′′ thence west to the intersection of Riggs Road thence direct to lat. 33 35 34 N., long. 17 to the intersection of Interstate 17 and the and the Phoenix VORTAC 15-mile arc (lat. 112°13′55′′W., thence direct to lat. 20-mile arc of the Phoenix VORTAC (lat. ° ′ ′′ ° ′ ′′ ° ′ ′′ ° ′ ′′ ° ′ ′′ ° ′ ′′ 33 13 02 N., long. 111 49 07 W.), thence 33 36 35 N., long. 112 13 38 W., thence east 33 44 31 N., long. 112 07 18 W.), thence counterclockwise along the Phoenix along Thunderbird Road to the intersection counterclockwise along the 20-mile arc of the ° ′ ′′ VORTAC 15-mile arc to the point of the of Thunderbird Road and Cactus Road to the Phoenix VORTAC to lat. 33 41 41 N., long. beginning. point of the beginning. 112°13′05′′W., thence direct to the point of Area K. That airspace extending upward Area E. That airspace extending upward beginning); and that airspace beginning at the from 8,000 feet MSL to and including 10,000 from 6,000 feet MSL to and including 10,000 intersection of the 20-mile arc of the Phoenix feet MSL beginning at the intersection of the feet MSL beginning at the intersection of the VORTAC and the Phoenix VORTAC 017° 20-mile arc of the Phoenix VORTAC and the Phoenix VORTAC 20-mile arc and lat. radial (lat. 33°45′08′′N., long. 111°51′12′′W.), Phoenix VORTAC 037° radial (lat. 33°41′41′′N., long. 112°13′05′′W., thence thence north along the Phoenix VORTAC 33°41′58′′N., long. 111°43’47’’W.), thence clockwise along the 20-mile arc of the 017° radial to the intersection of the Phoenix northeast along the Phoenix VORTAC 037° Phoenix VORTAC to intersection of the VORTAC 017° radial and the 25-mile arc of radial to the intersection of the Phoenix Phoenix VORTAC 20-mile arc and Cactus the Phoenix VORTAC (lat. 33°49′56′′N., long. VORTAC 037° radial and the 25-mile arc of Road (lat. 33°35′35′′N., long. 111°37′13′′W.), 111°49′26′′W.), thence clockwise along the the Phoenix VORTAC (lat. 33°45′58′′N., long. thence west on Cactus Road, to the 25-mile arc of the Phoenix VORTAC to the 111°40′10′′W.), thence clockwise along the intersection of Cactus Road and Thunderbird intersection of the 25-mile arc of the Phoenix 25-mile arc of the Phoenix VORTAC to the Road (lat. 33°36′35′′N., long. 112°13′38′′W.), VORTAC and the Phoenix VORTAC 037° intersection of the 25-mile arc of the Phoenix thence direct to the point of beginning. radial (lat. 33°45′58′′N., long. 111°40′10′′W.), VORTAC and the Phoenix VORTAC 127° Area F. That airspace extending upward thence southwest along the Phoenix radial (lat. 33°10′52′′N., long. 111°34′25′′W.), from 6,000 feet MSL to and including 10,000 VORTAC 037° radial to the intersection of thence northwest along the Phoenix feet MSL beginning at the intersection of the Phoenix VORTAC 037° radial and the 20- VORTAC 127° radial to the intersection of Riggs Road and the 20-mile arc of the mile arc of the Phoenix VORTAC (lat. the Phoenix VORTAC 127° radial and the 20- Phoenix VORTAC (lat. 33°12′58′′N., long. 33°41′58′′N., long. 111°43′47′′W.), thence mile arc of the Phoenix VORTAC (lat. 111°40′04′′W.), thence clockwise along the counterclockwise along the 20-mile arc of the 33°13′54′′N., long. 111°39′10′′W.), thence 20-mile arc of the Phoenix VORTAC to the Phoenix VORTAC to the point of beginning. counterclockwise along the 20-mile arc of the intersection of the 20-mile arc of the Phoenix Area I. That airspace extending upward Phoenix VORTAC to the point of beginning. VORTAC and Valley Road (lat. 33°07′58′′N., from 7,000 feet MSL to and including 10,000 long. 112°08′40′′W.), thence north along feet MSL beginning at the intersection of the * * * * * Valley Road to the intersection of Valley 20-mile arc of the Phoenix VORTAC and the Issued in Washington, DC, on October 26, Road, Riggs Road and the Gila River (lat. Phoenix VORTAC 127° radial (lat. 1998. 33°13′10′′N., long. 112°09′58′′W.), thence east 33°13′54′′N., long. 111°39′10′′W.), thence Reginald C. Matthews, ° along Riggs Road to the point of beginning. southeast along the Phoenix VORTAC 127 Acting Program Director for Air Traffic Area G. That airspace extending upward radial to the intersection of the Phoenix Airspace Management. from 6,000 feet MSL to and including 10,000 VORTAC 127° radial and the 25-mile arc of ° ′ ′′ Note: This Appendix will not appear in the feet MSL beginning at the intersection of the the Phoenix VORTAC (lat. 33 10 52 N., long. Code of Federal Regulations. 25-mile arc of the Phoenix VORTAC and 111°34′25′′W.), thence clockwise along the Camelback Road (lat. 33°30′30′′N., long. 25-mile arc of the Phoenix VORTAC to the Appendix—Phoenix, AZ, Class B 112°27′37′′W.), thence east on Camelback intersection of the 25-mile arc of the Phoenix Airspace Area Road to the intersection of Camelback Road VORTAC and the Phoenix VORTAC 180° and Litchfield Road (lat. 33°30′29′′N., long. radial (lat. 33°00′56′′N., long. 111°58′13′′W.), BILLING CODE 4910±13±P 58298 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

[FR Doc. 98–29148 Filed 10–29–98; 8:45 am] BILLING CODE 4910±13±C Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58299

DEPARTMENT OF TRANSPORTATION are based on North American Datum 83. submitted will be available, both before Class E airspace designated as a surface and after the closing date for comments, Federal Aviation Administration area for an airport are published in in the Rules Docket for examination by Paragraph 6002 of FAA Order 7400.9F interested persons. A report that 14 CFR Part 71 dated September 10, 1998, and effective summarizes each FAA-public contact [Airspace Docket No. 98±ANM±15] September 16, 1988, which is concerned with the substance of this incorporated by reference in 14 CFR action will be filed in the Rules Docket. Amendment of Class E Airspace; 71.1. The Class E airspace designation Commenters wishing the FAA to Riverton, WY listed in this document will be acknowledge receipt of their comments published subsequently in the Order. AGENCY: Federal Aviation submitted in response to this rule must Administration (FAA), DOT. The Direct Final Rule Procedure submit a self-addressed, stamped postcard on which the following ACTION: Direct final rule; request for The FAA anticipates that this statement is made: ‘‘Comments to comments. regulation will not result in adverse or Docket No. 98–ANM–15.’’ The postcard negative comment, and, therefore, issues will be date stamped and returned to the SUMMARY: This action changes the it as a direct final rule. The FAA has commenter. Riverton, WY, Class E surface airspace determined that this regulation only legal description from part-time to involves an established body of Agency Findings continuous. The FAA has technical regulations for which frequent commissioned an Automated Surface and routine amendments are necessary The regulations adopted herein will Observing System (ASOS) at the to keep them operationally current. not have substantial direct effects on the Riverton Regional Airport which makes Unless a written adverse or negative States, on the relationship between the the airport eligible for continuous Class comment or a written notice of intent to national government and the states, or E surface airspace. submit an adverse or negative comment on the distribution of power and DATES: Effective 0901 UTC, 28 January is received within the comment period, responsibilities among the various 1999. the regulation will become effective on levels of government. Therefore, in Comments for inclusion in the Rules the date specified above. After the close accordance with Executive Order 12612, Docket must be received on or before of the comment period, the FAA will it is determined that this final rule does November 30, 1998. publish a docket in the Federal Register not have sufficient federalism implications to warrant the preparation ADDRESSES: Send comments regarding indicating that no adverse or negative of a Federalism Assessment. the rule in triplicate to: Manager, comments were received and Airspace Branch, Air Traffic Division, confirming the date on which the final The FAA has determined that this ANM–520, Federal Aviation rule will become effective. If the FAA regulation is noncontroversial and Administration, Docket Number 98– does receive, within the comment unlikely to result in adverse or negative ANM–15, 1601 Lind Avenue S.W., period, an adverse or negative comment, comments. For the reasons discussed in Renton, Washington 98055–4056. or written notice of intent to submit the preamble, I certify that this The official docket may be examined such a comment, a document regulation (1) is not a ‘‘significant in the office of the Regional Counsel for withdrawing the direct final rule will be regulatory action’’ under Executive the Northwest Mountain Region at the published in the Federal Register, and Order 12866; (2) is not a ‘‘significant same address. a notice of proposed rulemaking may be rule’’ under DOT Regulatory Policies An informal docket may also be published with a new comment period. and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant examined during normal business hours Comments Invited at the address listed above. preparation of a regulatory evaluation as Although this action is in the form of these routine matters will only affect air FOR FURTHER INFORMATION CONTACT: a direct final rule, and was not preceded traffic procedures and air navigation. It Dennis Ripley, ANM–520.6, Federal by a notice of proposed rulemaking, is certified that these proposed rules Aviation Administration, Docket No. interested persons are invited to will not have significant economic 98–ANM–15, 1601 Lind Avenue, SW., comment on this rule by submitting impact on a substantial number of small Renton, Washington, 98055–4056; such written data, views, or arguments entities under the criteria of the telephone number: (425) 227–2527. as they may desire. Communications Regulatory Flexibility Act. SUPPLEMENTARY INFORMATION: should identify the Rules Docket The Riverton, WY, Class E surface Number and be submitted in triplicate List of Subjects in 14 CFR Part 71 airspace was originally effective on a to the address specified under the Airspace, Incorporation by reference, part-time basis. The commissioning of caption ADDRESSES. All communications Navigation (air). the ASOS coupled with the need for a received on or before the closing date continuous surface area exist for the for comments will be considered, and Adoption of the Amendment Riverton Regional Airport. This this rule may be amended or withdrawn Accordingly, the Federal Aviation amendment changes the legal airspace in light of the comments received. Administration amends part 71 of the description from part-time to Factual information that supports the Federal Aviation Regulations (14 CFR continuous, thereby reflecting actual commenter’s ideas and suggestions are part 71) as follows: desired operations. The intended effect extremely helpful in evaluating the of this rule is designed to provide for effectiveness of this action and PART 71ÐDESIGNATION OF CLASS A, the safe and efficient use of the determining whether additional CLASS B, CLASS C, CLASS D, AND navigable airspace at Riverton, WY. The rulemaking action would be needed. CLASS E AIRSPACE AREAS; boundaries of the airspace remain the Comments are specifically invited on AIRWAYS; ROUTES; AND REPORTING same. the overall regulatory, economic, POINTS The area will be depicted on environmental, and energy aspects of aeronautical charts for pilot reference. the rule that might suggest a need to 1. The authority citation for 14 CFR The coordinates for this airspace docket modify the rule. All comments part 71 continues to read as follows: 58300 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

Authority: 49 U.S.C. 106(g), 40103, 40113, days and closed on April 29, 1998. The material information concerning the 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959– Commission has carefully considered commodity pool in a concise, readable 1963 Comp., p. 389. the comments received on the Proposal format prior to their deciding whether to § 71.1 [Amended] and, based upon its review of these invest in a commodity pool. comments and its consideration of the The comment period for the Proposal 2. The incorporation by reference in Rule, the Interpretive Notice and the ended on April 29, 1998. The 14 CFR 71.1 of the Federal Aviation proposed Commission rule Commission received seven comment Administration Order 7400.9F, Airspace amendments, is approving the Proposal letters. The commenters consisted of: Designations and Reporting Points, pursuant to Section 17(j) of the one self-regulatory organization; one dated September 10, 1998, and effective Commodity Exchange Act 2 (‘‘Act’’) registered futures commission merchant September 16, 1998, is amended as subject to the revisions discussed (‘‘FCM’’); one formerly registered follows: herein. associated person of an FCM; one law Paragraph 6002 Class E airspace designated EFFECTIVE DATE: April 30, 1999. firm; one futures industry trade as a surface area for an airport. association; one bar association; and one FOR FURTHER INFORMATION CONTACT: * * * * * * * academician. Leanna L. Morris, Staff Attorney, All commenters supported the ANM WY E2 Riverton, WY [Revised] Division of Trading and Markets, rulemaking in general. Some Riverton Regional Airport, WY Commodity Futures Trading commenters, however, advocated (Lat. 43°03′51′′N, Long. 108°27′35′′W) Commission, 1155 21st Street, NW, various changes to the proposed rules. Riverton VOR/DME Washington, DC 20581. Telephone: The Commission has carefully ° ′ ′′ ° ′ ′′ (Lat. 43 03 57 N, Long. 108 27 20 W) (202) 418–5466. considered the comments received and, Within a 4.2-mile radius of the Riverton SUPPLEMENTARY INFORMATION: based upon its review of the comments Regional Airport, and within 1.8 miles each ° I. Background and its own consideration of the Rule, side of the Riverton VOR/DME, 291 radial the Interpretive Notice and the proposed extending from the 4.2-mile radius to 7 miles Pursuant to Commission Rule 4.21,3 west of the VOR/DME, and within 2.7 miles Commission rule amendments, has ° no commodity pool operator (‘‘CPO’’) determined to adopt the Proposal, each side of the Riverton VOR/DME 123 registered or required to be registered radial extending from the 4.2-mile radius to subject to the modifications discussed 7 miles southeast of the VOR/DME. under the Act may, directly or herein. Comments received on the indirectly, solicit, accept or receive Proposal are discussed below. * * * * * funds, securities or other property from Issued in Seattle, Washington, on October II. Transitional Provision 19, 1998. a prospective participant in a pool that it operates or intends to operate unless, Helen Fabian Parke, To facilitate the transition to on or before the date it engages in that compliance with the Rule and the Manager, Air Traffic Division, Northwest activity, the CPO delivers or causes to Mountain Region. Commission rule amendments, NFA be delivered to the prospective and the Commission have determined [FR Doc. 98–29128 Filed 10–29–98; 8:45 am] participant a Disclosure Document for that the revisions being announced BILLING CODE 4910±13±M the pool containing the information set today will become effective six months forth in Commission Rule 4.24.4 NFA from the date hereof, but Disclosure and the Commission have worked to Documents may be prepared, filed and COMMODITY FUTURES TRADING identify ways in which the required used in accordance with the revised COMMISSION disclosures could be more succinct and rules prior to the effective date. For clear, while adhering to the objective of pools that are continuously offered, 17 CFR Part 4 protecting pool participants by ensuring amendment of the Disclosure Document Two-Part Documents for Commodity that participants are informed about the is not required solely due to the rule Pools material facts concerning the pool revisions announced herein, and before committing funds. operators of such pools may make AGENCY: Commodity Futures Trading Over the years, however, pool conforming changes as part of their next Commission. Disclosure Documents have become regular update in accordance with ACTION: Final rule. more voluminous and more difficult to CommissionRule 4.26. understand. In an effort to address SUMMARY: On March 30, 1998, the concerns that essential information is III. Discussion Commodity Futures Trading not reaching investors in a form that can A. Delivery of a Two-Part Document Commission (‘‘CFTC’’ or be easily understood, NFA submitted The Rule requires that the CPO of a ‘‘Commission’’) published for comment NFA Compliance Rule 2–35 subsections commodity pool required to register its the National Futures Association’s (a) through (c) and its related securities under the Securities Act of (‘‘NFA’’) Compliance Rule 2–35 Interpretive Notice for Commission 1 1933 (‘‘public pool’’) deliver a two-part subsections (a) through (c) (‘‘the approval. The purpose of the Rule is to document. The first part of the Rule’’), its related Interpretive Notice, provide potential investors with document must be the Disclosure and proposed amendments to Document required by Commission Rule 2 7 U.S.C. § 21(j) (1994). Commission rules concerning the use of 4.21(a), written using plain English two-part documents for commodity 3 Commission rules referred to herein can be principles 5 and limited to specific pools (collectively ‘‘the Proposal’’). The found at 17 CFR Ch. I (1998). 4 Commission Rule 4.24 also contains a proviso comment period for the Proposal was 30 that, where the prospective participant is an 5 NFA’s Interpretive Notice to Rule 2–35 provides accredited investor as defined in 17 CFR 230.501(a), guidance on what is meant by the use of ‘‘plain 1 NFA has since submitted new subsections (d) a notice of intended offering and statement of the English principles.’’ Such principles include: using and (e) to NFA Rule 2–35, which are not related to terms of the intended offering may be provided active voice; using short sentences and paragraphs; the use of a two-part document. NFA Rule 2–35 prior to delivery of a Disclosure Document, subject breaking up the document into short sections; using subsections (d) and (e) will be reviewed by the to compliance with the rules promulgated by a titles and sub-titles that specifically describe the Commission as a separate submission pursuant to registered futures association pursuant to section contents of each section; using words that are § 17(j) of the Commodity Exchange Act. 17(j) of the Act. definite, concrete, and part of everyday language; Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58301 disclosure information, as discussed in 4.21(a) be clear and concise, written Commission Rule 4.25(a)(2)(i) also will detail below. The second part is the using plain English principles, and not be revised as originally proposed. Statement of Additional Information limited to the information required by Accordingly, the offered pool’s monthly (‘‘SAI’’), which may include information Commission Rules 4.24 and 4.25, rate of return information must be that is not in the Disclosure Document, provided, however, that the CPO may provided in the first part of a two-part provided that the information is not provide the performance information document in the performance capsule misleading or otherwise inconsistent required by Commission Rule 4.25(c)(5) required by Commission Rule 4.25. with applicable statutes, rules or in the SAI. It should be noted that, if the C. Commission Rule 4.24(v)— regulations. CPO does not prepare an SAI, the Supplemental Information The CPO of a commodity pool that is performance information required under not required to register its securities Commission Rule 4.25(c)(5) must be The Rule provides that the Disclosure under the Securities Act of 1933 included in the Disclosure Document. Document must be limited to and (‘‘private pool’’) 6 must prepare and The Disclosure Document must also include all of the required information distribute a Disclosure Document and include any other information necessary of Commission Rules 4.24 and 4.25, may prepare and distribute an SAI, but to understand the fundamental with the noted exception that the is not required to do so. If the CPO of characteristics of the pool or to keep the summary performance information a private pool chooses to prepare an Disclosure Document from being required by Commission Rule 4.25(c)(5) SAI, it may be bound together with the misleading. may be provided in an SAI if one is Disclosure Document, so long as the In support of the Rule, the prepared. Accordingly, Commission Disclosure Document comes first. If the Commission has amended Commission Rule 4.24(v) has been revised to require CPO of a private pool binds the SAI Rule 4.25(c)(5) to permit the summary that supplemental information, which is separately, the CPO is not required to description of the performance history not required information 8 be contained provide it to a prospective participant of the CTAs and investee pools for only in the second part of a two-part unless requested by the prospective which performance is not required to be document. Such information may not be participant. disclosed pursuant to Commission presented in the Disclosure Document. One commenter stated that the use of Rules 4.25(c)(3) and 4.25(c)(4) Several commenters stated that the the two-part format should be optional (hereinafter ‘‘non-major CTAs’’ and provisions should not be so restrictive for CPOs of private pools. The ‘‘non-major investee pools’’) 7 to be on what is allowed to be included in the Commission notes that the intent of the provided in the SAI. Disclosure Document. They maintained Rule is to provide all investors with a The Rule originally proposed also that, because of the varying structure more concise and readable document. permitting the CPO to provide the and objectives of each commodity pool, Accordingly, it would defeat the monthly rate of return information of discretion should be provided to CPOs purpose of the Rule if CPOs of private the offered pool, required under in deciding what information to include pools were allowed to choose whether Commission Rule 4.25(a)(1)(i)(H), in the in the Disclosure Document. For to adhere to the format and disclosure SAI, separated from the remainder of example, some CPOs may want to requirements of the Rule. As discussed the required performance capsule. One include the limited partnership in detail below, if the CPO of a private commenter stated, however, that the agreement in the Disclosure Document. pool chooses not to disclose monthly performance information of the One commenter also stated that CPOs supplemental information as defined in offered pool is too crucial to the should be permitted to include Commission Rule 4.24(v), the CPO evaluation of a CPO to permit the supplemental performance information needs to prepare and distribute only the information to be placed in the SAI, with the required performance Disclosure Document containing the where it may be missed or overlooked. disclosures, since ‘‘[s]upplemental information required by the Rule and The commenter stated that the performance information is often closely does not need to prepare a separate SAI. ‘‘[r]eliance on a single yearly rate of related to the required performance Also, CPOs of private pools have the return will allow a CPO to better disclosures and is often based [on] choice of binding the SAI to the disguise wildly aberrant performance of required performance figures.’’ Disclosure Document or separately the pool.’’ As discussed earlier, the intent providing the SAI upon request of the The Commission has considered the behind providing investors with a two- prospective participant. Accordingly, Proposal and has concluded that the part document is to provide a more the Commission does not believe that monthly rate of return information of understandable Disclosure Document CPOs of private pools should be given the offered pool is necessary to disclose that discloses essential information the option of choosing between the new the volatility of the pool to investors. about a pool in such a way that will two-part format or the previous The Commission does not believe that assist investors in making informed disclosure format of Part 4 of the such material information concerning decisions about whether to invest in the Commission’s rules. the pool’s performance should be pool. Accordingly, permitting the separated between two parts of a inclusion of supplemental information, B. Information Required To Be in the Disclosure Document. Thus, NFA has such as a limited partnership agreement Disclosure Document revised its Rule by deleting that specific or non-required performance The Rule provides that the Disclosure provision from the final rule. information which will increase the Document required by Commission Rule length of the Disclosure Document, is 7 Commission Rule 4.10(d)(5) defines major not in accordance with the intent of the avoiding legal jargon and highly technical terms; investee pool as any investee pool that is allocated two-part document format. Such using glossaries to define technical terms that or intended to be allocated at least ten percent of cannot be avoided; avoiding multiple negatives; and the net asset value of the pool. Commission Rule information would be more using tables and bullet lists, where appropriate. The 4.10(i) defines major commodity trading advisor as, Rule does not affect the prescribed statements of with respect to a pool, any CTA that is allocated 8 Pursuant to Commission Rule 4.24(v), Commission Rules 4.24(a) and 4.24(b). or intended to be allocated at least ten percent of supplemental information is any information that is 6 Pursuant to Commission Rule 4.24(d)(3)(i), a the pool’s funds available for commodity interest not required by Commission rules, the antifraud ‘‘private pool’’ is one that is privately offered trading. Accordingly, ‘‘non-major CTAs’’ and ‘‘non- provisions of the Act, other federal or state laws or pursuant to section 4(2) of the Securities Act of major investee pools’’ do not meet the ten percent regulations, rules of a self-regulatory agency or laws 1933 or pursuant to Regulation D thereunder. allocation requirement. of a non-United States jurisdiction. 58302 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations appropriately placed in the SAI, where expands the use of plain English RFA.13 The Commission previously has it will not distract the investor from the principles, it does not conflict with the determined that registered CPOs are not material disclosures contained in the SEC’s requirements. small entities for the purpose of the Disclosure Document. In preparing the related Interpretive RFA.14 Therefore, the Chairperson, on That is not to say that the information Notice, which provides guidance on behalf of the Commission, hereby provided in the SAI may not be useful plain English principles and the certifies, pursuant to 5 U.S.C. 605(b), information to prospective participants. disclosures that must be provided in the that the action taken herein will not The SAI may include information that Disclosure Document, NFA’s have a significant economic impact on expands upon the required information Subcommittee for the Review of Non- a substantial number of small entities. Performance CPO/CTA Disclosure found in the Disclosure Document, B. Paperwork Reduction Act provided that such information is not Issues (‘‘Subcommittee’’) looked at what misleading or inconsistent with was then SEC Form N–1A. SEC Form The Paperwork Reduction Act of 15 applicable statutes, rules or regulations. N–1A sets out the disclosures required 1995 imposes certain requirements on However, the Commission believes that to be included in the prospectus and the federal agencies (including the it is more useful to the typical or SAI for mutual funds. The Commission) in connection with their average investor to provide essential Subcommittee used SEC Form N–1A as conducting or sponsoring any collection information concerning an investment a general guide for determining what of information as defined by the in the pool in a shorter and simpler disclosures the SEC might require to be Paperwork Reduction Act. Disclosure Document. included in the Disclosure Document There is no burden associated with for publicly offered commodity pools. the amendments to Commission Rules D. Coordination With Other Regulatory Although the SEC has since adopted 4.24(v) or 4.25(c)(5) to implement the Agencies amendments to SEC Form N–1A,11 the NFA rule. The group of rules contained Several commenters expressed Commission believes that NFA in all of Part 4, ‘‘Commodity Pool concern over CFTC and Securities and Compliance Rule 2–35 and its related Operators and Commodity Trading Exchange Commission (‘‘SEC’’) Interpretive Notice provide sufficient Advisors,’’ of which Rules 4.24(v) and coordination of regulatory requirements guidance on what disclosures the SEC 4.25(c)(5) are a part, was approved on for publicly offered commodity pools. and state securities administrators will September 4, 1998 and assigned OMB Specifically, the commenters want the require to be included in the Disclosure control number 3038–0005. The group Commission to be certain that the use of Document. Additionally, the Rule and of rules contained in OMB control the two-part format and plain English the Interpretive Notice have been number 3038–0005 has the following requirements will not conflict with any written to contain the necessary burden: disclosure requirements of the SEC for flexibility to address the disclosure Average burden hours per response: commodity pools. The commenters urge requirements of the SEC and state 124.65 securities administrators as they may the CFTC and the SEC to develop Number of respondents: 4,624 change over time.12 Accordingly, the uniform standards on the use of two- Frequency of response: On occasion Commission believes that any concerns part documents and plain English Copies of the information collection about conflicting regulatory principles. submission to OMB are available from requirements have been addressed the CFTC Clearance Officer, 1155 21st In drafting the Rule and its related adequately. The Commission will Interpretive Notice, NFA considered the Street, NW, Washington, DC 20581, continue to coordinate with the SEC on (202) 418–5160. disclosure and formatting requirements maintaining consistent requirements for of the SEC and state securities publicly offered commodity pools. List of Subjects in 17 CFR Part 4 administrators in an effort to avoid any Brokers, Commodity futures, IV. Related Matters conflicting regulatory requirements. Commodity pool operators, Commodity Accordingly, the Rule provides that any A. Regulatory Flexibility Act trading advisors. information required by the SEC or state In consideration of the foregoing and securities administrators to be included The Regulatory Flexibility Act pursuant to the authority contained in in the first part of a two-part document (‘‘RFA’’), 5 U.S.C. 601–611, requires that the Commodity Exchange Act and in must be included in the Disclosure agencies, in proposing rules, consider particular sections 2(a)(1), 4l, 4m, 4n, Document. the impact of those rules on small 4o, and 8a, 7 U.S.C. 2, 6l, 6m, 6n, 6o, The Rule also substantially adopts the businesses. The rule amendments discussed herein will affect registered and 12(a), the Commission hereby ‘‘plain English’’ initiative of the SEC.9 CPOs. The Commission has previously amends Chapter I of Title 17 of the Code The Rule, however, requires that all established certain definitions of ‘‘small of Federal Regulations as follows: parts of the Disclosure Document must entities’’ to be used by the Commission be written using plain English in evaluating the impact of its rules on PART 4ÐCOMMODITY POOL principles, rather than limiting the plain such entities in accordance with the OPERATORS AND COMMODITY English principles to a few specific TRADING ADVISORS disclosures, as provided in the SEC’s document, but does not enhance the quality of the 10 1. The authority citation for part 4 rule. Accordingly, although the Rule information. 11 63 FR 13916 (March 23, 1998). continues to read as follows: 9 See 63 FR 6370 (February 6, 1998). 12 The Interpretive Notice to NFA Compliance Authority: 7 U.S.C. 1a, 2, 4, 6b, 6c, 6l, 6m, 10 SEC Rule 421(b), however, does require that the Rule 2–35 provides: ‘‘The Disclosure Document 6n, 6o, 12a and 23. entire prospectus be clear, concise and may also include information required by the understandable and requires using the following Securities and Exchange Commission and state 2. Section 4.24(v) is amended by techniques, among others: present information in securities administrators. Such information revising paragraph (v)(3) introductory clear, concise sections, paragraphs and sentences; currently includes items such as * * *’’ (emphasis text to read as follows: avoid legal and highly technical business added). The language of the Interpretive Notice terminology; avoid legalistic or overly complex acknowledges that the disclosures required by the presentations that make the substance of the SEC and state securities administrators may differ 13 47 FR 18618–18621 (April 30, 1982). disclosure difficult to understand; and avoid over time from the requirements as of the date of 14 47 FR 18619–18620. repetitive disclosure that increases the size of the the Interpretive Notice. 15 Pub. L. 104–13 (May 13, 1995). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58303

§ 4.24 General disclosures required. implement a NICS appeals policy for will not be charging the user fee set * * * * * persons denied acquisition of a firearm forth in the proposed NICS user fee (v) * * * based on information in the NICS that regulation. This does not preclude state (3) Must be placed as follows, unless they believe to be erroneous or or local agencies acting as POCs for the otherwise specified by Commission incomplete. NICS from charging such fees as may be rules, provided that where a two-part EFFECTIVE DATE: November 30, 1998. appropriate under state or local law. document is used pursuant to rules FOR FURTHER INFORMATION CONTACT: The NICS Audit Log promulgated by a registered futures Emmet A. Rathbun, Unit Chief, Federal association pursuant to Section 17(j) of Bureau of Investigation, Module C–3, A significant number of comments the Act, all supplemental information 1000 Custer Hollow Road, Clarksburg, were received opposing the retention by must be provided in the second part of West Virginia 26306–0147, telephone the NICS of a temporary log of the two-part document: number (304) 625–2000. background check transactions that allow a firearm transfer to proceed. Most SUPPLEMENTARY INFORMATION: * * * * * This rule of these comments expressed an opinion 3. Section 4.25 is amended by revising finalizes two notices of proposed that such a log would constitute a paragraph (c)(5) introductory text to rulemaking: the National Instant national firearms registry, the read as follows: Criminal Background Check System establishment of which is prohibited by Regulation published in the Federal § 4.25 Performance disclosures. the Brady Act. Register on June 4, 1998 (63 FR 30430), The FBI will not establish a federal (c) * * * and the National Instant Criminal firearms registry. The FBI is expressly (5) With respect to commodity trading Background Check System User Fee barred from doing so by section 103(i) advisors and investee pools for which Regulation, published in the Federal of the Brady Act. In order to meet her performance is not required to be Register on August 17, 1998 (63 FR responsibility to maintain the integrity disclosed pursuant to § 4.25(c)(3) and 43893). The FBI accepted comments on of Department systems, however, the (4), the pool operator must provide a the proposed rules from interested Attorney General must establish an summary description of the parties until September 16, 1998, and adequate system of oversight and performance history of each of such approximately 2,000 comments were review. Consequently, the FBI has advisors and pools including the received. proposed to retain records of approved following information, provided that In publishing this final rule, the transactions in an audit log for a limited where the pool operator uses a two-part Department also is giving notice, period of time solely for the purpose of document pursuant to the rules pursuant to section 103(d) of the Brady satisfying the statutory requirement of promulgated by a registered futures Act, Public Law 103–159, 107 Stat. ensuring the privacy and security of the association pursuant to Section 17(j) of 1536, to Federal Firearm Licensees NICS and the proper operation of the the Act, such summary description may (FFLs) and the chief law enforcement system. Although the Brady Act be provided in the second part of the officer of each state that the NICS is mandates the destruction of all two-part document: established as of October 31, 1998. With personally identified information in the * * * * * limited exceptions, FFLs are required by NICS associated with approved firearms Dated: October 26, 1998. the Brady Act to begin contacting the transactions (other than the identifying By the Commission. system beginning on November 30, number and the date the number was 1998, thirty days after the establishment Jean A. Webb, assigned), the statute does not specify a of the system, before they may transfer Secretary of the Commission. period of time within which records of a firearm to a non-licensee. FFLs shall approvals must be destroyed. The [FR Doc. 98–29102 Filed 10–29–98; 8:45 am] contact the NICS by contacting either BILLING CODE 6351±01±P Department attempted to balance the FBI NICS Operations Center or a various interests involved and comply state point of contact (POC) for the with both statutory requirements by NICS, as specified by the Bureau of retaining such records in the NICS DEPARTMENT OF JUSTICE Alcohol, Tobacco, and Firearms (ATF), Audit Log for a limited, but sufficient, United States Department of the 28 CFR Part 25 period of time to conduct audits of the Treasury. The ATF will notify each FFL NICS. [AG Order No. 2186±98] of the method by which FFLs must The NICS Audit Log will contain contact the NICS in their state. information relating to each NICS RIN 1105±AA51 Significant Comments or Changes background check requested by FFLs and will allow the FBI to audit use of National Instant Criminal Background The NICS User Fee Check System Regulation the system by FFLs and POCs. By The largest number of comments auditing the system, the FBI can identify AGENCY: Federal Bureau of pertained to the FBI’s proposed user fee instances in which the NICS is used for Investigation, Department of Justice. to be charged FFLs that contact the FBI unauthorized purposes, such as running ACTION: Final rule. NICS Operations Center directly for a checks of people other than actual gun NICS background check. All of those transferees, and protect against the SUMMARY: The United States Department who commented on the proposed user invasions of privacy that would result of Justice (DOJ) is publishing a final rule fee opposed the fee. This issue was the from such misuse. Audits can also implementing the National Instant subject of Congressional action since the determine whether potential handgun Criminal Background Check System time of the initial publication of the purchasers or FFLs have stolen the (NICS) pursuant to the Brady Handgun proposed NICS rule. The Omnibus identity of innocent and unsuspecting Violence Prevention Act (‘‘Brady Act’’), Appropriations Act for fiscal year 1999 individuals or otherwise submitted false to provide notice of the establishment of provided additional monies to the FBI identification information, in order to the NICS, to establish policies and to fund the operation of the NICS and thwart the name check system. The procedures for ensuring the privacy and prohibited the FBI from charging a fee Audit Log will also allow the FBI to security of this system, and to for NICS checks. Accordingly, the FBI perform quality control checks on the 58304 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations system’s operation by reviewing the this information by the FBI is in the ATF who defines what constitutes a accuracy of the responses given by the NICS Audit Log. Similar steps will be firearms transfer, how long a NICS record examiners to gun dealers. taken to prevent such logging in the background check is valid, which Under the proposed rule, personally future FBI information systems NCIC firearm permits constitute a substitute identified information in the NICS 2000 and the Integrated Automated or alternative to a background check, Audit Log associated with allowed Fingerprint Identification System and the recordkeeping requirements for transfers would be destroyed after (IAFIS) as soon as practicable, but in no FFLs. The ATF has issued proposed eighteen months. Because of the event more than one year after those regulations dealing with these issues. numerous comments objecting to this systems come on-line in July 1999. For (63 FR 8379). Questions and comments retention period as too long, the NICS disaster recovery, a tape of each about these matters should be directed Department reexamined the time period weekly, full system backup will be to the ATF. needed to perform audits of the NICS. maintained in an off-site location for up A number of comments from the In light of the statutory requirement that to six months. Full system backup tapes pawnbrokers’ industry addressed the records for allowed transfers be will also be stored locally to recycle the circumstances that will develop when a destroyed, and the countervailing off-site storage. The FBI keeps no person redeems a firearm from pawn but statutory requirement to provide for systematic paper copies of transactions. the firearm cannot be transferred back to system privacy and security, the Finally, comments were received from the individual because of a Department determined that the general state and local law enforcement disqualifying record found by the NICS retention period for records of allowed agencies that will serve as POCs seeking check. The U.S. Department of Treasury transfers in the NICS Audit Log should clarification that none of the Fiscal Year 1999 appropriations be the minimum reasonable period for information about NICS checks in state legislation includes a provision to allow performing audits on the system, but in record systems that they maintain pawnbrokers the option of requesting a no event more than six months. Section pursuant to state law will be subject to NICS background check at the time a 25.9(b) in the final rule was revised to the record destruction requirement. The person offers the firearm for pawn. An reflect this and to provide that such proposed rule provided: (1) that POC additional check would still be information may be retained for a longer records of inquiry and response necessary at the time of redemption. period if necessary to pursue identified messages relating to the initiation and NICS will be made available to cases of misuse of the system. The result of a NICS check that allows a pawnbrokers for this purpose. No Department further determined that the transfer must be destroyed; and (2) that change in the rule is necessary to FBI shall work toward reducing the POC records of NICS checks that the address this. retention period to the shortest POC processes that are part of a state Use of State Points of Contact practicable period of time less than six record system created and maintained months that will allow basic security in accordance with state law are not Some comments questioned the audits of the NICS. By February 28, subject to the Brady Act record legality of using state POCs to process 1999, the Department will issue a notice destruction requirement. Sections NICS checks in light of the Supreme of a proposed revision of the regulation 25.9(d)(1) and (2) of the final rule were Court’s decision in Printz v. United setting forth a further reduced period of revised to make it clear that the States, 117 S. Ct. 2365 (1997), which retention that will be observed by the referenced state records of allowed held that Congress could not compel the system. transfers would not be subject to the states to perform Brady checks. In Various comments expressed concern Brady Act record destruction response to these comments we note that the Audit Log would allow POCs requirement if they are part of a record that the states that will act as POCs for and law enforcement agencies access to system created and maintained pursuant the NICS are not being required to do so records of approved transfers. This is to independent state law regarding by Federal law or regulation, but will do not a well-founded concern because firearms transfers. The reason for this so voluntarily pursuant to their own only the FBI will be able to access clarification is to avoid interfering with state authority. The final rule’s information in the transaction log. state regulation of firearms. If a state is definition of a POC acknowledges that Section 25.9(b)(1) of the final rule was performing a gun eligibility check under a state or local agency serving that revised to provide explicitly that such state law, and state law requires or function will be doing so by express or information is available only to the FBI, allows the retention of the records of implied authority pursuant to state and only for the purposes of conducting those checks, the state’s retention of statute or executive order. audits of the use and performance of the records of the concurrent performance Some commenters objected to the use NICS or pursing cases of misuse of the of a NICS check would not add any of state or local law enforcement system. more information about gun ownership agencies as NICS POCs even if such There were also suggestions in the than the state already retains under its agencies do so voluntarily. The FBI comments that more specific language own law. considers the use of POCs (serving as be added to the final rule setting forth intermediaries between FFLs and the requirements for the FBI to ensure that NICS Checks on Pawnshop system) to be an appropriate means to transaction logs of the separate National Redemptions and Gunsmith implement the Brady Act. Fostering Crime Information Center (NCIC) record Transactions state and local participation in the NICS system also be destroyed to the extent A significant number of comments on is entirely consistent with both our they reflect allowed firearm transfers. this rule pertained to conducting federal form of government and with The NCIC information system is background checks on firearms practices under the Brady Act’s interim separate from the NICS. Nonetheless, redeemed from pawnshops and firearms provision. Moreover, state and local the FBI has taken steps to preclude that were the subject of repair or authorities are likely to have readier transaction logging of personally modification by a gunsmith. Although access to more detailed information identified information in either NCIC or the Brady Act requires the Attorney than a single centralized processor, such the Interstate Identification Index (III) General to establish a national instant as the FBI, thus resulting in fewer that would pertain to allowed firearm criminal background check system, it is system misses of disqualified persons transactions. Thus, the only logging of the Secretary of Treasury through the and enhancing system responsiveness Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58305 for non-disqualified persons. The final retains this provision of the proposed restrict the use of such information. The rule therefore retains the POC rule. FBI notes that law enforcement has provisions of the proposed rule. At least one comment asked about the access to the vast majority of records system’s handling of persons who have available to the NICS through the Other Comments been granted relief from disabilities and National Crime Information Center Other comments addressed matters the safeguards to ensure this relief is (NCIC) or the Interstate Identification that were established by the Brady Act recognized by the NICS. Initially, the Index (III). and are not subject to change by NICS will not contain records on A number of state officials who will regulation, or addressed matters over persons granted relief from firearm be acting as POCs in their states which the Attorney General has no disabilities by the ATF. A procedure commented that they verify the identity authority under the Brady Act. will be implemented, however, so that of the FFLs by means other than the FFL Accordingly, no changes were made to the NICS Operations Center can verify number assigned by the ATF. They this final rule for comments such as the the status of such individuals when they further commented that they may following: long guns should be wish to obtain a firearm. The ATF has provide a state number rather than a exempted from background checks; a agreed to notify the FBI if and when it NICS system transaction number to the government-issued photo identification grants relief from disabilities in the FFLs for approved sales. They may not should not be required for transferee future by providing the individuals’ provide a number for a denied sale. identification; disqualifying information names and FBI identification numbers Section 25.6(d), (g), and (i) were should be included on a person’s for inclusion in its records. This matter changed to accommodate the state drivers license to make a NICS check will also be the subject of discussion systems. unnecessary; there should be no with state law enforcement agencies that Several comments expressed the immunity from liability for persons or include or should include information desire for the FBI to have both agencies providing information to the in their record systems about relief telephone and electronic dial-up access NICS; the Attorney General should not granted to persons under state statute. fully available for background checks be permitted to obtain information A small number of comments when the NICS becomes available relevant to NICS determinations from suggested that the FBI establish its November 30, 1998. The FBI also would other federal agencies; and FFLs should regular business hours beginning at 8:00 like to have electronic access fully be able to transfer a firearm sooner than a.m. in the earlier time zones and/or deployed as soon as possible since the the expiration of three business days in requiring POCs to offer hours of 9:00 electronic access improves service and the absence of a NICS response. a.m. to 10:00 p.m. The final rule retains reduces the number of people needed to the FBI business hours of 9:00 a.m. to operate the system. Since the Brady Act Some comments also objected to the 2:00 a.m. It is understood that some requires telephone access at a use of a NICS ‘‘Delayed’’ response, places of business are open during minimum, the NICS system developers arguing that the Brady Act only hours during which the NICS have focused resources to make sure provides for approval and denial Operations Center is unavailable. that the basic system would be responses. We note that the ‘‘Delayed’’ However, the FBI is servicing retail operational on schedule. It now appears response is merely a way of stores in seven different time zones and that electronic dial-up access will communicating to the FFL that the has attempted to define its business become available to FFLs sometime after system requires additional time to hours to cover the peak sales times in November 30, 1998. Therefore, section research and evaluate whether the each zone. Additionally, in the near 25.6(b) was changed accordingly. This prospective transferee is disqualified future, the FBI will make electronic section was changed further to make it from receiving a firearm. The definition access available to FFLs. This access clear that there may be periods within of the ‘‘Delayed’’ response in the final will essentially allow FFLs to conduct a 24-hour day when NICS would be rule was revised to reflect this and the background checks 24 hours a day unavailable due to scheduled or fact that a ‘‘Delayed’’ response indicates except during minimal periods of unscheduled downtime. As soon as the that it would be unlawful to transfer the system maintenance. Guidelines for NICS is proven to have fully successful firearm pending receipt of a follow-up POCs have been distributed suggesting operating capability using telephone ‘‘Proceed’’ response from the NICS or minimum business hours of 10:00 a.m. access, all available resources will be the expiration of three business days, to 9:00 p.m., although these hours are directed toward the additional whichever occurs first. The law does not not mandatory. electronic access. The development time prohibit the system from making such a A number of law enforcement officials for this capability should be relatively response. noted that the proposed rule would not short because prototypes are already Some comments objected to allow a law enforcement officer to check complete. solicitation and retention of a the NICS for the status of a person in Some comments suggested that the prospective transferee’s Social Security possession of a firearm to help FBI provide a toll-free telephone number (SSN). As noted in the proposed investigate whether the person is number to individuals who are denied rule, a prospective transferee is free not unlawfully in possession. The proposed the transfer of a firearm and wish to to provide his or her SSN and will not rule also would not allow checks for appeal this denial, and that the FBI be denied NICS processing for failure to general law enforcement purposes. The establish in the final rule a time frame do so. However, voluntarily providing final rule remains unchanged in this within which the FBI and POCs would his or her SSN can benefit a prospective regard largely due to privacy-related have to respond to an appeal. The FBI transferee by helping NICS differentiate concerns expressed by the federal will provide a toll-free number for this the prospective transferee from other agencies supplying records to the NICS purpose. In most cases, however, a persons with similar names who may Index. Taking into account that the written appeal will be required to get have disqualifying records. Moreover, Brady Act expressly requires agencies to the appeal process started. No time the SSNs of non-disqualified transferees provide records to the NICS for Brady frame for answering appeals was will be destroyed with the rest of the Act purposes, the agencies were included in this rule since the Brady transferees’ identifying data at the end concerned that use for other purposes Act specifically provides that the NICS of 180 days. The final rule therefore would conflict with privacy statutes that will respond within five business days 58306 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations to individuals requesting the reasons for clarify the allowable non-Brady Act uses ensure the privacy and security of the being found ineligible to receive a of the NICS Index to include responding information in the NICS. The FBI is not firearm, and that the system to inquiries by criminal justice agencies aware of any relevant Federal rules that immediately consider an individual’s in connection with licenses or permits duplicate, overlap, or conflict with this submission to correct, clarify, or to carry a concealed firearm or to rule. supplement records in the NICS. import, manufacture, deal in, or The FBI has sent a notice, including In response to comments about FFL purchase explosives, and inquiries by a letter describing NICS and a NICS access to the NICS, section 25.6(b) was the ATF in connection with brochure, to each FFL in the states and modified to clarify that the FBI intends enforcement of the Gun Control Act (18 territories that are currently expected to to provide FFLs a toll-free number for U.S.C. Chapter 44), or the National be serviced directly by the FBI. The FBI both telephone and electronic dial-up Firearms Act (26 U.S.C. Chapter 53). has also met with FFLs at regional access. Section 25.8(b) was modified to indicate firearm seminars conducted by ATF to Technical Changes that the states will not be required to inform FFLs about NICS plans and to give the FBI a list of the Originating solicit comments needed to finalize The term ‘‘password’’ used in the Agency Identifiers (ORIs) for POCs these plans. These efforts were made by proposed rule has been changed to within the state. Section 25.8(i) was the FBI also to satisfy the ‘‘outreach’’ ‘‘code word’’ in the final rule. The term modified to correctly identify the provisions of 5 U.S.C. 609. ‘‘password’’ has a specific meaning and documents where security requirements Executive Order 12866 implications when used in the context are outlined. Section 25.9(a) was of computer security. The ‘‘code word’’ modified to clarify that in cases of The Department of Justice has selected by the FFL when enrolling with firearms disabilities that are not completed its examination of this final the FBI to gain access to the NICS does permanent, e.g., disqualifying rule in light of Executive Order 12866, not comply with all the security restraining orders, the NICS will section 1(b), Principles of Regulation. measures normally associated with a automatically purge the pertinent record The Department of Justice has ‘‘password.’’ Therefore, to avoid when it is no longer disqualifying. determined that this final rule is a creating a false impression, the term Section 25.10(a) was modified to allow ‘‘significant regulatory action’’ under ‘‘password’’ has been replaced by ‘‘code states to accept denial appeals in other section 3(f) of Executive Order 12866, word.’’ than written form. Regulatory Planning and Review, and In the final rule, words such as thus it has been reviewed by the Office ‘‘purchase’’ and ‘‘purchaser’’ were Applicable Administrative Procedures of Management and Budget (OMB). changed to words such as ‘‘obtain’’ and and Executive Orders Executive Order 12612 ‘‘transferee’’ to clarify that NICS checks Regulatory Flexibility Analysis apply to transfers and are not limited to This final rule will not have a firearm sales. The Attorney General, in accordance substantial direct effect on the states, on The definition of the term ‘‘Proceed’’ with the Regulatory Flexibility Act (5 the relationship between the national was modified in the final rule to clarify U.S.C. 605(b)), has reviewed this final government and the states, or on the that it means that information available regulation and by approving it certifies distribution of power and to the system at the time of the response that this regulation will not have a responsibilities among the various did not demonstrate that transfer of the significant economic impact on a levels of government. Therefore, in firearm would violate Federal or state substantial number of small entities. A accordance with Executive Order 12612, law and that, notwithstanding a Brady Act Task Group, composed of it is determined that this rule does not ‘‘Proceed’’ response from the NICS, an experienced state and local law have sufficient federalism implications FFL may not lawfully transfer a firearm enforcement officials, provided input on to warrant the preparation of a Federal if he or she knows or has reasonable the design of the NICS. When Assessment. cause to believe that the prospective developing the guidelines for the NICS, transferee is prohibited from receiving both the Task Group and the FBI took Unfunded Mandates Reform Act of 1995 or possessing firearms, or is otherwise into account the fact that many FFLs are This final rule will not result in the prohibited from transferring the firearm small businesses. A small firearm expenditure by state, local, and tribal under applicable Federal or state law. retailer is defined as having under $5.0 governments, in the aggregate, or by the The proposed rule provided that a million in annual gross receipts as private sector, of $100,000,000 or more denial by the NICS of a firearm transfer defined by 13 CFR 121.201. Firearm in any one year, and it will not would be based upon one or more retailers are included in the Standard significantly or uniquely affect small matching records that provide reason to Industrial Class (SIC) Code 5941. The governments. Therefore, no actions were believe that receipt of a firearm by a FBI has further considered that this rule deemed necessary under the provisions prospective transferee would violate 18 will apply to pawn redemptions, and of the Unfunded Mandates Reform Act U.S.C. 922 or state law. The final rule that many pawnbrokers are small of 1995. changes the terminology relating to entities. The obligation of FFLs to NICS denials to ‘‘information contact the NICS before transferring a Small Business Regulatory Enforcement demonstrating’’ rather than ‘‘reason to firearm, and the applicability of NICS Fairness Act of 1996 believe’’ in order to conform the checks to pawn redemptions, are This final rule is not a major rule as language of the regulation more closely imposed by the Brady Act and detailed defined by the Small Business to the language relating to denials in the in the proposed ATF regulations Regulatory Enforcement Fairness Act of Brady Act. implementing the permanent provisions 1996. 5 U.S.C. 804. This rule will not Section 25.6(a) in the final rule was of the Brady Act (63 FR 8379). In result in an annual effect on the modified to indicate that the ATF will designing the NICS, the FBI has sought economy of $100,000,000 or more, a advise FFLs whether they are required to avoid burdens on small entities major increase in costs or prices, or have to contact the FBI or a POC to initiate beyond those requirements needed to significant adverse effects on a NICS check and how they are to do conduct the statutorily prescribed competition, employment, investment, so. Section 25.6(j) was modified to background checks effectively and to productivity, innovation, or on the Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58307 ability of United States-based 1998, the OMB granted approval for the have been denied the right to obtain a companies to compete with foreign- data collection effort, and issued OMB firearm as a result of a NICS background based companies in domestic and control number 1110–0027 for inclusion check performed by the Federal Bureau export markets. on the data collection instrument. This of Investigation (FBI) or a state or local control number allows the FBI to collect law enforcement agency. Paperwork Reduction Act of 1995 this information for 180 days from the § 25.2 Definitions. The collection of information date of issue. The FBI will publish a contained in this final rule has been second notice in the Federal Register Appeal means a formal procedure to submitted to OMB for review in requesting OMB approval to collect this challenge the denial of a firearm accordance with the Paperwork data for a period of up to three years. transfer. Reduction Act of 1995 (44 U.S.C. ARI means a unique Agency Record 3507(d)). Public comment was solicited List of Subjects in 28 CFR Part 25 Identifier assigned by the agency in the notice of proposed rulemaking Administrative practice and submitting records for inclusion in the that preceded this final rule (63 FR procedure, Business and industry, NICS Index. 30430). In addition, three data Computer technology, Courts, Firearms, ATF means the Bureau of Alcohol, collection activities deemed necessary Law enforcement officers, Penalties, Tobacco, and Firearms of the for the implementation of the NICS were Privacy, Reporting and recordkeeping Department of Treasury. the subject of separate publications. requirements, Security measures, Audit log means a chronological record of system (computer) activities On May 31, 1998, the FBI submitted Telecommunications. a Paperwork Reduction Act request for Accordingly, chapter I of title 28 of that enables the reconstruction and emergency OMB review and clearance the Code of Federal Regulations is examination of the sequence of events of a proposed data collection entitled amended by adding part 25 to read as and/or changes in an event. Business day means a 24-hour day the NICS Firearm Dealers Survey. On follows: June 1, 1998, the FBI published a (beginning at 12:01 a.m.) on which state Federal Register notice (63 FR 29755) PART 25ÐDEPARTMENT OF JUSTICE offices are open in the state in which the announcing its intention to collect this INFORMATION SYSTEMS proposed firearm transaction is to take information. On June 21, 1998, the OMB place. granted approval for the data collection Subpart AÐThe National Instant Criminal Control Terminal Agency means a Background Check System effort, and issued OMB control number state or territorial criminal justice 1110–0025 for inclusion on the data Sec. agency recognized by the FBI as the collection instrument. This control 25.1 Purpose and authority. agency responsible for providing state- 25.2 Definitions. or territory-wide service to criminal number allows the FBI to collect survey 25.3 System information. data for 180 days from the date of issue. justice users of NCIC data. 25.4 Record source categories. Data source means an agency that The FBI published a second notice in 25.5 Validation and data integrity of records provided specific information to the the Federal Register (63 FR 44925) on in the system. NICS. August 21, 1998, requesting OMB 25.6 Accessing records in the system. Delayed means that more research is approval to collect this data for a period 25.7 Querying records in the system. required prior to a NICS ‘‘Proceed’’ or of up to three years. 25.8 System safeguards. ‘‘Denied’’ response. A ‘‘Delayed’’ On July 16, 1998, the FBI submitted 25.9 Retention and destruction of records in response to the FFL indicates that it a Paperwork Reduction Act request for the system. 25.10 Correction of erroneous system would be unlawful to transfer the emergency OMB review and clearance information. firearm until receipt of a follow-up of a proposed data collection entitled 25.11 Prohibited activities and penalties. ‘‘Proceed’’ response from the NICS or the NICS Federal Firearms Licensee Authority: Pub. L. 103–159, 107 Stat. 1536. the expiration of three business days, (FFL) Enrollment Form. On July 23, whichever occurs first. 1998, the FBI published a Federal Subpart AÐThe National Instant Denied means denial of a firearm Register notice (63 FR 39594) Criminal Background Check System transfer based on a NICS response announcing its intention to collect this § 25.1 Purpose and authority. indicating one or more matching records information. On August 3, 1998, OMB were found providing information The purpose of this subpart is to granted approval for the data collection demonstrating that receipt of a firearm establish policies and procedures effort, and issued OMB control number by a prospective transferee would implementing the Brady Handgun 1110–0026 for inclusion on the data violate 18 U.S.C. 922 or state law. collection instrument. This control Violence Prevention Act (Brady Act), Denying agency means a POC or the number allows the FBI to collect Public Law 103–159, 107 Stat. 1536. NICS Operations Center, whichever enrollment information for 180 days The Brady Act requires the Attorney determines that information in the NICS from the date of issue. The FBI will General to establish a National Instant indicates that the transfer of a firearm to publish a second notice in the Federal Criminal Background Check System a person would violate Federal or state Register requesting OMB approval to (NICS) to be contacted by any licensed law, based on a background check. collect this data for a period of up to importer, licensed manufacturer, or Dial-up access means any routine three years. licensed dealer of firearms for access through commercial switched On July 27, 1998, the FBI submitted information as to whether the transfer of circuits on a continuous or temporary a Paperwork Reduction Act request for a firearm to any person who is not basis. emergency OMB review and clearance licensed under 18 U.S.C. 923 would be Federal agency means any authority of a proposed data collection entitled in violation of Federal or state law. The of the United States that is an ‘‘Agency’’ the FFL Execution of Acknowledgment regulations in this subpart are issued under 44 U.S.C. 3502(1), other than of Obligations and Responsibilities pursuant to section 103(h) of the Brady those considered to be independent Under the NICS. On August 3, 1998, the Act, 107 Stat. 1542 (18 U.S.C. 922 note), regulatory agencies, as defined in 44 FBI published a Federal Register notice and include requirements to ensure the U.S.C. 3502(10). (63 FR 41296) announcing its intention privacy and security of the NICS and FFL (federal firearms licensee) means to collect this information. On August 3, appeals procedures for persons who a person licensed by the ATF as a 58308 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations manufacturer, dealer, or importer of criteria for ORI assignment to identify § 25.4 Record source categories. firearms. the agency in transactions on the NCIC It is anticipated that most records in Firearm has the same meaning as in System. the NICS Index will be obtained from 18 U.S.C. 921(a)(3). Originating Agency means an agency Federal agencies. It is also anticipated Licensed dealer means any person that provides a record to a database that a limited number of authorized defined in 27 CFR 178.11. checked by the NICS. state and local law enforcement Licensed importer has the same POC (Point of Contact) means a state agencies will voluntarily contribute meaning as in 27 CFR 178.11. or local law enforcement agency serving records to the NICS Index. Information Licensed manufacturer has the same as an intermediary between an FFL and in the NCIC and III systems that will be meaning as in 27 CFR 178.11. the federal databases checked by the searched during a background check has NCIC (National Crime Information NICS. A POC will receive NICS been or will be contributed voluntarily Center) means the nationwide background check requests from FFLs, by Federal, state, local, and computerized information system of check state or local record systems, international criminal justice agencies. criminal justice data established by the perform NICS inquiries, determine FBI as a service to local, state, and whether matching records provide § 25.5 Validation and data integrity of Federal criminal justice agencies. information demonstrating that an records in the system. NICS means the National Instant individual is disqualified from (a) The FBI will be responsible for Criminal Background Check System, possessing a firearm under Federal or maintaining data integrity during all which an FFL must, with limited state law, and respond to FFLs with the NICS operations that are managed and exceptions, contact for information on results of a NICS background check. A carried out by the FBI. This whether receipt of a firearm by a person POC will be an agency with express or responsibility includes: who is not licensed under 18 U.S.C. 923 implied authority to perform POC duties (1) Ensuring the accurate adding, would violate Federal or state law. pursuant to state statute, regulation, or canceling, or modifying of NICS Index NICS Index means the database, to be executive order. records supplied by Federal agencies; managed by the FBI, containing Proceed means a NICS response (2) Automatically rejecting any information provided by Federal and indicating that the information available attempted entry of records into the NICS state agencies about persons prohibited to the system at the time of the response Index that contain detectable invalid under Federal law from receiving or did not demonstrate that transfer of the data elements; possessing a firearm. The NICS Index is firearm would violate federal or state (3) Automatic purging of records in separate and apart from the NCIC and law. A ‘‘Proceed’’ response would not the NICS Index after they are on file for the Interstate Identification Index (III). relieve an FFL from compliance with a prescribed period of time; and NICS Operations Center means the other provisions of Federal or state law (4) Quality control checks in the form unit of the FBI that receives telephone that may be applicable to firearms of periodic internal audits by FBI or electronic inquiries from FFLs to transfers. For example, under 18 U.S.C. personnel to verify that the information perform background checks, makes a 922(d), an FFL may not lawfully transfer provided to the NICS Index remains determination based upon available a firearm if he or she knows or has valid and correct. information as to whether the receipt or reasonable cause to believe that the (b) Each data source will be transfer of a firearm would be in prospective recipient is prohibited by responsible for ensuring the accuracy violation of Federal or state law, law from receiving or possessing a and validity of the data it provides to researches criminal history records, firearm. the NICS Index and will immediately tracks and finalizes appeals, and Record means any item, collection, or correct any record determined to be conducts audits of system use. grouping of information about an invalid or incorrect. NICS Operations Center’s regular individual that is maintained by an § 25.6 Accessing records in the system. business hours means the hours of 9:00 agency, including but not limited to (a) FFLs may initiate a NICS a.m. to 2:00 a.m., Eastern Time, seven information that disqualifies the background check only in connection days a week. individual from receiving a firearm, and with a proposed firearm transfer as NICS Representative means a person that contains his or her name or other required by the Brady Act. FFLs are who receives telephone inquiries to the personal identifiers. NICS Operations Center from FFLs STN (State-Assigned Transaction strictly prohibited from initiating a requesting background checks and Number) means a unique number that NICS background check for any other provides a response as to whether the may be assigned by a POC to a valid purpose. The process of accessing the receipt or transfer of a firearm may background check inquiry. NICS for the purpose of conducting a proceed or is delayed. System means the National Instant NICS background check is initiated by NRI (NICS Record Identifier) means Criminal Background Check System an FFL’s contacting the FBI NICS the system-generated unique number (NICS). Operations Center (by telephone or associated with each record in the NICS electronic dial-up access) or a POC. Index. § 25.3 System information. FFLs in each state will be advised by the NTN (NICS Transaction Number) (a) There is established at the FBI a ATF whether they are required to means the unique number that will be National Instant Criminal Background initiate NICS background checks with assigned to each valid background Check System. the NICS Operations Center or a POC check inquiry received by the NICS. Its (b) The system will be based at the and how they are to do so. primary purpose will be to provide a Federal Bureau of Investigation, 1000 (b) Access to the NICS through the FBI means of associating inquiries to the Custer Hollow Road, Clarksburg, West NICS Operations Center. FFLs may NICS with the responses provided by Virginia 26306–0147. contact the NICS Operations Center by the NICS to the FFLs. (c) The system manager and address use of a toll-free telephone number, only ORI (Originating Agency Identifier) are: Director, Federal Bureau of during its regular business hours. In means a nine-character identifier Investigation, J. Edgar Hoover F.B.I. addition to telephone access, toll-free assigned by the FBI to an agency that Building, 935 Pennsylvania Avenue, electronic dial-up access to the NICS has met the established qualifying NW, Washington, D.C. 20535. will be provided to FFLs after the Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58309 beginning of the NICS operation. FFLs ATF and the POC will notify FFLs in (1) Confirm any matching records; with electronic dial-up access will be the POC’s state of the means by which and able to contact the NICS 24 hours each FFLs can contact the POC. The NICS (2) Notify the FFL that the transfer day, excluding scheduled and will provide POCs with electronic may proceed, is delayed pending further unscheduled downtime. access to the system virtually 24 hours record analysis, or is denied. ‘‘Proceed’’ (c)(1) The FBI NICS Operations each day through the NCIC notifications made within three Center, upon receiving an FFL communication network. Upon business days will be accompanied by telephone or electronic dial-up request receiving a request for a background the NTN or STN traceable to the NTN. for a background check, will: check from an FFL, a POC will: The POC may or may not provide a (i) Verify the FFL Number and code (1) Verify the eligibility of the FFL transaction number (NTN or STN) when word; either by verification of the FFL number notifying the FFL of a ‘‘Denied’’ (ii) Assign a NICS Transaction or an alternative POC-verification response. Number (NTN) to a valid inquiry and system; (h) In cases where a transfer is denied provide the NTN to the FFL; (2) Enter a purpose code indicating by a POC, the POC should provide a (iii) Search the relevant databases that the query of the system is for the denial notification to the NICS. This (i.e., NICS Index, NCIC, III) for any purpose of performing a NICS denial notification will include the matching records; and background check in connection with name of the person who was denied a (iv) Provide the following NICS the transfer of a firearm; and (3) firearm and the NTN. The information responses based upon the consolidated Transmit the request for a background provided in the denial notification will NICS search results to the FFL that check via the NCIC interface to the be maintained in the NICS Audit Log requested the background check: NICS. (A) ‘‘Proceed’’ response, if no described in § 25.9(b). This notification disqualifying information was found in (e) Upon receiving a request for a may be provided immediately by the NICS Index, NCIC, or III. NICS background check, POCs may also electronic message to the NICS (i.e., at (B) ‘‘Delayed’’ response, if the NICS conduct a search of available files in the time the transfer is denied) or as search finds a record that requires more state and local law enforcement and soon thereafter as possible. If a denial research to determine whether the other relevant record systems, and may notification is not provided by a POC, prospective transferee is disqualified provide a unique State-Assigned the NICS will assume that the transfer from possessing a firearm by Federal or Transaction Number (STN) to a valid was allowed and will destroy its records state law. A ‘‘Delayed’’ response to the inquiry for a background check. regarding the transfer in accordance FFL indicates that the firearm transfer (f) When the NICS receives an inquiry with the procedures detailed in § 25.9. should not proceed pending receipt of a from a POC, it will search the relevant (i) Response recording. FFLs are follow-up ‘‘Proceed’’ response from the databases (i.e., NICS Index, NCIC, III) for required to record the system response, NICS or the expiration of three business any matching record(s) and will provide whether provided by the FBI NICS days (exclusive of the day on which the an electronic response to the POC. This Operations Center or a POC, on the query is made), whichever occurs first. response will consolidate the search appropriate ATF form for audit and (Example: An FFL requests a NICS results of the relevant databases and inspection purposes, under 27 CFR part check on a prospective firearm will include the NTN. The following 178 recordkeeping requirements. The transferee at 9:00 a.m. on Friday and types of responses may be provided by FBI NICS Operations Center response shortly thereafter receives a ‘‘Delayed’’ the NICS to a state or local agency will always include an NTN and response from the NICS. If state offices conducting a background check: associated ‘‘Proceed,’’ ‘‘Delayed,’’ or in the state in which the FFL is located (1) No record response, if the NICS ‘‘Denied’’ determination. POC responses are closed on Saturday and Sunday and determines, through a complete search, may vary as discussed in paragraph (g) open the following Monday, Tuesday, that no matching record exists. of this section. In these instances, FFLs and Wednesday, and the NICS has not (2) Partial response, if the NICS has will record the POC response, including yet responded with a ‘‘Proceed’’ or not completed the search of all of its any transaction number and/or ‘‘Denied’’ response, the FFL may records. This response will indicate the determination. transfer the firearm at 12:01 a.m. databases that have been searched (i.e., (j) Access to the NICS Index for Thursday.) III, NCIC, and/or NICS Index) and the purposes unrelated to NICS background (C) ‘‘Denied’’ response, when at least databases that have not been searched. checks required by the Brady Act. one matching record is found in either It will also provide any potentially Access to the NICS Index for purposes the NICS Index, NCIC, or III that disqualifying information found in any unrelated to NICS background checks provides information demonstrating that of the databases searched. A follow-up pursuant to 18 U.S.C. 922(t) shall be receipt of a firearm by the prospective response will be sent as soon as all the limited to uses for the purpose of: transferee would violate 18 U.S.C. 922 relevant databases have been searched. (1) Providing information to Federal, or state law. The ‘‘Denied’’ response The follow-up response will provide the state, or local criminal justice agencies will be provided to the requesting FFL complete search results. in connection with the issuance of a by the NICS Operations Center during (3) Single matching record response, firearm-related or explosives-related its regular business hours. if all records in the relevant databases permit or license, including permits or (2) None of the responses provided to have been searched and one matching licenses to possess, acquire, or transfer the FFL under paragraph (c)(1) of this record was found. a firearm, or to carry a concealed section will contain any of the (4) Multiple matching record firearm, or to import, manufacture, deal underlying information in the records response, if all records in the relevant in, or purchase explosives; or checked by the system. databases have been searched and more (2) Responding to an inquiry from the (d) Access to the NICS through POCs. than one matching record was found. ATF in connection with a civil or In states where a POC is designated to (g) Generally, based on the response(s) criminal law enforcement activity process background checks for the provided by the NICS, and other relating to the Gun Control Act (18 NICS, FFLs will contact the POC to information available in the state and U.S.C. Chapter 44) or the National initiate a NICS background check. Both local record systems, a POC will: Firearms Act (26 U.S.C. Chapter 53). 58310 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

§ 25.7 Querying records in the system. thoroughly under the authority and and code word, the type of sale, and the (a) The following search descriptors supervision of a state Control Terminal name, sex, race, date of birth, and state will be required in all queries of the Agency. This authority and supervision of residence of the prospective buyer; system for purposes of a background may be delegated to responsible and check: criminal justice agency personnel in the (3) The NICS will verify the FFL (1) Name; case of a satellite computer center being Number and code word before (2) Sex; serviced through a state Control processing the request. (3) Race; Terminal Agency. This screening will (g) The following precautions will be (4) Complete date of birth; and also apply to non-criminal justice taken to help ensure the security and (5) State of residence. maintenance or technical personnel. privacy of NICS information when FFLs (b) A unique numeric identifier may (3) All visitors to these computer contact the NICS Operations Center: also be provided to search for additional centers must be accompanied by staff (1) Access will be restricted to the records based on exact matches by the personnel at all times. initiation of a NICS background check numeric identifier. Examples of unique (4) POCs utilizing a state/NCIC in connection with the proposed numeric identifiers for purposes of this terminal to access the NICS must have transfer of a firearm. system are: Social Security number (to the proper computer instructions comply with Privacy Act requirements, (2) The NICS Representative will only written and other built-in controls to provide a response of ‘‘Proceed’’ or a Social Security number will not be prevent data from being accessible to required by the NICS to perform any ‘‘Delayed’’ (with regard to the any terminals other than authorized prospective firearms transfer), and will background check) and miscellaneous terminals. identifying numbers (e.g., military not provide the details of any record (5) Each state Control Terminal information about the transferee. In number or number assigned by Federal, Agency shall build its data system state, or local authorities to an cases where potentially disqualifying around a central computer, through information is found in response to an individual’s record). Additional which each inquiry must pass for identifiers that may be requested by the FFL query, the NICS Representative will screening and verification. provide a ‘‘Delayed’’ response to the system after an initial query include (d) Authorized state agency remote FFL. Follow-up ‘‘Proceed’’ or ‘‘Denied’’ height, weight, eye and hair color, and terminal devices operated by POCs and responses will be provided by the NICS place of birth. At the option of the having access to the NICS must meet the Operations Center during its regular querying agency, these additional following requirements: identifiers may also be included in the (1) POCs and data sources having business hours. initial query of the system. terminals with access to the NICS must (3) The FBI will periodically monitor physically place these terminals in telephone inquiries to ensure proper use § 25.8 System safeguards. secure locations within the authorized of the system. (a) Information maintained in the agency; (h) All transactions and messages sent NICS Index is stored electronically for (2) The agencies having terminals and received through electronic access use in an FBI computer environment. with access to the NICS must screen by POCs and FFLs will be automatically The NICS central computer will reside terminal operators and must restrict logged in the NICS Audit Log described inside a locked room within a secure access to the terminals to a minimum in § 25.9(b). Information in the NICS facility. Access to the facility will be number of authorized employees; and Audit Log will include initiation and restricted to authorized personnel who (3) Copies of NICS data obtained from termination messages, failed have identified themselves and their terminal devices must be afforded authentications, and matching records need for access to a system security appropriate security to prevent any located by each search transaction. officer. unauthorized access or use. (i) The FBI will monitor and enforce (b) Access to data stored in the NICS (e) FFL remote terminal devices may compliance by NICS users with the is restricted to duly authorized agencies. be used to transmit queries to the NICS applicable system security requirements The security measures listed in via electronic dial-up access. The outlined in the NICS POC Guidelines paragraphs (c) through (f) of this section following procedures will apply to such and the NICS FFL Manual (available are the minimum to be adopted by all queries: from the NICS Operations Center, POCs and data sources having access to (1) The NICS will incorporate a Federal Bureau of Investigation, 1000 the NICS. security authentication mechanism that Custer Hollow Road, Clarksburg, West (c) State or local law enforcement performs FFL dial-up user Virginia 26306–0147). agency computer centers designated by authentication before network access a Control Terminal Agency as POCs takes place; § 25.9 Retention and destruction of records in the system. shall be authorized NCIC users and shall (2) The proper use of dial-up circuits observe all procedures set forth in the by FFLs will be included as part of the (a) The NICS will retain NICS Index NCIC Security Policy of 1992 when periodic audits by the FBI; and records that indicate that receipt of a processing NICS background checks. (3) All failed authentications will be firearm by the individuals to whom the The responsibilities of the Control logged by the NICS and provided to the records pertain would violate Federal or Terminal Agencies and the computer NICS security administrator. state law. The NICS will retain such centers include the following: (f) FFLs may use the telephone to records indefinitely, unless they are (1) The criminal justice agency transmit queries to the NICS, in canceled by the originating agency. In computer site must have adequate accordance with the following cases where a firearms disability is not physical security to protect against any procedures: permanent, e.g., a disqualifying unauthorized personnel gaining access (1) FFLs may contact the NICS restraining order, the NICS will to the computer equipment or to any of Operations Center during its regular automatically purge the pertinent record the stored data. business hours by a telephone number when it is no longer disqualifying. (2) Since personnel at these computer provided by the FBI; Unless otherwise removed, records centers can have access to data stored in (2) FFLs will provide the NICS contained in the NCIC and III files that the NICS, they must be screened Representative with their FFL Number are accessed during a background check Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58311 will remain in those files in accordance (d) The following records of state and record correction with the originating with established policy. local law enforcement units serving as agency (assuming the originating agency (b) The FBI will maintain an POCs will be subject to the Brady Act’s has not already notified the denying automated NICS Audit Log of all requirements for destruction: agency of the correction) and take all incoming and outgoing transactions that (1) All inquiry and response messages necessary steps to correct the record in pass through the system. (regardless of media) relating to the the NICS. (1) The Audit Log will record the initiation and result of a check of the (d) As an alternative to the above following information: type of NICS that allows a transfer that are not procedure where a POC was the denying transaction (inquiry or response), line part of a record system created and agency, the individual may elect to number, time, date of inquiry, header, maintained pursuant to independent direct his or her challenge to the message key, ORI, and inquiry/response state law regarding firearms accuracy of the record, in writing, to the data (including the name and other transactions; and FBI, NICS Operations Center, Criminal identifying information about the (2) All other records relating to the Justice Information Services Division, prospective transferee and the NTN). In person or the transfer created as a result 1000 Custer Hollow Road, Module C–3, cases of allowed transfers, all of a NICS check that are not part of a Clarksburg, West Virginia 26306–0147. information in the Audit Log related to record system created and maintained Upon receipt of the information, the FBI the person or the transfer, other than the pursuant to independent state law will investigate the matter by contacting NTN assigned to the transfer and the regarding firearms transactions. the POC that denied the transaction or date the number was assigned, will be the data source. The FBI will request the destroyed after not more than six § 25.10 Correction of erroneous system information. POC or the data source to verify that the months after the transfer is allowed. record in question pertains to the Audit Log records relating to denials (a) An individual may request the reason for the denial from the agency individual who was denied, or to verify will be retained for 10 years, after which or correct the challenged record. The time they will be transferred to a that conducted the check of the NICS (the ‘‘denying agency,’’ which will be FBI will consider the information it Federal Records Center for storage. The receives from the individual and the NICS will not be used to establish any either the FBI or the state or local law response it receives from the POC or the system for the registration of firearms, enforcement agency serving as a POC). data source. If the record is corrected as firearm owners, or firearm transactions The FFL will provide to the denied a result of the challenge, the FBI shall or dispositions, except with respect to individual the name and address of the so notify the individual, correct the persons prohibited from receiving a denying agency and the unique erroneous information in the NICS, and firearm by 18 U.S.C. 922 (g) or (n) or by transaction number (NTN or STN) give notice of the error to any Federal state law. associated with the NICS background (2) The Audit Log will be used to check. The request for the reason for the department or agency or any state that analyze system performance, assist denial must be made in writing to the was the source of such erroneous users in resolving operational problems, denying agency. (POCs at their records. support the appeals process, or support discretion may waive the requirement (e) Upon receipt of notice of the audits of the use of the system. Searches for a written request.) correction of a contested record from the may be conducted on the Audit Log by (b) The denying agency will respond originating agency, the FBI or the time frame, i.e., by day or month, or by to the individual with the reasons for agency that contributed the record shall a particular state or agency. Information the denial within five business days of correct the data in the NICS and the in the Audit Log pertaining to allowed its receipt of the individual’s request. denying agency shall provide a written transfers may only be used by the FBI The response should indicate whether confirmation of the correction of the for the purpose of conducting audits of additional information or documents are erroneous data to the individual for the use and performance of the NICS. required to support an appeal, such as presentation to the FFL. If the appeal of Such information, however, may be fingerprints in appeals involving a contested record is successful and retained and used as long as needed to questions of identity (i.e., a claim that thirty (30) days or less have transpired pursue cases of identified misuse of the the record in question does not pertain since the initial check, and there are no system. The NICS, including the NICS to the individual who was denied). other disqualifying records upon which Audit Log, may not be used by any (c) If the individual wishes to the denial was based, the NICS will department, agency, officer, or challenge the accuracy of the record communicate a ‘‘Proceed’’ response to employee of the United States to upon which the denial is based, or if the the FFL. If the appeal is successful and establish any system for the registration individual wishes to assert that his or more than thirty (30) days have of firearms, firearm owners, or firearm her rights to possess a firearm have been transpired since the initial check, the transactions or dispositions. The Audit restored, he or she may make FFL must recheck the NICS before Log will be monitored and reviewed on application first to the denying agency, allowing the sale to continue. In cases a regular basis to detect any possible i.e., either the FBI or the POC. If the where multiple disqualifying records misuse of the NICS data. denying agency is unable to resolve the are the basis for the denial, the (c) The following records in the FBI- appeal, the denying agency will so individual must pursue a correction for operated terminals of the NICS will be notify the individual and shall provide each record. subject to the Brady Act’s requirements the name and address of the agency that (f) An individual may also contest the for destruction: originated the document containing the accuracy or validity of a disqualifying (1) All inquiry and response messages information upon which the denial was record by bringing an action against the (regardless of media) relating to a based. The individual may then apply state or political subdivision responsible background check that results in an for correction of the record directly to for providing the contested information, allowed transfer; and the agency from which it originated. If or responsible for denying the transfer, (2) All information (regardless of the record is corrected as a result of the or against the United States, as the case media) contained in the NICS Audit Log appeal to the originating agency, the may be, for an order directing that the relating to a background check that individual may so notify the denying contested information be corrected or results in an allowed transfer. agency, which will, in turn, verify the that the firearm transfer be approved. 58312 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

§ 25.11 Prohibited activities and penalties. information contact: Marc S. Horowitz, Executive Order 12866 by OIRA and has (a) State or local agencies, FFLs, or telephone 301–402–5666 (not a toll-free been deemed not significant. number). individuals violating this subpart A Regulatory Flexibility Act shall be subject to a fine not to exceed SUPPLEMENTARY INFORMATION: The NIH $10,000 and subject to cancellation of Revitalization Act of 1993 (Pub. L. 103– The Regulatory Flexibility Act NICS inquiry privileges. 43) was enacted June 10, 1993, adding requires that regulatory actions be (b) Misuse or unauthorized access section 487E of the Public Health analyzed to determine whether they includes, but is not limited to, the Service (PHS) Act, 42 U.S.C. 288–5. create a significant impact on a following: Section 487E authorizes the Secretary to substantial number of small entities. I (1) State or local agencies’, FFLs’, or carry out a program of entering into certify that this final rule will not have individuals’ purposefully furnishing contracts with appropriately qualified any such impact. incorrect information to the system to health professionals from disadvantaged Paperwork Reduction Act obtain a ‘‘Proceed’’ response, thereby backgrounds with substantial allowing a firearm transfer; educational loan debt relative to This final rule does not contain any (2) State or local agencies’, FFLs’, or income. Under such contracts, qualified information collection requirements individuals’ purposefully using the health professionals agree to conduct which are subject to Office of system to perform a check for clinical research as NIH employees for Management and Budget (OMB) unauthorized purposes; and a minimum of two years, in approval under the Paperwork (3) Any unauthorized person’s consideration of the Federal Reduction Act of 1995 (44 U.S.C. accessing the NICS. Government agreeing to repay a Chapter 35). The application forms used maximum of $20,000 annually of the by the NIH Clinical Research Loan Dated: October 27, 1998. Repayment Program for Individuals Janet Reno, principal and the interest of the educational loans of such health from Disadvantaged Backgrounds have Attorney General. professionals. This program is known as been reviewed and approved by OMB [FR Doc. 98–29109 Filed 10–29–98; 8:45 am] the NIH Clinical Research Loan under OMB No. 0925–0361 (expires BILLING CODE 4410±06±P Repayment Program for Individuals September 30, 1998). from Disadvantaged Backgrounds. The Catalog of Federal Domestic Assistance NIH is amending title 42 of the Code of DEPARTMENT OF HEALTH AND Federal Regulations by adding a new The Catalog of Federal Domestic HUMAN SERVICES part 68a to govern the administration of Assistance numbered program affected this loan repayment program. by the proposed regulation is: Public Health Service The regulations specify the scope and 93.220—NIH Clinical Research Loan purpose of the program, who is eligible Repayment Program for Individuals 42 CFR Part 68a to apply, how individuals apply to from Disadvantaged Backgrounds RIN 0925±AA09 participate in the program, how List of Subjects in 42 CFR Part 68a participants are selected, and the terms Health—clinical research, medical National Institutes of Health Clinical and conditions of the program. research; Loan programs—health. Research Loan Repayment Program The NIH announced its plans to issue for Individuals from Disadvantaged the regulations in a notice of proposed Dated: September 18, 1998. Backgrounds rulemaking (NPRM) published in the Harold Varmus, Federal Register, February 10, 1997 (62 Director, National Institutes of Health. AGENCY: National Institutes of Health, FR 5953). The NPRM provided for a 60- HHS. For the reasons presented in the day comment period. The NIH received preamble, title 42 of the Code of Federal ACTION: Final rule. no comments. Consequently, the final Regulations is amended by adding a SUMMARY: The National Institutes of regulations are the same as those new part 68a to read as set forth below. Health (NIH) is issuing regulations to originally proposed in February 1997, PART 68aÐNATIONAL INSTITUTES OF implement provisions of the Public except for an editorial change reflecting HEALTH (NIH) CLINICAL RESEARCH Health Service Act authorizing the NIH the NIH Medical Board’s change of LOAN REPAYMENT PROGRAM FOR Clinical Research Loan Repayment name to the ‘‘Medical Executive INDIVIDUALS FROM DISADVANTAGED Program for Individuals from Committee.’’ The following is provided as public BACKGROUNDS (CR±LRP) Disadvantaged Backgrounds. The information. purpose of the program is the Sec. recruitment and retention of highly Executive Order 12866 68a.1 What is the scope and purpose of the qualified health professionals, who are Executive Order 12866 requires that NIH Clinical Research Loan Repayment from disadvantaged backgrounds, to Program for Individuals from all regulatory actions reflect Disadvantaged Backgrounds (CR–LRP)? conduct clinical research as employees consideration of the costs and benefits of the NIH by providing repayment of 68a.2 Definitions. they generate, and that they meet certain 68a.3 Who is eligible to apply? qualified educational loans. standards, such as avoiding the 68a.4 Who is eligible to participate? EFFECTIVE DATE: This final rule is imposition of unnecessary burdens on 68a.5 Who is ineligible to participate? effective on November 30, 1998. the affected public. If a regulatory action 68a.6 How do individuals apply to FOR FURTHER INFORMATION CONTACT: Jerry is deemed to fall within the scope of the participate in the CR–LRP? Moore, NIH Regulations Officer, Office definition of the term ‘‘significant 68a.7 How are applicants selected to of Management Assessment, 6011 regulatory action’’ contained in section participate in the CR–LRP? 68a.8 What does the CR–LRP provide to Executive Blvd., Suite 601, MSC 7669, 3(f) of the Order, pre-publication review participants? Rockville, MD 20852; telephone 301– by the Office of Management and 68a.9 What loans qualify for repayment? 496–4607 (not a toll-free number); Fax Budget’s Office of Information and 68a.10 What does an individual have to do 301–402–0169; or E-mail Regulatory Affairs (OIRA) is necessary. in return for loan repayments received ([email protected]). For program This final rule has been reviewed under under the CR–LRP? Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58313

68a.11 How does an individual receive loan chairs, and appointed by the Director, family size published by the U.S. repayments beyond the initial two-year NIH. Bureau of the Census, adjusted annually contract? Clinical Research Loan Repayment for changes in the Consumer Price 68a.12 What will happen if an individual Program (CR–LRP or Program) means Index, and adjusted by the Secretary for does not comply with the terms and the NIH Clinical Research Loan conditions of participation in the CR– use in all health professions programs. LRP? Repayment Program for Individuals The Secretary periodically publishes 68a.13 Under what circumstances can the from Disadvantaged Backgrounds these income levels in the Federal service or payment obligation be authorized by section 487E of the Act, Register. canceled, waived, or suspended? as amended. Institute, Center, or Agency (ICA) 68a.14 When can a CR–LRP payment Clinical Research Loan Repayment means an institute, center, or agency of obligation be discharged in bankruptcy? Program (CR–LRP or Program) contract the National Institutes of Health. 68a.15 Additional conditions. refers to the agreement, which is signed Living expenses means the reasonable 68a.16 What other regulations and statutes by an applicant and the Secretary, apply? cost of room and board, transportation wherein the applicant from a and commuting costs, and other Authority: 42 U.S.C. 288–5. disadvantaged background agrees to reasonable costs incurred during an § 68a.1 What is the scope and purpose of engage in clinical research as an individual’s attendance at an the NIH Clinical Research Loan Repayment employee of the NIH and the Secretary educational institution. Program for Individuals from agrees to repay qualified educational Participant means an individual Disadvantaged Backgrounds (CR±LRP)? loans for a prescribed period as whose application to the CR–LRP has This part applies to the award of specified in this part. been approved and whose Program educational loan payments under the Clinical researcher means an NIH contract has been executed by the NIH Clinical Research Loan Repayment employee with clinical privileges who is Secretary. Program for Individuals from conducting approved clinical research. Program means the NIH Clinical Disadvantaged Backgrounds (CR–LRP) Commercial loans means loans made Research Loan Repayment Program for authorized by section 487E of the Public by banks, credit unions, savings and Individuals from Disadvantaged Health Service Act (42 U.S.C. 288–5). loan associations, not-for-profit Backgrounds. The purpose of this program is to recruit organizations, insurance companies, Program eligibility date means the and retain appropriately qualified schools, and other financial or credit date on which an individual’s Program health professionals, who are from institutions which are subject to contract is executed by the Secretary disadvantaged backgrounds and have examination and supervision in their and that individual is engaged in substantial educational debt relative to capacity as lending institutions by an approved clinical research as an income, to conduct clinical research as agency of the United States or of the employee of the NIH. NIH employees. State in which the lender has its Qualified educational loans and principal place of business. interest/debt include Government and § 68a.2 Definitions. Current payment status means that a commercial educational loans and As used in this part: qualified educational loan is not past interest for: Act means the Public Health Service due in its payment schedule as (1) Undergraduate, graduate, and Act, as amended (42 U.S.C. 201 et seq.). determined by the lending institution. Applicant means an individual who Debt threshold refers to the minimum health professional school tuition applies to, and meets the eligibility amount of qualified educational debt an expenses; criteria for the CR–LRP. individual must have, on his/her (2) Other reasonable educational Approved clinical research means program eligibility date, in order to be expenses required by the school(s) clinical research approved by the eligible for Program benefits and, for attended, including fees, books, Clinical Research Loan Repayment purposes of eligibility under this part, supplies, educational equipment and Committee. debt threshold means that the qualified materials, and laboratory expenses; and Clinical privileges means the educational debt must equal or exceed (3) reasonable living expenses, delineation of privileges for patient care 20 percent of an individual’s annual including the cost of room and board, granted to qualified health professionals NIH salary on his/her program transportation and commuting costs, by the NIH Medical Executive eligibility date. and other reasonable living expenses Committee or other appropriate Educational expenses means the cost incurred. credentialing board. of the health professional’s education, Reasonable educational and living Clinical research means activities including the tuition expenses and other expenses means those educational and which qualify for inclusion as clinical educational expenses such as fees, living expenses which are equal to or research in the CR–LRP as determined books, supplies, educational equipment less than the sum of the school’s by the Clinical Research Loan and materials, and laboratory expenses. estimated standard student budget for Repayment Committee. Government loans means loans made educational and living expenses for the Clinical Research Loan Repayment by Federal, State, county, or city degree program and for the year(s) Committee (CR–LRC) means the agencies which are authorized by law to during which the participant was scientific board assembled to review, make such loans. enrolled in school. If there is no rank, and approve or disapprove Individual from disadvantaged standard budget available from the Clinical Research Loan Repayment background means an individual who: school or if the participant requests Program applications. The CR–LRC is (1) Comes from an environment that repayment for educational and living composed of NIH scientific staff and co- inhibited the individual from obtaining expenses which exceed the standard chaired by the Associate Director for the knowledge, skill and ability required student budget, reasonableness of Clinical Research, NIH, and the to enroll in and graduate from a health educational and living expenses Associate Director for Research on professions school; or incurred must be substantiated by Minority Health, NIH. Members are (2) Comes from a family with an additional contemporaneous nominated by the Deputy Director, annual income below a level based on documentation, as determined by the Intramural Research, NIH, and the co- low-income thresholds according to Secretary. 58314 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

Repayable debt means the portion, as § 68a.5 Who is ineligible to participate? (b) Under § 68a.8(a), the Secretary will established by the Secretary, of an The following individuals are make payments in the discharge of debt individual’s total qualified educational ineligible for CR–LRP participation: to the extent appropriated funds are debt relative to the NIH salary, which (a) Persons who are not eligible available for these purposes. can be paid by the CR–LRP. applicants as specified under section § 68a.9 What loans qualify for repayment? Specifically, qualifying educational debt 68a.3; amounts in excess of 50 percent of the (b) Persons who owe an obligation of (a) The CR–LRP will repay debt threshold will be considered for health professional service to the participants’ lenders the principal, repayment. Federal Government, a State, or other interest, and related expenses of Salary means base pay plus quarters, entity, unless a deferral is granted for qualified Government and commercial subsistence, and variable housing the length of his/her service obligation educational loans obtained by allowances, if applicable. under the CR–LRP. The following are participants for the following: School means undergraduate, examples of programs which have a (1) Undergraduate, graduate, and graduate, and health professions schools service obligation: Physicians Shortage health professional school tuition which are accredited by a body or Area Scholarship Program, National expenses; bodies recognized for accreditation Research Service Award Program, (2) Other reasonable educational purposes by the Secretary of Education. Public Health Service Scholarship, expenses required by the school(s) Secretary means the Secretary of National Health Service Corps attended, including fees, books, Health and Human Services and any Scholarship Program, Armed Forces supplies, educational equipment and other officer or employee of the (Army, Navy, or Air Force) Professions materials, and laboratory expenses; and Department of Health and Human Scholarship Program, Indian Health (3) Reasonable living expenses, Services to whom the authority Service Scholarship Program, and the including the cost of room and board, involved has been delegated. NIH AIDS Research Loan Repayment transportation and commuting costs, Service means the Public Health Program. and other living expenses as determined Service. (c) Persons who are not NIH by the Secretary. State means one of the fifty States, the employees, such as Intramural Research (b) The following educational loans District of Columbia, the Training Award (IRTA) recipients, are ineligible for repayment under the Commonwealth of Puerto Rico, the Visiting Fellows, National Research CR–LRP: Northern Mariana Islands, the U.S. Service Award (NRSA) recipients, Guest (1) Loans obtained from other than a Virgin Islands, Guam, American Samoa, Researchers or Special Volunteers, NIH- government entity or commercial and the Trust Territory of the Pacific National Research Council (NRC) lending institution; Islands (the Federated States of Biotechnology Research Associates (2) Loans for which contemporaneous Micronesia, the Republic of the Program participants, and documentation is not available; Marshall Islands, and the Republic of Intergovernmental Personnel Act (IPA) (3) Loans or portions of loans Palau). participants; or obtained for educational or living Withdrawal means a request by a (d) Persons who do not have clinical expenses which exceed the standard of participant, prior to the Program making privileges. reasonableness as determined by the payments on his or her behalf, for participant’s standard school budget for withdrawal from Program participation. § 68a.6 How do individuals apply to the year in which the loan was made, participate in the CR±LRP? A withdrawal is without penalty to the and are not determined by the Secretary participant and without obligation to An application for participation in the to be reasonable based on additional the Program. CR–LRP shall be submitted to the NIH documentation provided by the office which is responsible for the § 68a.3 Who is eligible to apply? individual; Program’s administration, in such form To be eligible to apply to the CR–LRP, (4) Loans, financial debts, or service and manner as the Secretary may obligations incurred under the following an individual must be a citizen, prescribe. national, or permanent resident of the programs: Physicians Shortage Area United States; hold a M.D., Ph.D., D.O., § 68a.7 How are applicants selected to Scholarship Program (Federal or State), D.D.S., D.M.D., A.D.N./B.S.N., or participate in the CR±LRP? National Research Service Award equivalent degree; have, on his/her To be selected for participation in the Program, Public Health and National program eligibility date, qualified CR–LRP, applicants must satisfy the Health Service Corps Scholarship educational debt equal to or in excess of following requirements: Training Program, National Health the debt threshold; and be an individual (a) Applicants must meet the Service Corps Scholarship Program, from a disadvantaged background. eligibility requirements specified in Armed Forces (Army, Navy, or Air § 68a.3 and § 68a.4. Force) Health Professions Scholarship § 68a.4 Who is eligible to participate? (b) Applicants must not be ineligible Program, Indian Health Service To be eligible to participate in the for participation as specified in § 68a.5. Program, and similar programs, upon CR–LRP, an applicant must have the (c) Applicants must be selected for determination by the Secretary, which recommendation of the employing ICA approval by the CR–LRC, based upon a provide loans, scholarships, loan Scientific Program Director, the review of their applications. repayments, or other awards in concurrence of the employing ICA exchange for a future service obligation; Director, and the approval of the CR– § 68a.8 What does the CR±LRP provide to (5) Any loan in default or not in a LRC. Since participation in the Program participants? current payment status; is contingent, in part, upon employment (a) Loan repayments: For each year of (6) Loan amounts which participants with NIH, a Program contract may not service the individual agrees to serve, have paid or were due to have paid be awarded to an applicant until an with a minimum of 2 years of obligated prior to the program eligibility date; and employment commitment has been service, the Secretary may pay up to (7) Loans for which promissory notes made by the employing ICA Personnel $20,000 per year of a participant’s have been signed after the program Department. repayable debt. eligibility date. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58315

§ 68a.10 What does an individual have to a determination is made that the health information and documentation as may do in return for loan repayments received professional’s skills may be better be required, will consider: under the CR±LRP? utilized in a non-clinical research (1) The participant’s present financial Individuals must agree to be engaged assignment. Under these circumstances, resources and obligations; in approved clinical research, as the following will apply: employees of the NIH, for a minimum (i) Program participation and benefits (2) The participant’s estimated future initial period of two consecutive years. will cease as of the date an individual financial resources and obligations; and § 68a.11 How does an individual receive is no longer engaged in approved (3) The extent to which the loan repayments beyond the initial two-year clinical research; and participant has problems of a personal contract? (ii) Normally, job changes of this nature, such as a physical or mental An individual may apply for and the nature will not be considered a breach disability or terminal illness in the Secretary may grant extension contracts of contract on the part of either the NIH immediate family, which so intrude on for one-year periods, if there is or the participant. Based on the the participant’s present and future sufficient debt remaining to be repaid recommendation of the ICA Director ability to perform as to raise a and the individual is engaged in and concurrence of the Secretary, the presumption that the individual will be approved clinical research as an NIH participant will be released from the unable to perform the obligation employee. remainder of his or her service incurred. obligation without assessment of § 68a.12 What will happen if an individual monetary penalties. The participant in § 68a.14 When can a CR±LRP payment does not comply with the terms and this case will be permitted to retain all obligation be discharged in bankruptcy? conditions of participation in the CR±LRP? Program benefits made or owed by NIH Any payment obligation incurred (a) Absent withdrawal (see § 68a.2) or on his/her behalf up to the date the termination under paragraph (d) of this individual is no longer engaged in under § 68a.12 may be discharged in section, any participant who fails to approved clinical research, except the bankruptcy under Title 11 of the United complete the minimum two-year service pro rata amount of any benefits States Code only if such discharge is obligation required under the Program advanced beyond the period of granted after the expiration of the five- contract will be considered to have completed service. year period beginning on the first date breached the contract and will be that payment is required and only if the subject to assessment of monetary § 68a.13 Under what circumstances can bankruptcy court finds that a damages and penalties as follows: the service or payment obligation be nondischarge of the obligation would be (1) Participants who leave during the canceled, waived, or suspended? unconscionable. first year of the initial contract are liable (a) Any obligation of a participant for for amounts already paid by the NIH on service or payment to the Federal § 68a.15 Additional conditions. behalf of the participant plus an amount Government under this part will be When a shortage of funds exists, equal to $1,000 multiplied by the canceled upon the death of the participants may be funded partially, as number of months of the original service participant. determined by the Secretary. However, (b) The Secretary may waive or obligation. once a CR–LRP contract has been signed suspend any service or payment (2) Participants who leave during the by both parties, the Secretary will obligation incurred by the participant second year of the contract are liable for obligate such funds as necessary to upon request whenever compliance by amounts already paid by the NIH on ensure that sufficient funds will be behalf of the participant plus $1,000 for the participant: (1) Is impossible, available to pay benefits for the duration each unserved month. of the period of obligated service unless, (b) Payments of any amount owed (2) Would involve extreme hardship by mutual written agreement between under paragraph (a) of this section shall to the participant, or the Secretary and the applicant, be made within one year of the (3) If enforcement of the service or specified otherwise. Benefits will be participant’s breach (or such longer payment obligation would be against period as determined by the Secretary). equity and good conscience. paid on a quarterly basis after each (c) Participants who sign a (4) The Secretary may approve a service period unless specified continuation contract for any year request for a suspension of the service otherwise by mutual written agreement beyond the initial two-year period and or payment obligations for a period of 1 between the Secretary and the fail to complete the one-year period year. A renewal of this suspension may applicant. The Secretary may impose specified are liable for the pro rata also be granted. additional conditions as deemed amount of any benefits advanced (c) Compliance by a participant with necessary. beyond the period of completed service. a service or payment obligation will be considered impossible if the Secretary § 68a.16 What other regulations and (d) Terminations will not be statutes apply? considered a breach of contract in cases determines, on the basis of such where such terminations are beyond the information and documentation as may Several other regulations and statutes control of the participant as follows: be required, that the participant suffers apply to this part. These include, but are (1) Terminations for cause or for from a physical or mental disability not necessarily limited to: convenience of the Government will not resulting in the permanent inability of Debt Collection Act of 1982, Pub. L. 97– be considered a breach of contract and the participant to perform the service or 365 (5 U.S.C. 5514); other activities which would be monetary damages will not be assessed. Fair Credit Reporting Act (15 U.S.C. 1681 (2) Occasionally, a participant’s necessary to comply with the obligation. et seq.); research assignment may evolve and (d) In determining whether to waive Federal Debt Collection Procedures Act of change to the extent that the individual or suspend any or all of the service or 1990, Pub. L. 101–647 (28 U.S.C. 1); and is no longer engaged in approved payment obligations of a participant as Privacy Act of 1974 (5 U.S.C. 552a). clinical research. Similarly, the research imposing an undue hardship and being needs and priorities of the ICA and/or against equity and good conscience, the [FR Doc. 98–29130 Filed 10–29–98; 8:45 am] the NIH may change to the extent that Secretary, on the basis of such BILLING CODE 4140±01±P 58316 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

FEDERAL EMERGENCY modified base flood elevation Regulatory Flexibility Act MANAGEMENT AGENCY determinations are available for The Associate Director for Mitigation inspection. 44 CFR Part 65 The modifications are made pursuant certifies that this rule is exempt from to Section 206 of the Flood Disaster the requirements of the Regulatory Changes in Flood Elevation Protection Act of 1973, 42 U.S.C. 4105, Flexibility Act because modified base Determinations and are in accordance with the National flood elevations are required by the Flood Insurance Act of 1968, 42 U.S.C. Flood Disaster Protection Act of 1973, AGENCY: Federal Emergency 42 U.S.C. 4105, and are required to Management Agency (FEMA). 4001 et seq., and with 44 CFR part 65. For rating purposes, the currently maintain community eligibility in the ACTION: Final rule. effective community number is shown NFIP. No regulatory flexibility analysis has been prepared. SUMMARY: Modified base (1% annual and must be used for all new policies chance) flood elevations are finalized and renewals. Regulatory Classification for the communities listed below. These The modified base flood elevations modified elevations will be used to are the basis for the floodplain This final rule is not a significant calculate flood insurance premium rates management measures that the regulatory action under the criteria of for new buildings and their contents. community is required to either adopt Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory EFFECTIVE DATES: The effective dates for or to show evidence of being already in Planning and Review, 58 FR 51735. these modified base flood elevations are effect in order to qualify or to remain indicated on the following table and qualified for participation in the Executive Order 12612, Federalism revise the Flood Insurance Rate Map(s) National Flood Insurance Program in effect for each listed community prior (NFIP). This rule involves no policies that to this date. These modified elevations, together have federalism implications under with the floodplain management criteria Executive Order 12612, Federalism, ADDRESSES: The modified base flood required by 44 CFR 60.3, are the dated October 26, 1987. elevations for each community are minimum that are required. They available for inspection at the office of Executive Order 12778, Civil Justice should not be construed to mean that the Chief Executive Officer of each Reform the community must change any community. The respective addresses existing ordinances that are more This rule meets the applicable are listed in the following table. stringent in their floodplain standards of Section 2(b)(2) of Executive FOR FURTHER INFORMATION CONTACT: management requirements. The Order 12778. Matthew B. Miller, P.E., Chief, Hazards community may at any time enact List of Subjects in 44 CFR Part 65 Study Branch, Mitigation Directorate, stricter requirements of its own, or 500 C Street SW., Washington, DC pursuant to policies established by other Flood insurance, Floodplains, 20472, (202) 646–3461. Federal, State, or regional entities. Reporting and recordkeeping SUPPLEMENTARY INFORMATION: The These modified elevations are used to requirements. Federal Emergency Management Agency meet the floodplain management Accordingly, 44 CFR Part 65 is makes the final determinations listed requirements of the NFIP and are also amended to read as follows: below of the final determinations of used to calculate the appropriate flood modified base flood elevations for each insurance premium rates for new PART 65Ð[AMENDED] community listed. These modified buildings built after these elevations are elevations have been published in made final, and for the contents in these 1. The authority citation for Part 65 newspapers of local circulation and buildings. continues to read as follows: ninety (90) days have elapsed since that The changes in base flood elevations Authority: 42 U.S.C. 4001 et seq.; publication. The Associate Director has are in accordance with 44 CFR 65.4. Reorganization Plan No. 3 of 1978, 3 CFR, resolved any appeals resulting from this 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, notification. National Environmental Policy Act 3 CFR, 1979 Comp., p. 376. The modified base flood elevations This rule is categorically excluded are not listed for each community in from the requirements of 44 CFR Part § 65.4 [Amended] this notice. However, this rule includes 10, Environmental Consideration. No 2. The tables published under the the address of the Chief Executive environmental impact assessment has authority of § 65.4 are amended as Officer of the community where the been prepared. follows:

Date and name of news- State and county Location paper where notice was Chief executive officer of community Effective date of Community published modification number

Arizona: Maricopa Unincorporated June 11, 1998 June 18, The Honorable Don Stapley Chair- May 15, 1998 ...... 040037 (FEMA Docket Areas. 1998 Arizona Republic. person, Maricopa County Board of No. 7252). Supervisors 301 West Jefferson, 10th Floor Phoenix, Arizona 85003. Arizona: Maricopa Unincorporated July 24, 1998 July 31, The Honorable Janice K. Brewer June 30, 1998 ...... 040037 (FEMA Docket Areas. 1998 Scottsdale Chairman, Maricopa County Board No. 7252). Progress-Tribune. of Supervisors 301 West Jefferson, 10th Floor Phoenix, Arizona 85003. Arizona: Maricopa Town of Paradise June 11, 1998 June 18, The Honorable Marian Davis Mayor, May 15, 1998 ...... 040049 (FEMA Docket Valley. 1998 Arizona Republic. Town of Paradise Valley 6401 East No. 7252). Lincoln Drive Paradise Valley, Ari- zona 85253. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58317

Date and name of news- State and county Location paper where notice was Chief executive officer of community Effective date of Community published modification number

Arizona: Maricopa City of Phoenix .... June 11, 1998 June 18, The Honorable Skip Rimsza Mayor, May 15, 1998 ...... 040051 (FEMA Docket 1998 Arizona Republic. City of Phoenix 200 West Washing- No. 7252). ton Street, 11th Floor Phoenix, Ari- zona 85003. Arizona: Pima Unincorporated July 2, 1998 July 9, 1998 The Honorable Mike Boyd Chairman, May 27, 1998 ...... 040073 (FEMA Docket Areas. Arizona Daily Star. Pima County Board of Supervisors No. 7252). 130 West Congress, Fifth Floor Tucson, Arizona 85701. Arizona: Maricopa City of Scottsdale June 11, 1998 June 18, The Honorable Sam Kathryn May 15, 1998 ...... 045012 (FEMA Docket 1998 Arizona Republic. Campana Mayor, City of Scottsdale No. 7252). P.O. Box 1000 Scottsdale, Arizona 85252±1000. Arizona: Maricopa City of Scottsdale July 2, 1998 July 9, 1998 The Honorable Sam Kathryn June 2, 1998 ...... 045012 (FEMA Docket Scottdale Progress-Trib- Campana Mayor, City of Scottsdale No. 7252). une. P.O. Box 1000 Scottsdale, Arizona 85252±1000. Arizona: Maricopa City of Scottsdale July 24, 1998 July 31, The Honorable Sam Kathryn June 30, 1998 ...... 045012 (FEMA Docket 1998 Scottsdale Campana Mayor, City of Scottsdale No. 7252). Progress-Tribune. 3939 Civic Center Boulevard Scottsdale, Arizona 85252±1000. Arizona: Maricopa City of Tempe ...... June 11, 1998 June 18, The Honorable Neil Giuliano Mayor, May 15, 1998 ...... 040054 (FEMA Docket 1998 Arizona Republic. City of Tempe P.O. Box 5002 No. 7252). Tempe, Arizona 85280. California: River- Agua Caliente June 18, 1998 June 25, The Honorable Richard M. Milanovich May 22, 1998 ...... 060763 side (FEMA Band of Cahuilla 1998 Desert Sun. Chairman, Tribal Council Agua Docket No. Indians Tribe. Caliente Band of Cahuilla Indians 7252). 600 East Tahquitz Canyon Way Palm Springs, California 92262. California: River- City of Cathedral June 18, 1998 June 25, The Honorable David W. Berry May 22, 1998 ...... 060704 side (FEMA City. 1998 The Press-Enter- Mayor, City of Cathedral City P.O. Docket No. prise. Box 5001 Cathedral City, California 7252). 92235±5001. California: Contra City of Danville ..... June 18, 1998 June 25, The Honorable Dick Waldo Mayor, May 20, 1998 ...... 060707 Costa (FEMA 1998 San Ramone Val- City of Danville 510 La Gonda Way Docket No. ley Times. Danville, California 94526. 7252). California: Solano City of Dixon ...... June 10, 1998 June 17, The Honorable Don Erickson Mayor, May 11, 1998 ...... 060369 (FEMA Docket 1998 Dixon Tribune. City of Dixon 600 East ``A'' Street No. 7252). Dixon, California 95620±3697. California: River- City of Palm June 18, 1998 June 25, The Honorable Lloyd Maryanov May 22, 1998 ...... 060257 side (FEMA Springs. 1998 Desert Sun. Mayor City of Palm Springs P.O. Docket No. Box 2743 Palm Springs, California 7252). 92263. California: San Unincorporated June 9, 1998 June 16, The Honorable Greg Cox Chairman, May 13, 1998 ...... 060284 Diego (FEMA Areas. 1998 San Diego Daily San Diego County Board of Super- Docket No. Transcript. visors 1600 Pacific Highway, Room 7252). 335 San Diego, California 92101. Colorado: Jefferson City of West- July 23, 1998 July 30, The Honorable Nancy M. Heil Mayor, June 22, 1998 ...... 080008 (FEMA Docket minster. 1998 Westminster Win- City of Westminster 4800 West No. 7252). dow. 92nd Avenue Westminster, Colo- rado 80030. Iowa: Polk (FEMA City of Ankeny ..... July 15, 1998 July 22, The Honorable Merle Johnson Mayor, October 20, 1998 190226 Docket No. 1998 The Des Moines City of Ankeny 1605 North Ankeny 7252). Register. Boulevard, Suite 200 Ankeny, Iowa 50021. Missouri: St. Louis Unincorporated June 11, 1998 June 18, The Honorable Buzz Westfall St. September 16, 290327 (FEMA Docket Areas. 1998 St. Louis Post- Louis County Executive 41 South 1998. No. 7252). Dispatch. Central Executive Clayton, Missouri 63105. Montana: Yellow- City of Billings ...... July 9, 1998 July 16, 1998 The Honorable Charles F. Tooley June 9, 1998 ...... 300085 stone (FEMA Billings Gazette. Mayor, City of Billings P.O. Box Docket No. 1178 Billings, Montana 59103± 7252). 1178. New Mexico: City of July 24, 1998 July 31, The Honorable Martin J. Chavez June 18, 1998 ...... 350002 Bernalillo (FEMA Albuquerque. 1998 Albuquerque Jour- Mayor, City of Albuquerque P.O. Docket No. nal. Box 1293 Albuquerque, New Mex- 7252). ico 87103±1293. New Mexico: Unincorporated July 3, 1998 July 10, 1998 The Honorable Tom Rutherford June 3, 1998 ...... 50001 Bernalillo (FEMA Areas. Albuquerque Journal. Chairman, Bernalillo County Board Docket No. of Commissioners 2400 Broadway 7252). Southeast Albuquerque, New Mex- ico 87102. 58318 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

Date and name of news- State and county Location paper where notice was Chief executive officer of community Effective date of Community published modification number

New Mexico: Unincorporated July 24, 1998 July 31, The Honorable Tom Rutherford June 18, 1998 ...... 350001 Bernalillo (FEMA Areas. 1998 Albuquerque Jour- Chairman, Bernalillo County Board Docket No. nal. of Commissioners 2400 Broadway 7252). Southeast Albuquerque, New Mex- ico 87102. Nevada: Clark Unincorporated June 18, 1998 June 25, The Honorable Yvonne Atkinson May 20, 1998 ...... 320003 (FEMA Docket Areas. 1998 Las Vegas Re- Gates Chairperson, Clark County No. 7252). view-Journal. Board of Commissioners 500 Grand Central Parkway Las Vegas, Nevada 89155. Oklahoma: Tulsa City of Broken July 23, 1998 July 30, The Honorable James Reynolds June 12, 1998 ...... 400236 (FEMA Docket Arrow. 1998 Broken Arrow Mayor, City of Broken Arrow P.O. No. 7252). Ledger. Box 610 Broken Arrow, Oklahoma 74013. Oregon: Washing- City of Hillsboro ... July 16, 1998 July 23, The Honorable Gordon Faber Mayor, June 10, 1998 ...... 410243 ton (FEMA Dock- 1998 Hillsboro Argus. City of Hillsboro 123 West Main et No. 7252). Street Hillsboror, Oregon 97123± 39999. Texas: Collin City of Allen ...... June 17, 1998 June 24, The Honorable Steve Terrell Mayor, May 13, 1998 ...... 480131 (FEMA Docket 1998 The Allen Amer- City of Allen One Butler Circle No. 7252). ican. Allen, Texas 75013. Texas: Travis City of Austin ...... June 19, 1998 June 26, The Honorable Kirk A. Watson May 8, 1998 ...... 480624 (FEMA Docket 1998 Austin American Mayor, City of Austin 124 West No. 7252). Statesman. Eighth Street Austin, Texas 78701. Texas: Johnson City of Burleson ... July 8, 1998 July 15, 1998 The Honorable Rick Roper Mayor, October 13, 1998 485459 (FEMA Docket Burleson Star. City of Burleson 141 West Renfro No. 7252). Burleson, Texas 76028. Texas: Williamson City of Cedar Park July 8, 1998 July 15, 1998 The Honorable Dorothy Duckett June 11, 1998 ...... 481282 (FEMA Docket Hill Country News. Mayor, City of Cedar Park 600 No. 7252). North Bell Boulevard Cedar Park, Texas 78613. Texas: Collin City of Dallas ...... July 17, 1998 July 24, The Honorable Ron Kirk Mayor, City October 22, 1998 480171 (FEMA Docket 1998 The Dallas Morn- of Dallas 1500 Marilla Street, Suite No. 7252). ing News. 5EN Dallas, Texas 75201. Texas: Denton Town of Flower July 22, 1998 July 29, The Honorable Larry W. Lipscomb June 9, 1998 ...... 480777 (FEMA Docket Mound. 1998 Denton Record- Mayor, Town of Flower Mound No. 7252). Chronicle. 2121 Cross Timbers Drive Flower Mound, Texas 75028. Texas: Fort Bend Unincorporated June 17, 1998 June 24, The Honorable Michael D. Rozell Fort May 8, 1998 ...... 480228 (FEMA Docket Areas. 1998 Fort Bend Star. Bend County Judge 301 Jackson No. 7252). Street, Suite 719 Richmond, Texas 77469. Texas: Tarrant City of Fort Worth June 12, 1998 June 19, The Honorable Kenneth Barr Mayor, May 6, 1998 ...... 480596 (FEMA Docket 1998 Fort Worth Star- City of Fort Worth City Hall 1000 No. 7252). Telegram. Throckmorton Street Fort Worth, Texas 76102±6311. Texas: Webb City of Laredo ...... July 2, 1998 July 9, 1998 The Honorable Saul N. Ramirez, Jr. May 26, 1998 ...... 480651 (FEMA Docket Laredo Morning News. Mayor, City of Laredo P.O. Box No. 7252). 579 Laredo, Texas 78042±0579. Texas: Gregg and City of Longview .. June 19, 1998 June 26, The Honorable David McWhorter May 7, 1998 ...... 480264 Harrison (FEMA 1998 Longview News- Mayor, City of Longview P.O. Box Docket No. Journal. 1952 Longview, Texas 75606±1952. 7252). Texas: Collin City of Plano ...... June 24, 1998 July 1, The Honorable John Longstreet May 29, 1998 ...... 480140 (FEMA Docket 1998 Plano Star Courier. Mayor, City of Plano P.O. Box No. 7252). 860358 Plano, Texas 75086±0358. Texas: Collin City of Plano ...... July 22, 1998 July 29, The Honorable John Longstreet June 22, 1998 ...... 480140 (FEMA Docket 1998 Plano Star Courier. Mayor, City of Plano P.O. Box No. 7252). 860358 Plano, Texas 75086±0358. Texas: Fort Bend City of Sugar Land June 17, 1998 June 24, The Honorable Dean Hrbacek Mayor, May 8, 1998 ...... 480234 (FEMA Docket 1998 Fort Bend Star. City of Sugar Land P.O. Box 110 No. 7252). Sugar Land, Texas 77487±0110. Texas: Denton City of The Colony June 19, 1998 June 26, The Honorable Mary B. Watts Mayor, May 19, 1998 ...... 481581 (FEMA Docket 1998 The Leader. City of The Colony City Hall 5151 No. 7252). North Colony Boulevard The Col- ony, Texas 75056. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58319

(Catalog of Federal Domestic Assistance No. Study Branch, Mitigation Directorate, environmental impact assessment has 83.100, ‘‘Flood Insurance.’’) 500 C Street SW., Washington, DC been prepared. Dated: October 26, 1998. 20472, (202) 646–3461. Regulatory Flexibility Act Michael J. Armstrong, SUPPLEMENTARY INFORMATION: The Associate Director for Mitigation. modified base flood elevations are not The Associate Director for Mitigation [FR Doc. 98–29135 Filed 10–29–98; 8:45 am] listed for each community in this certifies that this rule is exempt from BILLING CODE 6718±04±P interim rule. However, the address of the requirements of the Regulatory the Chief Executive Officer of the Flexibility Act because modified base community where the modified base flood elevations are required by the FEDERAL EMERGENCY flood elevation determinations are Flood Disaster Protection Act of 1973, MANAGEMENT AGENCY available for inspection is provided. 42 U.S.C. 4105, and are required to Any request for reconsideration must maintain community eligibility in the 44 CFR Part 65 be based upon knowledge of changed NFIP. No regulatory flexibility analysis [Docket No. FEMA±7260] conditions, or upon new scientific or has been prepared. technical data. Regulatory Classification Changes in Flood Elevation The modifications are made pursuant Determinations to Section 201 of the Flood Disaster This interim rule is not a significant Protection Act of 1973, 42 U.S.C. 4105, regulatory action under the criteria of AGENCY: Federal Emergency and are in accordance with the National Section 3(f) of Executive Order 12866 of Management Agency (FEMA). Flood Insurance Act of 1968, 42 U.S.C. September 30, 1993, Regulatory ACTION: Interim rule. 4001 et seq., and with 44 CFR Part 65. Planning and Review, 58 FR 51735. For rating purposes, the currently SUMMARY: This interim rule lists Executive Order 12612, Federalism communities where modification of the effective community number is shown base (1% annual chance) flood and must be used for all new policies This rule involves no policies that elevations is appropriate because of new and renewals. have federalism implications under scientific or technical data. New flood The modified base flood elevations Executive Order 12612, Federalism, insurance premium rates will be are the basis for the floodplain dated October 26, 1987. calculated from the modified base flood management measures that the community is required to either adopt Executive Order 12778, Civil Justice elevations for new buildings and their Reform contents. or to show evidence of being already in effect in order to qualify or to remain DATES: This rule meets the applicable These modified base flood qualified for participation in the elevations are currently in effect on the standards of Section 2(b)(2) of Executive National Flood Insurance Program Order 12778. dates listed in the table and revise the (NFIP). Flood Insurance Rate Map(s) in effect These modified elevations, together List of Subjects in 44 CFR Part 65 prior to this determination for each with the floodplain management criteria Flood insurance, Floodplains, listed community. required by 44 CFR 60.3, are the From the date of the second Reporting and recordkeeping minimum that are required. They publication of these changes in a requirements. should not be construed to mean that newspaper of local circulation, any Accordingly, 44 CFR Part 65 is the community must change any person has ninety (90) days in which to amended to read as follows: existing ordinances that are more request through the community that the stringent in their floodplain Associate Director for Mitigation PART 65Ð[AMENDED] management requirements. The reconsider the changes. The modified community may at any time enact 1. The authority citation for Part 65 elevations may be changed during the stricter requirements of its own, or continues to read as follows: 90-day period. pursuant to policies established by other Authority: 42 U.S.C. 4001 et seq.; ADDRESSES: The modified base flood Federal, State, or regional entities. Reorganization Plan No. 3 of 1978, 3 CFR, elevations for each community are The changes in base flood elevations 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, available for inspection at the office of are in accordance with 44 CFR 65.4. 3 CFR, 1979 Comp., p. 376. the Chief Executive Officer of each community. The respective addresses National Environmental Policy Act § 65.4 [Amended] are listed in the following table. This rule is categorically excluded 2. The tables published under the FOR FURTHER INFORMATION CONTACT: from the requirements of 44 CFR Part authority of § 65.4 are amended as Matthew B. Miller, P.E., Chief, Hazards 10, Environmental Consideration. No follows:

Date and name of news- State and county Location paper where notice was Chief executive officer of community Effective date of Community published modification number

Arizona: Maricopa Unincorporated October 23, 1998 ...... The Honorable Janice K. Brewer ...... September 23, 040037 Areas. October 30, 1998 ...... Chairman, Maricopa County Board of 1998. Arizona Republic ...... Supervisors. 301 Jefferson Street ...... Phoenix, Arizona 85003 ...... Arizona: Maricopa City of Phoenix .... October 23, 1998 ...... The Honorable Skip Rimsza ...... September 23, 040051 October 30, 1998 ...... Mayor, City of Phoenix ...... 1998. Arizona Republic ...... 200 West Washington Street, 11th Floor. Phoenix, Arizona 85003±1611 ...... 58320 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

Date and name of news- State and county Location paper where notice was Chief executive officer of community Effective date of Community published modification number

California: Los Unincorporated October 22, 1998 ...... The Honorable Yvonne Burke ...... September 18, 065043 Angeles. Areas. October 29, 1998 ...... Chairperson, Los Angeles County 1998. Daily Commerce ...... Board of Supervisors. 500 West Temple Street, Suite 821 ... Los Angeles, California 90012 ...... California: San City of San Diego September 23, 1998 ...... The Honorable Susan Golding ...... August 24, 1998 .. 060295 Diego. September 30, 1998 ...... Mayor, City of San Diego ...... San Diego Union-Tribune 202 C Street, 11th Floor ...... San Diego, California 92101 ...... Colorado: Jefferson City of Lakewood October 15, 1998 ...... The Honorable Linda Morton ...... September 24, 085075 October 22, 1998 ...... Mayor, City of Lakewood ...... 1998. Jefferson Sentinel ...... 445 South Allison Parkway ...... Lakewood, Colorado 80226±3105 ..... Iowa: Polk ...... City of Des October 16, 1998 ...... The Honorable Preston A. Daniels .... January 21, 1999 190227 Moines. October 23, 1998 ...... Mayor, City of Des Moines ...... Des Moines Register ...... 400 East First Street ...... Des Moines, Iowa 50309 ...... Iowa: Polk ...... City of West Des October 16, 1998 ...... The Honorable Gene Meyer ...... January 21, 1999 190231 Moines. October 23, 1998 ...... Mayor, City of West Des Moines ...... Western Express ...... P.O. Box 65320 ...... West Des Moines, Iowa 50265 ...... Iowa: Polk ...... City of Windsor October 16, 1998 ...... The Honorable Donald C. Steele ...... January 21, 1999 190687 Heights. October 23, 1998 ...... Mayor, City of Windsor Heights ...... Western Express ...... 1133 66th Street ...... Windsor Heights, Iowa 50311 ...... Kansas: Kingman .. City of Kingman ... September 25, 1998 ...... The Honorable Jack D. Ford ...... December 31, 200183 October 2, 1998 ...... Mayor, City of Kingman ...... 1998. Kingman Leader Courier .. P.O. Box 168 ...... Kingman, Kansas 67068 ...... Kansas: Johnson .. City of Lenexa ...... October 2, 1998 ...... The Honorable Joan Bowman ...... September 2, 200168 October 9, 1998 ...... Mayor, City of Lenexa ...... 1998. Olathe Daily News ...... City Hall ...... 12350 West 87th Street Parkway ...... Lenexa, Kansas 66215 ...... Kansas: Johnson .. City of Olathe ...... September 23, 1998 ...... The Honorable Larry L. Campbell ...... August 24, 1998 .. 200173 September 30, 1998 ...... Mayor, City of Olathe ...... Olathe Daily News ...... P.O. Box 768 ...... Olathe, Kansas 66051±0768 ...... Nebraska: Sarpy ... City of Papillion .... September 16, 1998 ...... The Honorable Pete Goodman ...... August 14, 1998 .. 315275 September 23, 1998 ...... Mayor, City of Papillion ...... The Papillion Times ...... City Hall ...... 122 East Third Street ...... Papillion, Nebraska 68046 ...... Nevada: Clark ...... Unincorporated September 23, 1998 ...... The Honorable Yvonne Atkinson August 28, 1998 .. 320003 Areas. September 30, 1998 ...... Gates. Las Vegas Review Chairperson, Clark County Board of Journal. Supervisors. 500 Grand Central Parkway ...... Las Vegas, Nevada 89155 ...... New Mexico: City of October 8, 1998 ...... The Honorable Jim Baca ...... September 11, 350002 Bernalillo. Albuquerque. October 15, 1998 ...... Mayor, City of Albuquerque ...... 1998. Albuquerque Journal ...... P.O. Box 1293 ...... Albuquerque, New Mexico 87103 ...... New Mexico: City of October 23, 1998 ...... The Honorable Jim Baca ...... September 18, 350002 Bernalillo. Albuquerque. October 30, 1998 ...... Mayor, City of Albuquerque ...... 1998. Albuquerque Journal ...... P.O. Box 1293 ...... Albuquerque, New Mexico 87103 ...... Texas: Bexar ...... City of Alamo October 8, 1998 ...... The Honorable Robert Biechlin ...... January 13, 1999 480036 Heights. October 15, 1998 ...... Mayor, City of Alamo Heights ...... North San Antonio Times 6116 Broadway ...... San Antonio, Texas 78209 ...... Texas: Brazos ...... City of Bryan ...... October 20, 1998 ...... The Honorable Lonnie Stabler ...... September 18, 480082 October 27, 1998 ...... Mayor, City of Bryan ...... 1998. Bryan-College Station P.O. Box 1000 ...... Eagle. Bryan, Texas 77805 ...... Texas: Denton and City of Carrollton .. September 11, 1998 ...... The Honorable Milburn Gravley ...... August 19, 1998 .. 480167 Dallas. September 18, 1998 ...... Mayor, City of Carrollton ...... Metrocrest News ...... P.O. Box 110535 ...... Carrollton, Texas 75011±0535 ...... Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58321

Date and name of news- State and county Location paper where notice was Chief executive officer of community Effective date of Community published modification number

Texas: Denton ...... City of Denton ...... September 23, 1998 ...... The Honorable Jack Miller ...... August 24, 1998 .. 480194 September 30, 1998 ...... Mayor, City of Denton ...... Denton Record Chronicle 215 East McKinney Street ...... Denton, Texas 76201 ...... Texas: Denton ...... Unincorporated September 11, 1998 ...... The Honorable Jeff Moseley ...... August 19, 1998 .. 480774 Areas. September 18, 1998 ...... Denton County Judge ...... Denton Record Chronicle Courthouse-on-the-Square ...... 110 West Hickory Street ...... Denton, Texas 76201 ...... Texas: Denton ...... City of Highland October 21, 1998 ...... The Honorable Austin Adams ...... September 21, 481105 Village. October 28, 1998 ...... Mayor, City of Highland Village ...... 1998. Lewisville News ...... City Hall ...... 1800 F.M. 407 ...... Highland Village, Texas 75077 ...... Texas: Denton ...... City of Lewisville .. September 11, 1998 ...... The Honorable Bobbie J. Mitchell ...... August 19, 1998 .. 480195 September 18, 1998 ...... Mayor, City of Lewisville ...... Lewisville News ...... P.O. Box 299022 ...... Lewisville, Texas 75029±9002 ...... Texas: Denton ...... City of Lewisville .. October 21, 1998 ...... The Honorable Bobbie J. Mitchell ...... September 21, 480195 October 28, 1998 ...... Mayor, City of Lewisville ...... 1998. Lewisville News ...... P.O. Box 299002 ...... Lewisville, Texas 75029±9002 ...... Washington: Grays City of Aberdeen .. October 16, 1998 ...... The Honorable Chuck Gurrad ...... September 3, 530058 Harbor. October 23, 1998 ...... Mayor, City of Aberdeen ...... 1998. The Daily World ...... 200 East Market Street ...... Aberdeen, Washington 98520 ...... Washington: King .. City of Bellevue .... October 16, 1998 ...... The Honorable Don Davidson ...... September 10, 530074 October 23, 1998 ...... Mayor, City of Bellevue ...... 1998. The Eastside Journal ...... P.O. Box 90012 ...... Bellevue, Washington 98009±9102 ... Washington: Grays City of Cosmopolis October 15, 1998 ...... The Honorable Jerry Raines ...... September 3, 530059 Harbor. October 22, 1998 ...... Mayor, City of Cosmopolis ...... 1998. Montesano Vidette ...... P.O. Box G ...... Cosmopolis, Washington 98537 ......

(Catalog of Federal Domestic Assistance No. National Flood Insurance Program individuals to appeal the proposed 83.100, ‘‘Flood Insurance.’’) (NFIP). determinations to or through the Dated: October 26, 1998. EFFECTIVE DATE: The date of issuance of community was provided for a period of Michael J. Armstrong, the Flood Insurance Rate Map (FIRM) ninety (90) days. The proposed base Associate Director for Mitigation. showing base flood elevations and flood elevations and proposed modified [FR Doc. 98–29136 Filed 10–29–98; 8:45 am] modified base flood elevations for each base flood elevations were also published in the Federal Register. BILLING CODE 6718±04±P community. This date may be obtained by contacting the office where the FIRM This final rule is issued in accordance is available for inspection as indicated with Section 110 of the Flood Disaster FEDERAL EMERGENCY in the table below. Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67. MANAGEMENT AGENCY ADDRESSES: The final base flood elevations for each community are FEMA has developed criteria for 44 CFR Part 67 available for inspection at the office of floodplain management in floodprone the Chief Executive Officer of each areas in accordance with 44 CFR Part Final Flood Elevation Determinations community. The respective addresses 60. Interested lessees and owners of real are listed in the table below. AGENCY: Federal Emergency property are encouraged to review the FOR FURTHER INFORMATION CONTACT: Management Agency (FEMA). proof Flood Insurance Study and FIRM Matthew B. Miller, P.E., Chief, Hazards available at the address cited below for ACTION: Final rule. Study Branch, Mitigation Directorate, each community. 500 C Street SW., Washington, DC The base flood elevations and SUMMARY: Base (1% annual chance) 20472, (202) 646–3461. modified base flood elevations are made flood elevations and modified base SUPPLEMENTARY INFORMATION: The final in the communities listed below. flood elevations are made final for the Federal Emergency Management Agency Elevations at selected locations in each communities listed below. The base makes final determinations listed below community are shown. flood elevations and modified base of base flood elevations and modified flood elevations are the basis for the base flood elevations for each National Environmental Policy Act floodplain management measures that community listed. The proposed base This rule is categorically excluded each community is required either to flood elevations and proposed modified from the requirements of 44 CFR Part adopt or to show evidence of being base flood elevations were published in 10, Environmental Consideration. No already in effect in order to qualify or newspapers of local circulation and an environmental impact assessment has remain qualified for participation in the opportunity for the community or been prepared. 58322 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

Regulatory Flexibility Act #Depth in #Depth in feet above feet above The Associate Director for Mitigation Source of flooding and location ground. Source of flooding and location ground. certifies that this rule is exempt from * Elevation * Elevation in feet in feet the requirements of the Regulatory (NGVD) (NGVD) Flexibility Act because final or modified base flood elevations are required by the ARIZONA At upstream side of Road 96 *81 At divergence from Dry Flood Disaster Protection Act of 1973, Yavapai County (Unincor- Slough ...... *88 42 U.S.C. 4104, and are required to porated Areas) (FEMA Unnamed Overflow Area South establish and maintain community Docket No. 7246) of County Road 31: eligibility in the NFIP. No regulatory Dry Creek: Approximately 1,300 feet flexibility analysis has been prepared. Approximately 1,500 feet downstream of County downstream of Sunset Hills Road 97 ...... *71 Regulatory Classification Drive ...... *4,025 At divergence from Dry Approximately 2,000 feet up- Slough ...... *85 This final rule is not a significant stream of Sunset Hills Willow Slough: regulatory action under the criteria of Drive ...... *4,058 Approximately 275 feet Section 3(f) of Executive Order 12866 of Maps are available for in- downstream of Southern September 30, 1993, Regulatory spection at the Yavapai Pacific Railroad ...... *47 County Flood Control District, Approximately 650 feet up- Planning and Review, 58 FR 51735. 255 East Gurley Street, Pres- stream of County Road 95 *92 Executive Order 12612, Federalism cott, Arizona. Willow Slough Left Overbank No. 1: This rule involves no policies that CALIFORNIA At convergence with Willow Slough Left Overbank No. have federalism implications under Yolo County (Unincorporated Executive Order 12612, Federalism, 2 ...... *83 Areas) (FEMA Docket No. At divergence from Willow dated October 26, 1987. 7242) Slough ...... *83 Dry Creek: Executive Order 12778, Civil Justice Willow Slough Left Overbank Approximately 1,900 feet No. 2: Reform downstream of private road At confluence with Willow (wooden bridge) ...... *121 Slough ...... *76 This rule meets the applicable Approximately 450 feet standards of Section 2(b)(2) of Executive At divergence from Willow downstream of private road Slough ...... *83 Order 12778. (wooden bridge) ...... *121 Approximately 650 feet up- Yolo County Airport Drainage List of Subjects in 44 CFR Part 67 stream of County Road 33 *175 Channel: At confluence with Unnamed Administrative practice and Maps are available for in- Tributary of Willow Slough *86 spection at the Yolo County procedure, Flood insurance, Reporting Approximately 7,750 feet up- Community Development stream of confluence with and recordkeeping requirements. Agency, 292 West Beamer Unnamed Tributary of Wil- Accordingly, 44 CFR Part 67 is Street, Woodland, California. low Slough ...... *88 amended to read as follows: ÐÐÐ Maps are available for in- Yolo County (Unincorporated spection at the Community PART 67Ð[AMENDED] Areas) (FEMA Docket No. Development Agency, 292 7242) West Beamer Street, Wood- 1. The authority citation for Part 67 South Fork Willow Slough: land, California. continues to read as follows: Approximately 1,350 feet downstream of Interstate COLORADO Authority: 42 U.S.C. 4001 et seq.; 505 ...... *141 Reorganization Plan No. 3 of 1978, 3 CFR, Approximately 1,500 feet up- Loveland (City), Larimer 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, stream of County Road 89 *152 County (FEMA Docket No. 3 CFR, 1979 Comp., p. 376. Approximately 1,650 feet up- 7250) stream of County Road 89 *152 Big Thompson River: § 67.11 [Amended] Cottonwood Slough: Approximately 3,800 feet Approximately 1,120 feet 2. The tables published under the downstream of U.S. High- downstream of Interstate way 287 ...... *4,922 authority of § 67.11 are amended as 505 ...... *141 Approximately 550 feet follows: Approximately 2,770 feet up- downstream of U.S. High- stream of Interstate 505 .... *147 way 287 ...... *4,926 # Dry Slough: Depth in Maps are available for in- feet above At confluence with Willow ground. Slough ...... *53 spection at Building and De- Source of flooding and location * Elevation Approximately 980 feet velopment Services, 500 in feet above County Road 95 ..... *93 East Third Street, Loveland, (NGVD) North Davis Drain: Colorado. At Southern Pacific Railroad *46 ÐÐÐ ALASKA At divergence from Dry Larimer County (Unincor- Slough ...... *85 Nenana (City), (Unorganized porated Areas) (FEMA Union School Slough: Docket No. 7246) Borough) (FEMA Docket At confluence with Willow No. 7254) Slough ...... *66 Coal Creek: Tanana River: Approximately 790 feet up- Approximately 3,000 feet Approximately 850 feet up- stream of County Road 95 *91 downstream of Fourth stream of Highway Bridge *355 Unnamed Tributary of Union Street ...... *5,166 Approximately 2,000 feet up- School Slough: Approximately 3,000 feet up- stream of Railway Bridge .. *357 At confluence with Union stream of Windsor Ditch .... *5,230 Maps are available for in- School Slough ...... *72 Maps are available for in- spection at the City of At divergence from Dry spection at the Engineering Nenana City Hall, 3 Market Slough ...... *78 Department, 218 West Moun- Street, Nenana, Alaska. Unnamed Tributary of Willow tain, Fort Collins, Colorado. Slough: Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58323

#Depth in #Depth in #Depth in feet above feet above feet above ground. ground. ground. Source of flooding and location * Elevation Source of flooding and location * Elevation Source of flooding and location * Elevation in feet in feet in feet (NGVD) (NGVD) (NGVD) LOUISIANA Approximately 200 feet Maps are available for in- downstream of Ash Street *967 spection at the Cameron Delhi (Town), Richland Parish Tributary 1: County Engineering Office, (FEMA Docket No. 7250) Approximately 150 feet 805 West Price Road, Bayou Macon: downstream of U.S. High- Brownsville, Texas. Approximately 1 mile down- way 82 ...... *975 stream of U.S. 80 ...... *77 Approximately 270 feet up- WYOMING Approximately 0.5 mile up- stream of Fifth Street ...... *997 stream of U.S. 80 ...... *77 Approximately 2,150 feet up- East Thermopolis (Town), Hot stream of Seventh Street .. *1,020 Springs County (FEMA Maps are available for in- Docket No. 7254) spection at 202 Broadway, Tributary 2: Delhi, Louisiana. Approximately 150 feet Bighorn River: downstream of Ash Street *971 At the northwesternmost cor- OKLAHOMA Approximately 1,100 feet up- porate boundary, approxi- stream of Ash Street ...... *995 mately 500 feet down- Osage County (Unincor- Tributary 3 Emergency Spill- stream of Broadway Street *4,320 porated Areas) (FEMA way: At the southwestern cor- Docket No. 7254) At confluence with Tributary porate boundary, approxi- Horsepin Creek: 3 ...... *965 mately 720 feet upstream Approximately 1,400 feet Approximately 900 feet of Broadway Street ...... *4,323 downstream of Southern downstream of Sixth Street *1,000 Maps are available for in- Pacific Railroad ...... *637 Tributary 3: spection at the Town of East Approximately 310 feet At confluence with Tributary Thermopolis Town Hall, 112 downstream of Southern 3 Emergency Spillway ...... *965 East Warren, Thermopolis, Pacific Railroad ...... *638 At Sixth Street ...... *1,000 Wyoming. Approximately 1,060 feet up- Approximately 1,200 feet up- stream of Southern Pacific stream of confluence with (Catalog of Federal Domestic Assistance No. Railroad ...... *643 Tributary 4 ...... *1,018 83.100, ‘‘Flood Insurance.’’) Maps are available for in- Tributary 4: Dated: October 26, 1998. spection at 628 Kinnekah, At confluence with Tributary Pawhuska, Oklahoma. 3 ...... *1,007 Michael J. Armstrong, Approximately 180 feet up- Associate Director for Mitigation. TEXAS stream of confluence with [FR Doc. 98–29133 Filed 10–29–98; 8:45 am] Tributary 3 ...... *1,008 Mount Pleasant (City), Titus BILLING CODE 6718±04±P County (FEMA Docket No. Maps are available for in- 7250) spection at the City of Muenster City Hall, 400 North Hart Creek Tributary: Main, Muenster, Texas. Approximately 1,300 feet DEPARTMENT OF TRANSPORTATION downstream of Alexander ÐÐÐ Road ...... *322 South Padre Island (Town), Research and Special Programs Approximately 130 feet up- Cameron County (FEMA Administration stream of State Highway Docket No. 7250) 49 ...... *359 Gulf of Mexico: 49 CFR Part 177 Approximately 290 feet Approximately 150 feet north- downstream of West Sixth east of intersection of Gulf [Docket No. RSPA±97±2905 (HM±166Y)] Street ...... *407 Street and Gulf Boulevard *12 Tributary 1: At confluence with Hart Approximately 500 feet north- RIN 2137±AC41 Creek Tributary ...... *330 east of intersection of Gulf Approximately 1,300 feet up- Street and Gulf Boulevard *16 Transportation of Hazardous Materials; Laguna Madre: stream of confluence with Miscellaneous Amendments; Hart Creek Tributary ...... *344 At intersection of Palm Street Tributary 2: at Laguna Boulevard ...... *8 Response to Petitions for At confluence with Hart Maps are available for in- Reconsideration Creek Tributary ...... *358 spection at the Town of Approximately 1,900 feet up- South Padre Island Building AGENCY: Research and Special Programs stream of Stark Street ...... *370 Department, 4405 Padre Administration (RSPA), DOT. Tributary 3: Boulevard, South Padre Is- At confluence with Hart land, Texas. ACTION: Final rule; response to petitions Creek Tributary ...... *377 ÐÐÐ for reconsideration. Approximately 1,620 feet up- stream of West First Street *384 Cameron County (Unincor- SUMMARY: porated Areas) (FEMA On July 10, 1998, RSPA Maps are available for in- Docket No. 7250) published a final rule under Docket spection at the City of Mount RSPA–97–2905 (HM–166Y) which Pleasant Public Works Facil- Gulf of Mexico: ity, 1412 North Washington, Approximately 850 feet south amended the HMR by incorporating Mount Pleasant, Texas. of Old Queen Isabella miscellaneous changes based on Causeway ...... *12 petitions for rulemaking and RSPA ÐÐÐ Approximately 600 feet north- Muenster (City), Cooke Coun- east of the northern cor- initiative. The intent of the final rule ty (FEMA Docket No. 7250) porate limits ...... *16 was to provide relief from certain Brushy Elm Creek: Laguna Madre: regulatory requirements and to update Approximately 400 feet Approximately 4,000 feet and clarify certain other requirements. downstream of Eddy Road *957 south of Old Queen Isa- Approximately 150 feet bella Causeway ...... *8 In this document, RSPA denies three downstream of U.S. High- Approximately 2,000 feet petitions for reconsideration to the July way 82 ...... *963 west of Padre Boulevard ... *8 10, 1998 final rule concerning the 58324 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations amendments relating to IM portable TCA stated in its comments to the DEPARTMENT OF TRANSPORTATION tanks. notice of proposed rulemaking under Research and Special Programs DATES: Effective October 30, 1998. Docket RSPA–97–2905 that compliance with the requirement in § 178.345– Administration FOR FURTHER INFORMATION CONTACT: Joan 11(b)(1)(iii) for the remote means to be McIntyre, Office of Hazardous Materials 49 CFR Part 199 Standards, (202) 366–8553, U.S. capable of thermal activation was not Department of Transportation, 400 possible. On September 2, 1998, RSPA [Docket RSPA±97±2995, Notice No. 6] representatives met with TCA Seventh Street, S.W., Washington, D.C. Control of Drug Use and Alcohol 20590. representatives and a representative from Fort Vale Engineering Limited, a Misuse in Natural Gas, Liquefied SUPPLEMENTARY INFORMATION: On July manufacturer of IM portable tank valves, Natural Gas, and Hazardous Liquid 10, 1998, RSPA published a final rule to obtain additional information on Pipeline Operations Alcohol Misuse under Docket RSPA–97–2905 (HM– Prevention Program TCA’s comment concerning compliance 166Y) (63 FR 37454) which amended the HMR by incorporating a number of with § 178.345–11(b)(1)(iii). These AGENCY: Research and Special Programs miscellaneous changes. The effective industry representatives stated that the Administration (RSPA), DOT. date of the final rule was October 1, fusible links for IM portable tanks were ACTION: Announcement of random drug 1998, but compliance with all the not available until recently and that testing rate. changes made in the rule was permitted time would be needed to field test and beginning August 25, 1998. install the devices on the tanks. SUMMARY: RSPA has received and evaluated the 1997 Management The third sentence in 49 CFR RSPA disagrees with the petitioners’ Information System (MIS) Data 177.834(h) reads: ‘‘Discharge of contents requests. Delaying the October 1, 1998 Collection forms for the drug testing of of any container, other than a cargo effective date would deny the relief pipeline industry personnel. The RSPA tank, must not be made prior to removal provided in the final rule, that is, the determined that the random positive from the motor vehicle.’’ The final rule ability to unload an IM portable tank drug testing rate for the pipeline contains a revision to relax § 177.834(h) while it remains on a motor vehicle. industry for the period of January 1, and to add a new paragraph (o) to RSPA understands that many IM 1997, through December 31, 1997, is 0.7 permit an IM portable tank to be portable tanks do not currently conform percent. Therefore, the minimum unloaded while remaining on a to the provisions in the final rule. random drug testing rate will be transport vehicle with the power unit However, this is not a basis for denying maintained at 25 percent of covered attached, if the tank meets the outlet relief to operators of IM portable tanks pipeline employees for the period of requirements in § 178.345–11 and is which now, or in the near future, will January 1, 1999, through December 31, attended during the unloading, as conform to the new provisions. Further, 1999. currently required for cargo tank motor RSPA does not believe there is any basis vehicles under § 177.834(i). Section DATES: Effective January 1, 1999 through for granting HMAC’s request for a one 178.345–11(b)(1)(iii) requires that the December 31, 1999. remote means of closure must be year deferral of enforcement of FOR FURTHER INFORMATION CONTACT: capable of thermal activation when § 177.834(h). RSPA believes that Catrina Pavlik, Drug/Alcohol Program required by part 173 for materials which unloading an IM portable tank in the Analyst, Research and Special Programs are flammable, pyrophoric, oxidizing, or same manner as a cargo tank, but Administration, Office of Pipeline poisonous liquids. This important safety without the same outlet requirements, Safety, Room 7128, 400 Seventh Street, feature provides for the valve to close in would pose increased safety risks in a SW, Washington, DC 20590. Telephone: a fire situation, without operator fire situation when an operator is not (202) 366–6199, Fax: (202) 366–4566, e- intervention. able to manually activate the closure. mail: [email protected]. After publication of the final rule, Accordingly, under authority of 49 Information is also available on the RSPA received three petitions for U.S.C. 5101–5127; 49 CFR 1.53, the Office Pipeline Safety’s internet home reconsideration addressing the revisions three petitions for reconsideration are pages at ‘OPS.dot.gov.’ to § 177.834. The three petitioners, the denied. SUPPLEMENTARY INFORMATION: In a final Tank Container Association (TCA), Issued in Washington, DC, on October 26, rule published on December 23, 1993 Merck & Co., Inc. and the Hazardous 1998, under the authority delegated in 49 (58 FR 68257), RSPA announced that it Materials Advisory Council (HMAC) CFR part 106. would require operators of gas, requested that RSPA reconsider the Alan I. Roberts, hazardous liquid and carbon dioxide October 1, 1998 mandatory compliance pipelines, and liquefied natural gas date. The petitioners contend that most Associate Administrator for Hazardous facilities, who are subject to 49 CFR Materials Safety, Research and Special existing IM portable tanks are not fitted parts 192, 193 and 195, to implement, Programs Administration. with a fusible link, as prescribed in maintain, and submit an annual report § 178.345–11, and that fitting the IM [FR Doc. 98–29178 Filed 10–29–98; 8:45 am] of their drug testing program data. portable tanks with the device by BILLING CODE 4910±60±P Operators with 51 or more covered October 1, 1998, is not feasible. All employees are required to submit this three petitioners stated that fusible links information on an annual basis. are not available from the IM portable Operators with 50 or fewer covered tank valve suppliers. The petitioners’ employees are required to maintain this request for an extension of the information, and RSPA randomly compliance date ranged from one year selected 100 operators in this category to five years. In addition, HMAC to submit their data. The drug testing requested that RSPA defer statistical data is essential for RSPA to implementation of § 177.834(o) and analyze its current approach to deterring enforcement of current § 177.834(h). and detecting illegal drug abuse in the Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58325 pipeline industry, and, as appropriate, the need for cooperation of other CITES 9.25 (Rev.) provides guidance to assist plan a more efficient and effective countries in controlling the Parties in determining individually approach. In 1997, RSPA lowered the international trade. whether a species would qualify for random drug testing rate to 25 percent. DATES: Effective Date: This rule is inclusion in Appendix III. Since the positive random testing rate effective on October 30, 1998. Appendix I includes species continues to be less than 1 percent Applicability Date: The change to the threatened with extinction that are or industry-wide, the RSPA announces in Appendix III listing for the Brazilian may be affected by international trade. accordance with § 199.11(c)(3), that the population of the species as set forth in Appendix II includes species that, minimum random drug testing rate will this rule entered into force on July 26, although not necessarily now threatened be maintained at 25 percent of covered 1998, under the terms of the with extinction, may become so unless pipeline employees for the period of Convention. the trade in specimens is strictly January 1, 1999, through December 31, ADDRESSES: Please send correspondence controlled. Appendix II also can include 1999. concerning the amendment announced species that must be subject to Submission of MIS reports are due to in this rule to Chief, Office of Scientific regulation in order that trade in other the Office of Pipeline Safety, Research Authority, ARLSQ 750; U.S. Fish and currently or potentially threatened and Special Programs Administration, Wildlife Service; Washington, DC species may be brought under effective DPS–23, Room 7128, 400 7th Street 20240; fax number 703–358–2276. control (e.g., because of difficulty in SW., Washington, DC 20590, not later Express and messenger deliveries distinguishing specimens of currently or potentially threatened species from than March 15 of each calendar year. should be addressed to Chief, Office of those of other traded species). Notice of statistical data will be Scientific Authority, Room 750; U.S. Resolution Conf. 9.24 provides criteria published in the future to report results Fish and Wildlife Service; 4401 North of each calendar year’s MIS Data and guidance to assist the Parties in Fairfax Drive; Arlington, Virginia 22203. determining together (usually at a Collection results. At that time, the The text of the Appendix III Conference of the Parties or COP) RSPA will also publish whether or not notification from the Convention’s whether a species would qualify for the random rate will be reduced or Secretariat is available on request, and inclusion in Appendix I or Appendix II. increased for the pipeline industry related materials are available for public Under CITES, only those species pursuant to § 199.11. inspection by appointment from 8:00 included in Appendix I are banned from Issued in Washington, DC on October 23, a.m. to 4:00 p.m. Monday through international trade for primarily 1998. Friday, at the above address in commercial purposes. Richard B. Felder, Arlington, Virginia. The present rule revises the list of Associate Administrator for Pipeline Safety. Please send certificate/permit CITES species that is reproduced in the [FR Doc. 98–29081 Filed 10–29–98; 8:45 am] questions or any applications U.S. Code of Federal Regulations (CFR) concerning this regulation to Chief, BILLING CODE 4910±60±M at 50 CFR 23.23(f). The current Office of Management Authority; U.S. information following COP10 (see Fish and Wildlife Service; 4401 North below) was published in the Federal Fairfax Drive, Room 700; Arlington, DEPARTMENT OF THE INTERIOR Register of August 22, 1997 (62 FR Virginia 22203; fax number 703–358– 44627). As advanced by the Government Fish and Wildlife Service 2281. Express and messenger deliveries of Brazil pursuant to Article XVI should be addressed to Chief, Office of paragraph 1 of the Convention, the 50 CFR Part 23 Management Authority, at that present rule acknowledges that now Arlington address. Brazil, Bolivia, and Costa Rica have RIN 1018±AE99 FOR FURTHER INFORMATION CONTACT: Dr. added Swietenia macrophylla (bigleaf Amendment by Brazil to Appendix III Susan Lieberman, Chief, Office of mahogany (also respectively called Listing of Bigleaf Mahogany Under the Scientific Authority, phone 703–358– mogno, mara, or caoba)) to Appendix III Convention on International Trade in 1708, fax 703–358–2276, E-mail in support of their domestic Endangered Species of Wild Fauna [email protected]; or the Office of conservation measures and need for and Flora Management Authority, telephone 800– cooperation of other Parties. Brazil in 358–2104, E-mail October 1965 at an inter-American AGENCY: Fish and Wildlife Service, [email protected]. conference had put this species in the Interior. SUPPLEMENTARY INFORMATION: Annex of the Convention on Nature ACTION: Final rule. Protection and Wildlife Preservation in Background the Western Hemisphere, and on April SUMMARY: This rule announces an The Convention on International 3, 1992 (by Decree No 37–N) had amendment to the Appendix III listing Trade in Endangered Species of Wild included the species with other of bigleaf mahogany (Swietenia Fauna and Flora (TIAS 8249) regulates Brazilian species considered to be at macrophylla) under the Convention on international trade in certain animal and risk. International Trade in Endangered plant species. The species for which The species continues to be included Species of Wild Fauna and Flora (CITES trade in particular specimens is in CITES Appendix III in the Americas or Convention). The species in the controlled are listed in one of three (i.e., South America, Central America, Americas and its logs, sawn wood, and appendices. Appendix III is comprised the Caribbean, and North America), veneer sheets have been included in of species that any Party country has including only its logs, sawn wood, and Appendix III since November 1995, informed the CITES Secretariat are veneer sheets as the parts or derivatives based on an action by the Government subject to regulation within its covered by the provisions of the of Costa Rica. The Government of Brazil jurisdiction for purposes of restricting or Convention. Thus, products such as has supplied information to the CITES preventing exploitation, and for which finished furniture are excluded. Secretariat to independently include the it needs the cooperation of other Parties Moreover, export of specimens from species in Appendix III to support its to control the specimens in plantations located outside the national legislation for the species and international trade. Resolution Conf. Americas is not regulated. (At COP10 in 58326 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

June 1997, the categories saw-logs, sawn The Convention’s Secretariat and U.S. unnecessary and contrary to the public wood, and veneers were revised slightly Office of Management Authority in 1995 interest (5 U.S.C. 553(b)). Because to the above for several such listings; cf. (and sometimes since) have inquired bigleaf mahogany in the Americas was 62 FR 44627.) regarding certificates of origin or added to Appendix III of the Convention The CITES Secretariat notified all permits that exporting range countries effective on November 16, 1995, and Party countries on April 27, 1998 (in an issue for shipments of the specimens of because of the other reasons stated unnumbered Notification), of this this species (i.e., logs, sawn wood, and herein, the Service finds that good cause addition to Appendix III by Brazil of veneer sheets). Responses have been exists for making this rule effective this species. In accordance with Article received from Mexico, Guatemala, upon its date of publication (5 U.S.C. XVI paragraph 2, such an amendment Belize, Honduras, Nicaragua, Venezuela, 553(d)). Accordingly, 50 CFR 23.23(f) is becomes effective 90 days after and Peru (cf. Secretariat’s April 27, amended at the conclusion of this notification, in this case on July 26, 1998, Notification No. 1998/15). Costa document. 1998. All the shipments of bigleaf Rica, Bolivia, and Brazil, as Parties At the tenth meeting of the mahogany originating from Brazil that listing the species in Appendix III, use Conference of the Parties to the are exported on or after that date must their regular documents (e.g., permits). Convention (COP10) in June 1997, the Importation or exportation of CITES- be accompanied by the appropriate United States was among 67 of 112 regulated plant specimens must be documentation as required by CITES Parties that voted to include this species through particular designated U.S. (usually an export permit), which is to in Appendix II; this 60 percent of the Department of Agriculture ports (50 CFR be presented upon import to the Party Parties in favor, however, fell short of 24.12), which includes additional ports countries. the two-thirds majority needed for designated for logs and lumber. For International trade in Appendix III adoption of the proposal (see the information on the types of documents species and their parts and derivatives Federal Register notice of August 22, required for such mahogany importation that are specified as being included 1997 (62 FR 44627)). After the vote, into the United States, as well as requires the issuance of either an export Brazil in plenary stated its intention to requests for any documents needed for permit, a certificate of origin, a re-export include the species in Appendix III. On certificate, or a pre-Convention such re-export or export from the United States, contact the Service’s Office of September 24, 1997, the Brazilian certificate, by the exporting or the re- Ambassador to the United States sent a exporting Party. An export permit, Management Authority (address and phone number above). letter to the U.S. Fish and Wildlife which signifies that the specimens were Service soliciting comments on their not obtained in contravention of the Any Party at any time may enter a contemplated listing of bigleaf laws of that country for conservation, is reservation on a species (or pertinent mahogany in Appendix III (cf. required if the shipment originates from population) added to Appendix III. A Resolution Conf. 9.25 (Rev.)). The the Party that added the species to Party that has entered a reservation is Service replied in a letter of October 10, Appendix III, in this case Brazil, as well treated as a country that is not party to 1997, to the Brazilian Ambassador in as Bolivia, which independently the Convention with respect to the trade Washington, D.C., providing U.S. included its population in Appendix III, in the species concerned (until such interagency-approved comments that effective March 19, 1998 (see Federal time as that Party withdraws its supported Brazil’s consideration of the Register of May 14, 1998, 63 FR 26739– reservation). The limited effects of a Appendix III listing, expressed hope for 26741); and Costa Rica, which had reservation in alleviating importers and a prompt conclusion of the earlier added the species to Appendix exporters from documentation consultations and listing, and offered III, effective November 16, 1995 (see requirements with the other CITES cooperation and partnership to help Federal Register of February 22, 1996, Parties were thoroughly discussed in a convey the meaning of the action (e.g., 61 FR 6793–6795). Federal Register notice on November to U.S. consumers). This Appendix III Export from the other countries in the 17, 1987 (52 FR 43924). In a subsequent listing thus can assist in curtailing Americas requires the issuance of either Federal Register notice of March 28, illegal international trade (see a certificate from the country of origin, 1988 (53 FR 9945; see also 53 FR 12497, a certificate from the country of re- April 14, 1988), the Service made a Resolution Conf. 9.25 (Rev.) first export, or a pre-Convention certificate procedural change in requesting paragraph b)), which may help prevent (from the country of export). (The comments about such reservations for severe decline so that the species does species is native from Bolivia and Brazil species added to Appendix III. Because not become endangered in the wild. to Mexico.) These documents legally the effects of such a reservation are The Service has not recommended verify either: (1) that the specimens limited, and there is also no time limit entering a reservation on the enhanced originated in a non-listing country; (2) for reserving on a species or a status in Appendix III for the Brazilian that they are being re-exported after a population added to Appendix III, a population of the species. Consideration legal importation in accordance with proposed rule is not published at the for doing so would be given if valid and CITES; or (3) that they were acquired time the list in § 23.23 is amended. compelling reasons are shown that before the provisions of the Convention Regardless of any U.S. decision to enter implementation of this listing would be applied to them. All the countries of a reservation, this particular amendment contrary to the interests or laws of the South America, Central America, and to Appendix III enters into force on July United States. The Service now solicits North America and some countries in 26, 1998, under terms of the comments on whether to enter a the Caribbean are Parties to the Convention. Publishing this rule reservation, and particularly seeks any Convention. Article X of CITES and informs the public of this international new information that becomes available. Resolution Conf. 9.5 specify the action while still affording those The Service will consider all comments requirements for comparable interested the opportunity and time to received, and if appropriate, will documentation from countries not party assess the merits of entering a consider recommending that the United to the treaty. The pre-Convention date reservation. Therefore, good cause exists States submit a reservation to the for Swietenia macrophylla (bigleaf to omit a proposed-rule notice and depositary government (which is mahogany) remains November 16, 1995. public-comment process, since it is Switzerland). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58327

Note and the Small Business Regulatory Regulation Promulgation Enforcement Fairness Act of 1966 do Accordingly, for the reasons set out The Department has determined that not apply to this notice. changes to the Convention Appendices, above in this document, the Service which result from actions of the Parties No new information collection is amends Part 23 of Title 50, chapter I, to the treaty, do not require preparation required as a result of this rulemaking subchapter B, of the Code of Federal of Environmental Assessments as action. For any permits or certificates Regulations as set forth below: defined under authority of the National required for re-export from the United States of this or any other CITES-listed PART 23ÐENDANGERED SPECIES Environmental Policy Act (42 U.S.C. CONVENTION 4321–4347). This document recognizes species, the Office of Management and Brazil’s decision to include one of their Budget has approved the collection of 1. The authority citation for Part 23 native species in CITES Appendix III information under 44 U.S.C. 3501 et seq. continues to read as follows: and serves as public notice of their and assigned clearance numbers 1018– Authority: Convention on International decision to potential importers and 0093 and 1018–0012. Trade in Endangered Species of Wild Fauna exporters, as well as other persons who This document was prepared by Dr. and Flora, 27 U.S.T. 1087; and Endangered may have a need to know of this Bruce MacBryde and Dr. Susan Species Act of 1973, as amended (16 U.S.C. Appendix III amendment. Because this Lieberman, Office of Scientific 1531 et seq.). amendment to 50 CFR 23.23 is simply Authority, under the authority of the 2. Section 23.23(f) is amended in the a notification to the public on an action Endangered Species Act of 1973, as table by revising the entry for Swietenia that has been taken by Brazil under the amended (16 U.S.C. 1531 et seq., 87 macrophylla under the plant family terms of CITES, this document does not Stat. 884, as amended). Meliaceae to read as follows: constitute a ‘‘rule’’ for purposes of the Administrative Procedure Act (5 U.S.C. List of Subjects in 50 CFR Part 23 § 23.23 Species listed in Appendices I, II, 551 (4)). Accordingly, the provisions of and III. Executive Order 12866, the Regulatory Endangered and threatened species, * * * * * Flexibility Act (5 U.S.C. 601 et seq.), Exports, Imports, Treaties. (f) * * *

First listing date Species Common name Appendix (month/day/ year)

******* PLANT KINGDOM. PLANTS.

******* Family Meliaceae Mahogany family

******* Swietenia macrophylla populations in the Americas (in- Bigleaf mahogany III (Bolivia, Brazil, Costa Rica) 11/16/95 cluding logs, sawn wood, and veneer sheets, but no other parts or derivatives, e.g., products).

*******

Dated: October 13, 1998. DEPARTMENT OF COMMERCE annual commercial quota for red Donald J. Barry, snapper was reached on October 15, Assistant Secretary for Fish and Wildlife and National Oceanic and Atmospheric 1998. This closure is necessary to Parks. Administration protect the red snapper resource. [FR Doc. 98–28927 Filed 10–29–98; 8:45 am] 50 CFR Part 622 DATES: Closure is effective 12:01 a.m., BILLING CODE 4310±55±P [I.D.102698A] local time, November 1, 1998, until noon, local time, February 1, 1999. Fisheries of the Caribbean, Gulf of FOR FURTHER INFORMATION CONTACT: Mexico, and South Atlantic; Reef Fish Robert Sadler, 727–570–5305. Fishery of the Gulf of Mexico; Closure of the Commercial Red Snapper SUPPLEMENTARY INFORMATION: The reef Component fish fishery of the Gulf of Mexico is managed under the Fishery AGENCY: National Marine Fisheries Management Plan for the Reef Fish Service (NMFS), National Oceanic and Resources of the Gulf of Mexico (FMP). Atmospheric Administration (NOAA), The FMP was prepared by the Gulf of Commerce. Mexico Fishery Management Council ACTION: Closure. and is implemented under the authority SUMMARY: NMFS closes the commercial of the Magnuson-Stevens Fishery fishery for red snapper in the exclusive Conservation and Management Act by economic zone (EEZ) of the Gulf of regulations at 50 CFR part 622. Those Mexico. NMFS has determined that the regulations set the commercial quota for 58328 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations red snapper in the Gulf of Mexico at Dated: October 26, 1998. published on July 28, 1998 (63 FR 4.65 million lb (2.11 million kg) for the Bruce C. Morehead, 40253). Details of this action are current fishing year, January 1 through Acting Director, Office of Sustainable described in the preamble to the December 31, 1998. Those regulations Fisheries, National Marine Fisheries Service. proposed rule and will not be repeated split the red snapper commercial fishing [FR Doc. 98–29090 Filed 10–27–98; 1:58 pm] here. season into two time periods, the first BILLING CODE 3510±22±F Approved Management Measures commencing at noon on February 1 with Under current regulations, required two-thirds of the annual quota (3.06 DEPARTMENT OF COMMERCE VTS units, hereinafter referred to as million lb (1.39 million kg)) available, VMS units, in the Atlantic sea scallop and the second commencing at noon on National Oceanic and Atmospheric fishery must be fully operational at all September 1 with the remainder of the Administration times and transmit a signal indicating a annual quota available. During the vessel’s accurate position at least every commercial season, the red snapper 50 CFR Part 648 hour, 24 hours a day, without commercial fishery opens at noon on [Docket No. 980715175±8254±02; I.D. interruption, throughout the year. A the first of each month and closes at 070198B] vessel out of the water for repair and noon on the 15th of each month, until maintenance may not have an the applicable commercial quotas are RIN 0648±AL35 operational power supply available with reached. Fisheries of the Northeastern United which to power its VMS unit so that it Under 50 CFR 622.43(a), NMFS is States; Vessel Monitoring System may transmit hourly position reports. required to close the commercial fishery Power Down Exemption This action amends the operating for a species or species group when the requirements for a VMS to allow vessels quota for that species or species group AGENCY: National Marine Fisheries in those fisheries to turn off the VMS is reached or is projected to be reached Service (NMFS), National Oceanic and unit if the vessel will be out of the water continuously for more than 72 hours. by publishing a notification to that Atmospheric Administration (NOAA), Commerce. Owners of such vessels must first obtain effect in the Federal Register. Based on ACTION: Final rule. a letter of exemption issued to the vessel current statistics, NMFS has determined from the Regional Administrator. This that the annual commercial quota of SUMMARY: NMFS issues this final rule to amendment is consistent with the 4.65 million lb (2.11 million kg) for red amend the regulations implementing the primary intent of the original snapper was reached on October 15, Atlantic Sea Scallop and Northeast requirement, which was to monitor the 1998. The commercial red snapper Multispecies Fishery Management Plans at-sea activity of these vessels for fishery was closed on October 15, 1998, (FMP). This action changes the name compliance with the regulatory at noon and was scheduled to reopen on ‘‘Vessel Tracking System (VTS)’’ to requirements. November 1, 1998. However, because ‘‘Vessel Monitoring System (VMS)’’ and In addition to the management NMFS has determined that the changes the VMS operating measure described above, this final rule commercial red snapper quota was requirements for vessels to allow the also changes the names and related reached on October 15, the commercial VMS unit to be turned off if the vessel definitions for ‘‘Vessel Tracking System red snapper fishery will not reopen on is out of the water continuously for (VTS)’’ to ‘‘Vessel Monitoring System November 1; it will remain closed until more than 72 consecutive hours, (VMS)’’ and ‘‘VTS unit’’ to ‘‘VMS unit’’ noon on February 1, 1999. provided the owner of the vessel obtains to provide consistency with other NMFS and complies with a letter of exemption Regions. During the closure, the bag and issued to the vessel. The change in VMS Comments and Responses possession limits specified in 50 CFR operating requirements is necessary to 622.39(b) apply to all harvest or address the lack of available power NMFS received written comments on possession of red snapper in or from the required to keep VMS units operational the proposed rule from one individual EEZ in the Gulf of Mexico, and the sale when vessels are removed from the and one fishing industry association. or purchase of red snapper taken from water for repair and maintenance. Specific comments are discussed and the EEZ is prohibited. In addition, the DATES: Effective November 30, 1998. responded to here. bag and possession limits for red Comment: The fishing industry ADDRESSES: Copies of the Regulatory snapper apply on board a vessel for association supports implementation of Impact Review supporting this action which a commercial permit for Gulf reef the amendment that would allow may be obtained from Jon C. Rittgers, vessels to turn off the VMS unit if the fish has been issued, without regard to Acting Regional Administrator, where such red snapper were harvested. vessel will be out of the water Northeast Regional Office, NMFS, One continuously for more than 72 However, when the recreational quota Blackburn Drive, Gloucester, MA 01930. for red snapper has been reached and consecutive hours. Comments regarding burden-hour Response: The comment has been the bag and possession limit has been estimates for collection-of-information reduced to zero, such possession during noted and the regulatory amendment is requirements contained in this final rule approved. a closed period is prohibited. The should be sent to Jon C. Rittgers and the Comment: One individual and one recreational red snapper fishery was Office of Information and Regulatory fishing industry association expressed closed on September 30, 1998 (63 FR Affairs, Office of Management and concern over the requirement of 45760). Budget (OMB), Washington, DC 20502 requiring VMS units to be fully (Attention: NOAA Desk Officer). Classification operational at all times and transmit a FOR FURTHER INFORMATION CONTACT: Paul signal indicating a vessel’s accurate This action is taken under 50 CFR H. Jones, Fishery Policy Analyst, 978– position at least every hour, 24 hours a 622.43(a) and is exempt from review 281–9273. day, without interruption, throughout under E.O. 12866. SUPPLEMENTARY INFORMATION: A the year. They state that most docks do proposed rule for this action was not have shore power hook-ups, and Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58329 many do not have generators, making Dated: October 22, 1998. (2) Power Down Exemption. (i) Any the 24–hours a day requirement Gary Matlock, vessel required to have on board a fully impractical. Acting Assistant Administrator for Fisheries, operational VMS unit at all times, as Response: NMFS understands this National Marine Fisheries Service. specified in paragraph (b)(2) of this problem and may further adjust the For the reasons set out in the section, is exempt from this requirement VMS power down regulations through a preamble, 50 CFR part 648 is amended provided: regulatory amendment, if information as follows: (A) The vessel will be continuously becomes available to support such a out of the water for more than 72 PART 648ÐFISHERIES OF THE consecutive hours; and change. NORTHEASTERN UNITED STATES (B) A valid letter of exemption Classification 1. The authority citation for part 648 obtained pursuant to paragraph (c)(2)(ii) of this section has been issued to the This final rule has been determined to continues to read as follows: Authority: 16 U.S.C. 1801 et seq. vessel and is on board the vessel and the be not significant for purposes of E.O. 2. In § 648.2, the definitions for vessel is in compliance with all 12866. ‘‘Vessel Tracking System (VTS)’’ and conditions and requirements of said The Assistant General Counsel for ‘‘VTS unit’’ are removed, and the letter. Legislation and Regulation of the definitions for ‘‘Vessel Monitoring (ii) Letter of Exemption—(A) Department of Commerce certified to System (VMS)’’ and ‘‘VMS unit’’ are Application. A vessel owner may apply the Chief Counsel for Advocacy of the added in alphabetical order to read as for a letter of exemption from the Small Business Administration that this follows: operating requirements specified in rule would not have a significant paragraph (c)(1) of this section for his/ economic impact on a substantial her vessel by sending a written request number of small entities. No comments § 648.2 Definitions. to the Regional Administrator and were received regarding this * * * * * providing the following: Sufficient certification. As a result, a regulatory Vessel Monitoring System (VMS) information to determine that the vessel flexibility analysis was not prepared. means a vessel monitoring system as set will be out of the water for more than Notwithstanding any other provision forth in § 648.9 and approved by NMFS 72 continuous hours; the location of the of law, no person is required to respond for use by scallop and NE multispecies vessel during the time an exemption is to, nor shall a person be subject to a vessels, as required by this part. sought; and the exact time period for penalty for failure to comply with, a VMS unit means a device installed on which an exemption is needed (i.e., the collection of information subject to the board a vessel used for vessel time the VMS will be turned off and requirements of the Paperwork monitoring and transmitting the vessel’s turned on again). Reduction Act (PRA) unless that position as required by this part. (B) Issuance. Upon receipt of an collection of information displays a * * * * * application, the Regional Administrator currently valid OMB control number. 3. In § 648.9, the acronym ‘‘VTS’’ in may issue a letter of exemption to the The rule contains one new collection- the section heading is replaced with the vessel if it is determined that the vessel of-information requirement subject to acronym ‘‘VMS’’ and paragraph (b)(2), owner provided sufficient information the PRA. The collection-of-information the first sentence of paragraph (b)(5), as required under paragraph (c)(2)(ii)(A) requirement has been approved by the and paragraphs (b)(7) and (c) are revised of this section and that the issuance of Office of Management and Budget, OMB to read as follows: the letter of exemption will not jeopardize accurate monitoring of the control number OMB 0648–0202. § 648.9 VMS requirements. vessel’s DAS. Upon written request, the The estimated response time includes * * * * * Regional Administrator may change the the time needed for reviewing (b) * * * time period for which the exemption instructions, searching existing data (2) The VMS shall be fully automatic was granted. sources, gathering and maintaining the and operational at all times, regardless data needed, and completing and of weather and environmental * * * * * reviewing the collection of information. conditions, unless exempted under 4. In addition to the amendments set Public comment is sought regarding paragraph (c)(2) of this section. forth above, the acronym ‘‘VTS’’ is replaced with the acronym ‘‘VMS’’, and whether this collection of information is * * * * * necessary for the proper performance of (5) The VMS shall provide accurate the acronym ‘‘VTSs’’ is replaced with the functions of the agency, including hourly position transmissions every day the acronym ‘‘VMSs’’ wherever they whether the information has practical of the year unless exempted under appear throughout the following places: utility; the accuracy of the burden paragraph (c)(2) of this section. * * * a. Section 648.4(c)(2)(iii)(A), (c)(2)(iv)(B), and (e)(1)(iv); estimate; ways to enhance the quality, * * * * * utility, and clarity of the information to (7) The VMS vendor shall be capable b. Section 648.7(b)(1)(i) and (b)(1)(iii); be collected; and ways to minimize the of transmitting position data to a NMFS- c. Section 648.9(a), (b) introductory burden of the collection of information, designated computer system via a text, (b)(1), (b)(3)-(b)(6), (b)(8)-(b)(9), and including through the use of automated modem at a minimum speed of 9600 (d)-(g); collection techniques or other forms of baud. Transmission shall be in a file d. Section 648.10(a), (b) introductory information technology. Send comments format acceptable to NMFS. text, (b)(1), (b)(2), (b)(4), (b)(5), (c) regarding this burden estimate or any * * * * * introductory text, (e) introductory text, other aspect of this data collection to (c) Operating requirements. (1) All (e)(1), (e)(1)(ii), and (f)(1); and NMFS and OMB (see ADDRESSES). required VMS units must transmit a e. Section 648.14(a)(7), (c)(2) introductory text, (c)(2)(i), (c)(2)(ii), List of Subjects in 50 CFR Part 648 signal indicating the vessel’s accurate position at least every hour, 24 hours a (h)(3), and (h)(4). Fisheries, Fishing, Reporting and day, unless such vessel is exempted [FR Doc. 98–29084 Filed 10–29–98 8:45 am] recordkeeping requirements. under paragraph (c)(2) of this section. BILLING CODE 3510±22±F 58330

Proposed Rules Federal Register Vol. 63, No. 210

Friday, October 30, 1998

This section of the FEDERAL REGISTER General Counsel, GC–72, 1000 number of comments that by only contains notices to the public of the proposed Independence Avenue, S.W., considering consumers purchasing T–12 issuance of rules and regulations. The Washington, D.C. 20585, (202) 586– ballast systems, the Department would purpose of these notices is to give interested 9507. not capture the full range of impacts persons an opportunity to participate in the likely to result from the rulemaking. rule making prior to the adoption of the final SUPPLEMENTARY INFORMATION: Pursuant rules. to section 325 of the Energy Policy and During the March 18, 1997, workshop Conservation Act (EPCA), 42 U.S.C. on the Revised Life Cycle Cost and 6295, the Department of Energy (DOE) Engineering Analysis of Fluorescent DEPARTMENT OF ENERGY proposed to revise the energy Lamp Ballasts, the Alliance to Save conservation standards applicable to Energy, Natural Resources Defense Office of Energy Efficiency and fluorescent lamp ballasts, as well as a Council and American Council for an Renewable Energy variety of other consumer products. 59 Energy Efficient Economy (ACEEE) FR 10464 (March 4, 1994). On January commented that the Department, in 10 CFR Part 430 31, 1995, the Department published a considering standards at the electronic [Docket Number EE±RM±97±500] rulemaking determination that, based on ballast efficiency level, should include consideration of the benefits or costs RIN 1904±AA75 comments received, it would issue a revised notice of proposed rulemaking that result when consumers choose to Energy Conservation Program for for fluorescent lamp ballasts. 60 FR purchase electronic ballast T–8 systems Consumer Products: Fluorescent 5880 (January 31, 1995). Section instead of electronic ballast T–12 Lamp Ballasts Energy Conservation 325(o)(2) requires that any amended systems. This issue was raised again by Standards standard be designed to achieve the ACEEE in its written comments of maximum improvement in energy October 2, 1997, on the Draft Report on AGENCY: Office of Energy Efficiency and efficiency that is technologically Potential Impact of Possible Energy Renewable Energy, Department of feasible and economically justified. 42 Efficiency Levels for Fluorescent Lamp Energy. U.S.C. 6295(o)(2). Ballasts (ACEEE, No. 14) and again in its ACTION: Notice of limited reopening of During the conduct of several written comments of June 5, 1998, in the record and opportunity for public workshops and in other discussions response to the Public Workshop on comment. with stakeholders , two issues have Possible Impacts of Energy Efficiency arisen that the Department wishes to Standards for Fluorescent Lamp Ballasts SUMMARY: The Department of Energy notice to the public prior to the issuance conducted on April 28, 1998. (ACEEE, reopens the record of its rulemaking to of a revised proposed rule. No. 24). revise energy conservation standards for In consideration of these comments, fluorescent lamp ballasts under the Issue 1 this issue was further discussed with Energy Policy and Conservation Act. In the analyses for the 1994 Proposed the National Electrical Manufacturers This notice provides an opportunity for Rule, the February, 1996, Draft Report Association (NEMA) at a meeting on public comment regarding the and the July, 1997, Draft Report June 9–10, 1998. At this meeting, DOE Department’s consideration of regarding the potential impacts of and NEMA members discussed ways to consumers who choose electronic possible energy efficiency levels for compare an electronic ballast T–12 ballast T–8 systems over electronic fluorescent lamp ballasts, the system to an electronic ballast T–8 ballast T–12 systems and consumers Department conducted the analyses by system, including how such a who choose electronic ballasts over comparing magnetic ballast T–12 comparison would require an additional cathode cutout ballasts. systems to electronic ballast T–12 normalization step to account for the DATES: Comments must be received on systems and magnetic T–8 systems to lamp lumen differences. Preliminary or before November 30, 1998. electronic T–8 systems when evaluating impact analyses using a normalization ADDRESSES: Written comments are efficiency levels where the consumer is approach which uses the mean welcome. Please submit 10 copies (no faced with standard levels requiring characteristics representative of the faxes) to: Brenda Edwards-Jones, U. S. electronic ballasts. The Department was most popular T–12 and T–8 lamps Department of Energy, Office of Energy silent on any comparison of magnetic indicates that a shift from T–12 lamps Efficiency and Renewable Energy, T–12 systems to electronic ballast T–8 with electronic ballasts to T–8 lamps Energy Conservation Program for systems. The analyses were conducted with electronic ballasts would yield Consumer Products: Fluorescent Lamp in a manner which essentially assumed significant additional energy and life Ballasts, Docket No. EE–RM–97–500, all consumers of magnetic T–12 ballast cycle cost savings. Any such market 1000 Independence Avenue, S.W., systems would replace them with shift in lamp usage caused by a ballast Washington, D.C. 20585–0121. electronic T–12 ballast systems. Prior to standard could also have an impact on FOR FURTHER INFORMATION CONTACT: Carl 18 months ago, there had been no lamp manufacturers. Adams, U.S. Department of Energy, comments regarding the validity or In a letter to the Department, dated Office of Energy Efficiency and impact of conducting the analysis in October 16, 1998, NEMA stated that Renewable Energy, EE–43, 1000 this manner. DOE should not consider the impact of Independence Avenue, S.W., Current industry data indicates that any shift from T–12 systems to T–8 Washington, D.C. 20585–0121, (202) approximately 94 percent of consumers systems because any additional benefits 586–9127, or Eugene Margolis, Esq., who choose electronic ballasts choose would accrue from system efficiencies U.S. Department of Energy, Office of T–8 systems. DOE has now received a of the ballast and the lamp. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58331

The Department believes its analysis ballasts represent approximately one conservation standard set at a level of the impacts of a potential standard percent of the magnetic ballast market. requiring cathode cutout ballasts on level on consumers, manufacturers and In discussions with manufacturers consumers, manufacturers and the the nation, as prescribed by EPCA, after the June 9–10, 1998 meeting at nation. NEMA, manufacturers stated a belief requires the analysis to compare the Public Comment marketplace before and after standards that when faced with such a standard, and to measure the impacts of changes. many consumers would choose DOE seeks comments on the DOE believes this policy is consistent electronic ballasts instead of cathode following: • with previous rulemakings such as the cutout ballasts. They indicated this In considering standards set at the Department’s consideration of a possible choice would increase the impact on level of electronic ballasts, whether a shift from gas mobile home furnaces to manufacturers who produce magnetic market shift from T–12 systems to T–8 electric heat if the gas mobile home ballasts and requested changes in the systems is likely to occur, the extent of furnace standards were increased. manufacturer impact analysis, as any such shift in terms of a percentage and whether any such shift should be Further, the Department believes, specifically, the Government Regulatory considered in determining the impact of based on current sales, if a standard Impact Model (GRIM), to account for an energy conservation standard on required consumers of magnetic ballast this possible shift. The Department believes its analysis consumers, manufacturers and the T–12 systems to purchase electronic of the impacts of a potential standard nation. ballasts, it is likely that many if not level on consumers, manufacturers and • In considering standards that would most of these consumers would choose the nation, as prescribed by EPCA, require T–12 cathode cutout ballasts, to purchase electronic ballast T–8 requires the analysis to compare the whether a market shift from cathode systems. In determining the likely marketplace before and after standards cutout ballasts to electronic ballasts is benefits and costs for the nation and the and to measure the impacts of changes. likely to occur, the extent of any such likely impacts on manufacturers, the DOE believes this policy is consistent shift in terms of a percentage, the Department intends to explore a range with previous rulemakings such as the percentage of those consumers choosing of market scenarios using different Department’s consideration of a possible electronic ballasts who would choose assumptions about the likely effects of shift from gas mobile home furnaces to T–8 systems and whether any shift a new DOE standard on ballasts on the electric heat if the gas mobile home should be considered in determining the market shares of T–8 and T–12 systems. furnace standards were increased. impact of an energy conservation Additionally, the Department intends to Given the small current market share standard on consumers, manufacturers analyze both the range of life cycle costs of cathode cutout ballasts, the and the nation. for consumers who choose electronic Department believes it would be Issued in Washington, D.C., on October 26, ballast T–12 systems and the range of reasonable to assume that with an 1998. life cycle costs for consumers who energy conservation standard set at the Dan W. Reicher, choose electronic ballast T–8 systems. cathode cutout level, many consumers By this notice, the Department is Assistant Secretary, Energy Efficiency and would choose electronic ballasts, even Renewable Energy. soliciting public comment on whether a though the cathode cutout ballast would market shift from T–12 systems to T–8 [FR Doc. 98–29156 Filed 10–29–98; 8:45 am] then be the lowest cost ballast. It would BILLING CODE 6450±01±P systems is likely to occur if an energy also be reasonable to assume that many conservation standard were set at a level or most of the consumers who choose requiring electronic ballasts, the extent electronic ballasts will also choose to DEPARTMENT OF TRANSPORTATION of any such shift in terms of a convert from T–12 to T–8 lamps at the percentage and whether any such shift time of ballast replacement. In Federal Aviation Administration should be considered in determining the determining the likely benefits and costs impact of an energy conservation for the nation and the likely impacts on 14 CFR Part 121 standard set at a level requiring manufacturers, the Department intends [Docket No. 25611] electronic ballasts on consumers, to explore a range of market scenarios manufacturers and the nation. using different assumptions about the RIN 2120±AC84 Issue 2 likely effects of a new DOE standard on ballasts on the market shares of Retrofit of Improved Seats in Air In the analyses for the 1994 Proposed electronic and cathode cutout ballasts. Carrier Transport Category Airplanes Rule, the February, 1996, Draft Report Additionally, the Department intends to AGENCY: Federal Aviation and the July, 1997, Draft Report analyze both the range of life cycle costs Administration, DOT. regarding the potential impacts of for consumers who choose electronic ACTION: Notice of public meeting, possible energy efficiency levels for ballasts and the range of life cycle costs reopening of comment period. fluorescent lamp ballasts, the for consumers who choose cathode Department conducted the analysis by cutout ballasts. By this notice, the SUMMARY: This document announces a comparing magnetic ballasts to cathode Department is soliciting public public meeting in which the Federal cutout ballasts when evaluating comment on whether a market shift Aviation Administration (FAA) will efficiency levels where the consumer is from cathode cutout ballasts to discuss changes in and solicit comments faced with standard levels requiring electronic ballasts is likely to occur if an and information from the public on the cathode cutout ballasts. The Department energy conservation standard were set at FAA’s current draft rule to require the was silent on any comparison of a level requiring cathode cutout ballasts, retrofit of improved seats in air carrier cathode cutout ballasts to electronic the extent of any such shift in terms of transport category airplanes. A Notice of ballasts. The analyses were conducted a percentage, the percentage of those Proposed Rulemaking (NPRM) that in a manner which essentially assumed consumers choosing electronic ballasts proposed requiring more crashworthy all consumers of magnetic ballasts who would choose T–8 systems and seats on most air carrier airplanes would replace them with cathode cutout whether any shift should be considered operating under parts 121 and 135 was ballasts. Currently cathode cutout in determining the impact of an energy published on May 17, 1988. The draft 58332 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules rule currently under consideration Marriott Crystal Forum, 1999 Jefferson requests should be submitted to Ms. differs in some respects from the 1988 Davis Highway, Arlington, Virginia Terry Stubblefield, Aircraft and Airport proposal. This document describes 22202–3564; telephone (703) 413–5500, Rules Division, as listed in the section those differences and announces a 2-day facsimile (703) 413–0185. Hotel above titled FOR FURTHER INFORMATION public meeting at which the difference reservations should be made in advance. CONTACT and should include a written may be addressed and more current A block of rooms has been reserved at summary of oral remarks to be information and views obtained. This the following two hotels: presented and an estimate of time document also reopens the comment • Hyatt Regency Crystal City at needed for the presentation. Requests period. Washington National Hotel, 2799 received after the date specified above DATES: The public meeting will be held Jefferson Davis Highway, Arlington, will be scheduled if there is time on December 8 and 9, 1998, at 9:00 a.m., Virginia 22202; telephone (703) 418– available during the meeting; however, in Arlington, Virginia. Registration will 1234, facsimile (703) 418–1289. the names of those individuals may not begin at 8:30 a.m. on each day. • Hilton Crystal City at National appear on the written agenda. The FAA Comments must be received no later Airport, 2399, Jefferson Davis Highway, will prepare an agenda of speakers and than January 8, 1999. Arlington, Virginia 22202; telephone presenters and make the agenda ADDRESSES: The public meeting will be (703) 418–6800, facsimile (703) 418– available at the meeting. To held at the Marriott Crystal Forum, 1999 3763. accommodate as many speakers as Jefferson Davis Highway, Arlington, Persons wishing to attend the public possible, the amount of time allocated to Virginia 22203–3564; telephone (703) meeting are encouraged to make each speaker may be less than the 413–5500, facsimile (703) 413–0185. reservations at the Hyatt Regency amount of time requested. Persons Persons who are unable to attend the Crystal City by November f16, 1998, or requiring audiovisual equipment should meeting and wish to submit written at the Hilton Crystal City by November notify the FAA when requesting to be comments may mail their comments 7, 1998, to take advantage of the special placed on the agenda. (clearly marked with the docket room rates. When making reservations, Background number) in triplicate to Federal persons should contact the hotel Aviation Administration, Office of the directly using the telephone or facsimile Title III, section 303(b) of the Airport Chief Counsel, Attention: Rules Docket numbers listed above and should and Airway Safety and Capacity Expansion Act of 1987 (Public Law 100– (AGC–200), Docket No. 25611, 800 indicate that they will be attending the 223, December 30, 1987) mandates Independence Avenue SW., Federal Aviation Administration public rulemaking to consider requiring Washington, DC 20591, or deliver in meeting. person to room 915G at the same The purpose of the meeting is for the improved crashworthiness standards for address. Comments also may be FAA to (1) discuss with the public the aircraft seats. The act states the submitted electronically to the draft final rule that is currently under following: following Internet address: 9–npr– consideration, which differs from the Not later than 120 days after the date of the [email protected]. Comments may be original proposal, (2) fully discuss the enactment of this Act, the Secretary [of inspected in room 915G weekdays, technical and cost-related issues of Transportation] shall initiate a rulemaking proceeding to consider requiring all seats on except Federal holidays, between 8:30 compliance with the retrofit of board all air carrier aircraft to meet improved a.m. and 5:00 p.m. Written comments to improved seats on air carrier transport crashworthiness standards based upon the the docket will receive the same category airplanes, and (3) hear best available testing standards for consideration as statements made at the comments from the public on these crashworthiness. public meeting. issues. The agenda for the meeting will On May 17, 1988, the FAA published FOR FURTHER INFORMATION CONTACT: include: crashworthiness standards for seats Requests to present a statement at the Day One used in newly certified transport public meeting and questions regarding category airplanes (53 FR 17640). On the • Review Technical Standard Order the logistics of the meeting should be same date, the FAA published an NPRM (TSO)–C127a changes. directed to Ms. Terry Stubblefield, (Notice No. 88–8, 53 FR 17650) to • Review of latest Head Injury Aircraft and Airport Rules Division, require the retrofit of crashworthy seats Criteria (HIC) research and component ARM–200, Federal Aviation on most existing transport category Administration, 800 Independence tester development. • Review the NPRM (Notice No. 88– airplanes used in operations under 14 Avenue SW., Washington, DC 20591; CFR parts 121 and 135. The NPRM telephone (202) 267–7624, facsimile 8) and text of the draft final rule currently under consideration. proposed to prohibit the operation of (202) 267–5075. Technical questions • these airplanes unless all passenger and should be directed to Mr. John Petrakis, Discuss ‘‘16g-compatible seat’’ testing for passenger and flight flight attendant seats met the Aircraft Engineering Division, AIR–120, crashworthiness standards for newly Federal Aviation Administration, 800 attendant seats. • Review in detail the cost/benefit certified airplanes adopted concurrently Independence Avenue SW., analysis. by the agency in 14 CFR part 25, as Washington, DC 220591; telephone • Public presentations. noted above. (202) 267–9274, facsimile (202) 267– Approximately 70 commenters 5340. Cost/Benefit questions should be Day Two responded to Notice No. 88–8. Forty- directed to Ms. Marilyn Don Carlos, • Public presentations. five commenters agreed with the Aircraft Regulatory Analysis Branch, • Responses to questions and open proposal, 14 opposed it, and 11 APO–320, Federal Aviation discussion of identified issues. supported the intent of the proposal but Administration, 800 Independence did not agree with all the provisions. Avenue SW., Washington, DC 20591; Participation at the Public Meeting Comments received in response to telephone (202) 267–3319, facsimile Requests from persons who wish to Notice No. 88–8, subsequent submittals, (202) 267–3324. present oral statements at the public and information obtained during other SUPPLEMENTARY INFORMATION: The meetings should be received by the FAA public meetings are being considered in public meeting will be held at the no later than December 1, 1998. Such developing the proposed final rule. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58333

Proposed Revisions Under earlier, and the proposed schedule for be similar to a dynamic test article and/ Consideration compliance. or the differences statistically analyzed to substantiate similarity. Modest seat Based on comments to Notice No. 88– Analysis of Proposed Revisions Under weight increases not to exceed 6 percent 8, and other available information, the Consideration would be allowed. FAA is considering revisions to the The FAA is describing the revisions proposed rule. The proposal currently Applicants would submit their currently under consideration to allow requests and substantiating test data under consideration is described as for public review prior to the public follows: package to their local Aircraft meeting. If the rule is adopted with the Certification Office for evaluation. Section 121.311, Seats, safety belts, changes described above, seats that Subsequent evaluation, if necessary, and shoulder harnesses, contains the would be approved as ‘‘16g-compatible’’ would be performed by a ‘‘Seat current requirements. The FAA is would be required to undergo a Evaluation Review Team’’ consisting of considering adopting a new paragraph supplemental certification. The a core of two or three engineers from the (j) that would prohibit the operation of supplemental seat certification process FAA’s Aircraft Certification Service and each transport category airplane type that will be administered by the FAA the Civil Aeromedical Institute (CAMI), certificated after January 1, 1958, unless would be as follows. all passenger and flight attendant seats Aircraft seats/seat types designed and who would be responsible for the final in the airplane fully comply with the manufactured to the requirements of technical evaluation and approval, to provisions of 14 CFR 025.562, in effect TS0–C39, i.e., ‘‘9g seats’’ or the ensure standardization of evaluation. on June 16, 1988. The FAA is equivalent that an operator or seat Written supplemental seat approvals considering an exception for airplanes manufacturer (applicant) considers to be for seats meeting the requirements, operated in all-cargo operations. The ‘‘16g-compatible seats,’’ would be when granted, would be issued by the prohibition would be effective 4 years required to be approved by the FAA. To Director, Aircraft Certification Service to after the date of publication of the final qualify a ‘‘16g-compatible seat,’’ the the applicant, which could be either the rule. applicant would be required to show aircraft seat manufacturer or the The FAA is also considering an that the seat or seat type will withstand operator. Each applicant in possession alternative to paragraph (j), which the forces addressed in 14 CFR of written approval would be required would be contained in a new paragraph § 25.562(a) and (b) without structural to provide the proper identification of (k). The alternative would allow a separation of the seat’s primary its seats by ensuring that each seat transport category airplane type structure. In addition, the applicant permanently and legibly is labeled as certified after January 1, 1958, to would have to show that the occupant follows: ‘‘16g Compatible per § 121.311’’ continue to be operated after 4 years dummy remains in the seat during the and date of application of the label. The after the final rule is published, test and would not be ‘‘entrapped’’ by label would be required to be provided that all passenger and flight the test article. conspicuously located next to the attendant seats comply with 14 CFR The responsibility for demonstrating existing seat label. 25.562, or a properly marked as ‘‘16g- compliance would rest with the The FAA will make available, upon compatible.’’ Any combination of seats operator. The responsibility for request, information stating the makes that comply with 14 CFR 25.562, or are obtaining supplemental seat and models of approved ‘‘16g- properly marked also would be certification approval for ‘‘16g- compatible seat’’ types. However, acceptable. A seat could be properly compatible seats’’ would rest with either affected air carriers and commercial marked as ‘‘16g-compatible’’ if it is the air carrier operator or the aircraft operators ultimately would be manufactured before the 4 year date, seat manufacturer. The applicant would responsible for obtaining the necessary and the Administrator has determined have to provide the FAA with sufficient data and approval. The FAA anticipates the seat type to be capable of carrying seat dynamic test data to support a that seat manufacturers and associations the resultant dynamic loads required in compliance finding. At a minimum, the such as the Air Transport Association § 25.562 (a) and (b), without structural data package would include the (ATA), National Air Transportation separation of primary, i.e., seat legs, dynamic test results for a 16g forward Association (NATA), Regional Airline frame, or seat track attachments. The test with floor warpage (for passenger Association (RAA), and others, who concept of ‘‘16g compatible’’ is further seats only) and a 16g vertical test. The have worked with the FAA in the past described below. data would include a complete to improve occupant safety, would share The Administrator’s determination description of the test article (for data and information with each other. that a seat type is ‘‘16g-compatible’’ example, configuration, weight, and The air carrier, commercial operator, or would be required to be made before 3 restraints); other types of testing airplane manufacturer may get a seat years after publication of the final rule. information (including test set up, type manufacturer to share some of the The Administration could make the of anthropomorphic dummy, and burden of obtaining FAA approval of determination on a later date if it is also detailed description of seat attachment some aspects of seating system design. determined that special circumstances to include type of floor track In any event, it is each operator’s make compliance by the 3 year date (representative floor track not required) responsibility to obtain supplemental impracticable and that the public or wall mounting, and seat floor or wall seat certification for continued interest warrants a later date. A request attach fittings (for passenger seats operation of airplanes. for such an extension would be made to only)); facility used and observers the Manager of the Transport Airplane present; deformation measurements, if Cost/Benefit Information Directorate, Aircraft Certification available; and any post-test Costs Service; in responding to that request, observations, photos, and video the Directorate would consider, among documentation. The total cost of the 16g seat retrofit other things, the specific seats/seat A seat shown to be a variation of an draft final rule will be $950.5 million types for which timely compliance approved ‘‘16g-compatible seat’’ could ($518.7 million discounted at 7 percent) would not be achieved, the reasons why be approved by similarity analysis. over the 20-year period from 1999 compliance could not be achieved These related seats could be shown to through 2018. In the development of 58334 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules this analysis the following assumptions certification to show 16g requirements of one seat per flight per day. Did that were made: for a similar configuration is $40,000. comment take into consideration the fact that, because most people book 1. On average, an airplane’s service Benefits life is expected to be 42 years and its seats in advance, these passengers could passenger seats are replaced at 14-year The benefits of the 16g seat retrofit rebook seats on nonfilled flights? intervals. rule are estimated to range from $680 10. How long would it take to remove 2. Airplane passenger seats installed million to $1.2 billion ($290 to $530 old seats and install 16g or ‘‘16g- or replaced since 1992 are 16g million, discounted) over a 20-year compatible seats’’ in an airplane? When compatible. period. would new seat installations most likely 3. Flight attendant seats are not These benefits are based on the be done? Would they be done in service replaced. number of fatalities and injuries that or during C checks or D checks? 4. The incremental cost of a 16g would be avoided given accident rates Accordingly, the FAA will conduct a compatible passenger seat is $78. that had survivors. Approximately 210 2-day public meeting in Arlington, to 410 fatalities and 220 to 240 serious Installation costs are $65 per seat. Virginia, for the purpose of gathering injuries would be avoided over a 20- 5. The average cost of a 16g flight this additional information. year period. The comment period on the proposed attendant seat is $5,400. Installation The range of benefits stems from the costs are $85 per seat. rule will remain open until January 8, uncertainty in determining whether a 1999, 30 days after the close of the 6. With a compliance date proposed at given fatality would have been 4 years after the effective date of the public meeting. The FAA will use this prevented with a 16g seat (researchers’ public meeting as a forum to discuss rule, estimated to be January 1999, the confidence in the specific cause of costs of the rule include costs for the previously submitted comments, hear fatalities varied across accidents, seat new comments, and accept additional early replacement of some seats. location, etc.). 7. Downtime costs for airplanes data and support methodologies from whose seats will be replaced on an Information Requested the public. accelerated schedule (i.e., normal Persons interested in obtaining a copy Based on the length of time since the of Notice No. 88–8 should contact Ms. replacement would not occur before the close of the comment period, the FAA Terry Stubblefield, Aircraft and Airport compliance date) are $9,124 for the half- has determined that it is in the public Rules Division, at the address, day estimated for installation. interest to reopen the comment period telephone number, or facsimile number 8. A weight penalty of 1.5 pounds per on this NPRM to seek additional data provided in the section above titled FOR passenger seat place and between 0 and and supporting methodology in the FURTHER INFORMATION CONTACT. 3 pounds per flight attendant seat was following areas: An electronic copy of the Notice of used. 1. How many applications for seat Public Meeting and Notice No. 88–8 9. The annual cost of carrying the certifications (basic vs. modification) may be downloaded using a modem and additional weight of a passenger seat is should the FAA expect per year for each suitable communications software from $14.02, while the annual cost of the seat class—flight attendant, tourist, the FAA regulations section of the additional weight of a flight attendant business, and first class for both 16g and FedWorld electronic bulletin board seat is $8.42 (weighted average). ‘‘16g-compatible’’? service (telephone: (703) 321–3339) or 10. Although the FAA believes air 2. What will it cost to certificate a the Government Printing Office’s (GPO) carriers will replace ‘‘16g-compatible ‘‘16g-compatible seat’’ vs. a full 16g electronic bulletin board service seats’’ with ‘‘16g-compatible seats,’’ the seat? (telephone: (202) 512–1661). FAA has included the incremental costs 3. What is the structural weight increase/decrease between a 16g and a Internet users may reach the FAA’s of the ‘‘16g passenger seats’’ and their web page at http://www.faa.gov or the weight penalties from the date of 9g seat, by class? 4. What percentage of seats produced GPO’s web page at http:// replacement after the effective date of www.access.gpo.gov/suldocs to access the rule. since 1992 are ‘‘16g-compatible?’’ 5. Are the assumptions valid that recently published rulemaking 11. An average of six passenger seats passenger seats are replaced, on average, documents. per airplane will need to have every 14 years, and that flight attendant additional protection to comply with Public Meeting Procedures seats are rarely replaced? front-row HIC. The cost of this 6. What is the average retirement age Persons who plan to attend the protection, which could be in the form for an airplane when it leaves part 121 meeting should be aware of the of a special seat belt, is estimated to be or part 135 service? following procedures established for $50 per seat. 7. What are various means of this meeting: 12. Air carriers will not need to complying with front-row HIC? How 1. There will be no admission fee or remove a row of seats, avoiding lost much do they cost? Are there other charge to attend or to participate revenue. disadvantages to installing a y-belt? in the public meeting. The meeting will 13. No structural modifications to the What about removable bulkheads, be open to all persons who have airframe of affected airplanes will be airbags, or shoulder harnesses? What is requested in advance to present necessary as a result of the rule. the incremental cost of a y-belt, a statements or who register on the day of The total estimated cost for seats, shoulder harness, and an airbag? the meeting (between 8:30 a.m. and 9:00 installation, weight penalties, and 8. The FAA received comments a.m.), subject to availability of space in downtime for certain airplanes is $637.8 stating that removing a row of seats is the meeting room. million. Certification costs during the the only way to comply with HIC. What 2. Representatives from the FAA will period will be $312.7 million ($156.8 is the foundation for that comment? Is conduct the public meeting. A panel of million discounted). The cost to show the answer different depending on FAA experts will be present to discuss 16g compatibility is estimated to be whether the airplane is a wide or information presented by participants. $100,000 per certification. The cost to narrow body? 3. The public meeting is intended as show full 16g requirements is $200,000 9. The FAA received comments that a forum to seek additional data and to per certification. The cost per estimated the cost associated with loss obtain clarification of supporting Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58335 methodologies from the industry. 11. The meeting is designed to solicit FOR FURTHER INFORMATION CONTACT: Participants must limit their public views and more complete Jeffrey J. Turner, Office of Regulations presentations and submissions of data to information relevant to the final rule and Interpretations, Pension and this issue. under consideration. Therefore, the Welfare Benefits Administration, U.S. 4. The meeting will offer the meeting will be conducted in an Department of Labor, telephone (202) opportunity for all interested parties to informal and nonadversarial manner. 219–8671. This is not a toll-free number. present additional information not Issued in Washington, DC, on October 23, SUPPLEMENTARY INFORMATION: On currently available to the FAA, and will 1998. September 9, 1998, the Department of provide an opportunity for the FAA to Douglas Kirkpatrick, Labor (the Department) published a explain the methodology and technical Acting Director, Aircraft Certification Service. notice of proposed rulemaking in the assumptions supporting its current [FR Doc. 98–29050 Filed 10–29–98; 8:45 am] Federal Register (63 FR 48376) conclusions. BILLING CODE 4910±13±M containing proposed amendments to the 5. FAA experts and public regulations governing the content of the participants are expected to engage in a Summary Plan Description (SPD) full discussion of all technical material DEPARTMENT OF LABOR required to be furnished to employee presented at the meetings. Each person benefit plan participants and presenting conclusions will be expected Pension and Welfare Benefits beneficiaries covered under Title I of the to submit to the FAA data fully Administration Employee Retirement Income Security supporting those conclusions; all Act (ERISA). On that same date, the proprietary data submitted will be 29 CFR Parts 2520 and 2560 Department also published a notice of protected by the FAA from disclosure in proposed rulemaking revising the accordance with applicable laws. RIN 1210±AA69 RIN 1210±AA61 minimum requirements for benefit 6. The FAA will try to accommodate claims procedures of employee benefit all speakers; therefore, it may be Summary Plan Descriptions; Claims plans covered by ERISA (63 FR 48390). necessary to limit the time available for Procedures; Notice of Extension of In those notices, the Department invited an individual or group. If necessary, the Comment Period all interested persons to submit written meeting may be extended to evenings or comments concerning the proposed additional days. If practicable, the AGENCY: Pension and Welfare Benefits regulations on or before November 9, meeting may be accelerated to enable Administration, Department of Labor. 1998. adjournment in less than the time ACTION: Notice of extension of comment The Department has received requests scheduled. periods. from some members of the public for 7. Sign and oral interpretation can be additional time to prepare comments on made available at the meeting, as well SUMMARY: This document extends the the proposed claims procedure as an assistive listening device, if comment period regarding the proposed regulation due to the complexity of the requested 10 calendar days before the regulations under section 102(b) of Title issues involved in that proposed meeting. I of the Employee Retirement Income regulation, and the Department believes 8. The meeting will be recorded by a Security Act of 1974 (ERISA) (relating to that it is appropriate to grant such court reporter. A transcript of the the content of the Summary Plan additional time. Accordingly, this notice meeting and all material accepted by the Description required to be furnished to extends the comment period during panel during the meeting will be employee benefit plan participants and which comments on the proposed included in the public docket, unless beneficiaries covered under ERISA) and claims procedure regulation will protected from disclosure. Each person under section 503 of ERISA (relating to received through December 9, 1998. interested in purchasing a copy of the claims procedures of employee benefit Moreover, although no requests for transcript should contact the court plans covered under ERISA). The extensions have been received regarding reporter directly. This information will proposed regulations were set forth in the proposed SPD content regulation, be available at the meeting. separate notices of proposed rulemaking this notice also extends through 9. The FAA will review and consider published in the Federal Register on December 9, 1998, the comment period all material presented by participants at September 9, 1998. for that rulemaking in order to ensure the public meeting. Position papers or DATES: The comment periods are that persons interested in both proposed material presenting views or extended through December 9, 1998. regulations, which are related in information related to the draft final ADDRESSES: Written comments should content, will have sufficient time to rule may be accepted at the discretion be submitted with a signed original and prepare comments. of the presiding officer and will be three copies to the Office of Regulations subsequently placed in the public and interpretations, Pension and Notice of Extension of Public Comment docket. The FAA requests that Welfare Benefits Administration, 200 Periods presenters at the meeting provide 10 Constitution Avenue N.W., Room N– Notice is hereby given that the period copies of all materials to be presented 5669, U.S. Department of Labor, of time for the submission of public for distribution to the panel members; Washington, DC 20210, and marked comments on the proposed regulation other copies may be provided to the ATTENTION: Proposed SPD Content relating to the content of the SPD audience at the discretion of the Regulations or Benefit Claims required to be furnished to employee presenter. Regulation, whichever is appropriate. benefit plan participants and 10. Statements made by members of All submissions will be available for beneficiaries covered under ERISA the panel are intended to facilitate public inspection in the Public (proposed at 63 FR 48376) and the discussion of the issues or to clarify Documents Room, Pension and Welfare proposed regulation relating to the issues. Comments made at these public Benefits Administration, Room N–5507, claims procedures of employee benefit meetings will be considered by the FAA 200 Constitution Avenue NW, plans covered under ERISA (proposed at before making a final decision on Washington, DC 20210 from 8:30 a.m. to 63 FR 48390), is hereby extended issuance of the final rule. 5:30 p.m. through December 9, 1998. 58336 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Signed at Washington, DC, this 27th day of burden of 38 U.S.C. 5107(a), a claim should adopt to govern the development October, 1998. need not be conclusive but only of claims which are not well grounded. Meredith Miller, possible. The Court has further held that List of Subjects in 38 CFR Part 3 Deputy Assistant Secretary For Policy, such a claim must be accompanied by Pension and Welfare Benefits Administration, supportive evidence and that such Administrative practice and U.S. Department of Labor. evidence must justify a belief by a fair procedure, Claims, Disability benefits, [FR Doc. 98–29173 Filed 10–29–98; 8:45 am] and impartial individual that the claim Health care, Pensions, Veterans, BILLING CODE 4510±29±M is plausible. For example, generally for Vietnam. a claim for service-connected disability Approved: September 24, 1998. benefits to be well grounded there must Togo D. West, Jr., DEPARTMENT OF VETERANS be: (1) a medical diagnosis of a current Secretary. AFFAIRS disability; (2) medical evidence, or in certain circumstances, lay evidence of [FR Doc. 98–29137 Filed 10–29–98; 8:45 am] 38 CFR Part 3 in-service incurrence or aggravation of a BILLING CODE 8320±01±P disease or injury; and (3) medical RIN 2900±AJ44 evidence of a nexus between an in- DEPARTMENT OF HEALTH AND Well Grounded Claims/Duty to Assist service disease or injury and the current disability. HUMAN SERVICES AGENCY: Department of Veterans Affairs. After establishing the requirement National Institutes of Health ACTION: Advance notice of proposed that a claimant must submit a well- rulemaking. grounded claim, 38 U.S.C. 5107(a) 42 CFR Part 63 requires the Secretary of Veterans SUMMARY: The Department of Veterans Affairs to assist ‘‘such a claimant’’ in RIN 0925±AA11 Affairs (VA) is issuing an advance developing the facts pertinent to the notice of proposed rulemaking claim. Both the Court and the U.S. Court Traineeships (ANPRM) to establish policy and of Appeals for the Federal Circuit have AGENCY: National Institutes of Health, guidance regarding what action, if any, held that VA’s statutory duty to assist DHHS. VA should take to develop evidence attaches only after a claimant submits a ACTION: Notice of proposed rulemaking. pertaining to benefit claims that are not well grounded claim. well grounded. In a substantial number of cases, both SUMMARY: The National Institutes of DATES: Written comments in response to the Board of Veterans Appeals and the Health (NIH) proposes to amend its this ANPRM must be received on or Court have found that claims developed regulations governing traineeships to before January 28, 1999. and adjudicated at VA’s regional offices reflect additional conditions under ADDRESSES: Mail or hand-deliver were not well grounded. which NIH may terminate traineeship written comments to: Director, Office of This situation has raised concerns awards and to reflect changes in the from a number of quarters. For example, Regulations Management (02D), authorities for the awards. some members of the Court have Department of Veterans Affairs, 810 DATES: Comments on the proposed suggested that 38 U.S.C. 5107(a) reflects Vermont Ave., NW, Room 1154, changes must be received on or before a statutory policy that implausible Washington, DC 20420. Comments December 29, 1998 in order to ensure claims should not consume the limited should indicate that they are submitted that NIH will be able to consider the resources of VA and force into backlog in response to ‘‘RIN: 2900–AJ44.’’ All comments in preparing the final rule. and delay well-grounded claims. The written comments received will be Veterans’ Claims Adjudication ADDRESSES: Comments should be sent to available for public inspection at the Commission, established under Pub. L. Jerry Moore, NIH Regulations Officer, above address in the Office of 103–446, questioned whether it is National Institutes of Health, 6011 Regulations Management, Room 1158, prudent to invest the cost in time and Executive Blvd., Suite 601, MSC 7669, between the hours of 8:00 a.m. and 4:30 resources of developing claims that are Rockville, MD 20852. Comments may p.m., Monday through Friday (except not well grounded. They maintained, also be sent electronically by facsimile holidays). among other things, that developing (301) 496–0169 or e-mail FOR FURTHER INFORMATION CONTACT: John claims that are not well grounded (1) ([email protected]). Bisset, Jr., Consultant, Regulations Staff, improperly lifts the burden of proof FOR FURTHER INFORMATION CONTACT: Compensation and Pension Service, from the claimant and places it on VA; Jerry Moore, NIH Regulations Officer, at Veterans Benefits Administration, 810 and (2) tends to unnecessarily expand the address above, or telephone (301) Vermont Avenue, NW, Washington, DC issues and drive the adjudication system 496–4607 (not a toll-free number). For 20420, telephone (202) 273–7210. toward requesting and obtaining information about traineeship awards SUPPLEMENTARY INFORMATION: Section irrelevant evidence rather than contact James Alexander, Acting 5107(a) of title 38, United States Code, concentrating resources on obtaining Director, Office of Education, Office of states that, unless otherwise provided evidence focused on the issues. Intramural Research, National Institutes by the Secretary, it is the responsibility Moreover, VA recognizes the need for of Health, Building 10, Room 1C–129, of any person who submits a claim for clear claims-development guidelines 10 Center Dr MSC 1158, Bethesda, MD benefits under a law administered by that can be consistently applied. The 20892–1158, telephone (301) 496–2427 VA to submit evidence to justify a belief Court has noted that if the Secretary, as (not a toll-free number). by a fair and impartial individual that a matter of policy, volunteers assistance SUPPLEMENTARY INFORMATION: Section the claim is well grounded. to establish well groundedness, grave 405(b)(1)(C) of the Public Health Service The U.S. Court of Veterans Appeals questions of due process can arise if (PHS) Act, as amended, authorizes the (the Court) has defined a well-grounded there is apparent disparate treatment Secretary, acting through the directors claim as a plausible claim, one which is between claimants in this regard. of the national research institutes of meritorious on its own or capable of By this ANPRM, VA invites input as NIH, to conduct and support research substantiation. To satisfy the initial to what policies and procedures it training for which fellowship support is Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58337 not provided under section 487 of the Federal Register format requirements. each Director of a national research PHS Act, and which is not residency The purpose of this Notice of Proposed institute of NIH, the Director of the training of physicians or other health Rulemaking (NPRM) is to invite public National Library of Medicine, and the professionals. Additionally, section comment with regard to the proposed Director of the Office of Alternative 404E(d)(2) of the PHS Act authorizes the changes. The following statements are Medicine, or their designees, pursuant Director of the Office of Alternative provided as public information. to sections 405(b)(1)(C), 472, and Medicine to support research training Executive Order 12866 404E(d)(2) of the Act, respectively. for which fellowship support is not * * * * * provided under section 487 of the PHS This NPRM was reviewed by the 3. Section 63.2 would be amended by Act, and that is not residency training Office of Management and Budget’s revising the definitions of ‘‘award,’’ of physicians or other health (OMB) Office of Information and ‘‘awardee,’’ ‘‘director,’’ and professionals; and section 472 of the Regulatory Affairs (OIRA) as required ‘‘traineeship,’’ and adding a new PHS Act authorizes the award of under Executive Order 12866, definition of ‘‘misconduct in science,’’ traineeships in medical library science Regulatory Planning and Review, and to read as follows: and related fields. Under these was deemed to be not significant, as authorities, NIH awards research defined under the Order. § 63.2 Definitions. traineeships to qualified individuals. Regulatory Flexibility Act * * * * * These traineeships are governed by the Award means an award of funds regulations codified at 42 CFR Part 63. The Regulatory Flexibility Act (5 under section 404E(d)(2), 405(b)(1)(C), The regulations were revised in their U.S.C. chapter 6) requires that 472, or other sections of the Act, which entirety, February 27, 1995 (60 FR regulatory actions be analyzed to authorize research training or 10718). NIH proposes to amend § 63.9 determine whether they will have a traineeships. by revising paragraph (b) to identify significant impact on a substantial Awardee means an individual scientific misconduct as a basis for number of small entities. The Director awarded a traineeship under section termination, and adding new paragraphs certifies that the proposed changes to 404E(d)(2), 405(b)(1)(C), 472, or other (c) and (d) which add conviction of a the traineeship regulations will not have sections of the Act, which authorize felony and certain other criminal a significant economic impact on a research training or traineeships offenses, and programmatic changes or substantial number of small entities Director means the director of one of lack of funds, respectively, as additional and, therefore, a regulatory flexibility the national research institutes of NIH, grounds for termination. analysis, as defined under the the Director of the National Library of Additionally, NIH proposes to amend Regulatory Flexibility Act, is not Medicine, and the Director of the Office the authority citation by removing the required. of Alternative Medicine, or any official United States Code citation, 42 U.S.C. Paperwork Reduction Act of NIH to whom the authority involved 287c(b), section 485B(b) of the PHS Act, has been delegated. to reflect the renaming of the National This NPRM does not contain any Center for Human Genome Research information collection requirements that * * * * * (NCHGR) as the National Human are subject to OMB approval under the Misconduct in science shall have the Genome Research Institute (NHGRI), Paperwork Reduction Act of 1995 (44 same meaning as prescribed in § 50.102 effective January 27, 1997 (62 FR 3900). U.S.C. chapter 35). of this chapter. As a result of the establishment of this Catalog of Federal Domestic Assistance * * * * * new research institute, the current Traineeship means an award of funds reference to section 485B is redundant The Catalog of Federal Domestic under section 404E(d)(2), 405(b)(1)(C), and unnecessary. The reference to Assistance (CFDA) numbered program 472, of the Act, or other sections of the section 405(b)(1)(C) of the PHS Act (42 affected by this NPRM is: 93.140 Act authorizing research training or U.S.C. 284(b)(1)(C)) is sufficient, Intramural Research Training Award traineeships, and the regulations of this because it provides research training List of subjects in 42 CFR Part 63 part, to a qualified individual for the authority for all research institutes. The person’s subsistence and other expenses Grant programs-health, Health, current references to the National Center during a period in which the awardee is Medical research. for Human Genome Research and acquiring the research training approved section 485B of the PHS Act in § 63.1 Dated: August 14, 1998. under the award. and § 63.2 are also redundant and Harold Varmus, 4. Section 63.9 would be amended by unnecessary as a result of the renaming. Director, National Institutes of Health. revising paragraph (b) and adding new Consequently, NIH proposes to remove Accordingly, it is proposed to amend paragraphs (c) and (d) to read as follows: references to the National Center for part 63 of title 42 of the Code of Federal § 63.9 How may NIH terminate awards? Human Genome Research and section Regulations to read as set forth below. 485B of the PHS Act in paragraph (a) of * * * * * § 63.1 and in the definitions set forth in PART 63ÐTRAINEESHIPS (b) If it is determined that the awardee § 63.2 for the terms ‘‘award,’’ has committed misconduct in science, is ‘‘awardee,’’ ‘‘director,’’ and 1. The authority citation would be ineligible, has materially failed to ‘‘traineeship.’’ Also the definition of revised to read as set forth below: comply with the terms and conditions ‘‘misconduct in science,’’ as prescribed Authority: 42 U.S.C. 216, 283g(d)(2), of the award, or to carry out the purpose in the PHS regulations governing the 284(b)(1)(C), 286b–3. for which the award was made; or responsibility of awardees and 2. Section 63.1 would be amended by (c) If the awardee is convicted of a applicants for dealing with misconduct revising paragraph (a) to read as follows: felony, or an offense involving any in science, 42 CFR part 50, subpart A, illegal drug or substance, or any offense is added to § 63.2. § 63.1 To what programs do these involving a lack of financial integrity or Finally, NIH proposes to revise the regulations apply? business honesty; or references set forth in subparagraphs 8, (a) The regulations in this part apply (d) Because of programmatic changes 9, and 10 of § 63.10 to comply with to research traineeships awarded by or lack of funds. 58338 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

5. Section 63.10 would be amended elevation modifications for the National Environmental Policy Act by revising and rearranging communities listed below. The base This proposed rule is categorically unnumbered subparagraphs 8, 9, and 10 flood elevations and modified base excluded from the requirements of 44 to read as follows: flood elevations are the basis for the CFR Part 10, Environmental floodplain management measures that Consideration. No environmental § 63.101 Other HHS regulations and the community is required either to policies that apply. impact assessment has been prepared. adopt or to show evidence of being * * * * * already in effect in order to qualify or Regulatory Flexibility Act 59 FR 14508 (March 28, 1994—NIH remain qualified for participation in the The Associate Director for Mitigation Guidelines on the Inclusion of Women and National Flood Insurance Program Minorities as Subjects in Clinical Research. certifies that this proposed rule is (NFIP). Note. this policy is subject to change, and exempt from the requirements of the interested persons should contact the Office DATES: The comment period is ninety Regulatory Flexibility Act because of Research on Women’s Health, NIH, Room (90) days following the second proposed or modified base flood 201, Building 1, MSC 0161, Bethesda, MD publication of this proposed rule in a elevations are required by the Flood 20892–0161, telephone (301) 402–1770 (not a newspaper of local circulation in each Disaster Protection Act of 1973, 42 toll-free number) to obtain reference to the community. U.S.C. 4104, and are required to current version and any amendments. establish and maintain community ADDRESSES: 59 FR 34496 (July 5, 1998)—NIH The proposed base flood eligibility in the NFIP. No regulatory Guidelines for Research Involving elevations for each community are flexibility analysis has been prepared. Recombinant DNA Molecules. available for inspection at the office of Note. this policy is subject to change, and the Chief Executive Officer of each Regulatory Classification interested persons should contact the Office community. The respective addresses This proposed rule is not a significant of Recombinant DNA Activities, NIH, Suite are listed in the following table. 323, 6000 Executive Boulevard, MSC 7010, regulatory action under the criteria of Bethesda, MD 20892–7010, telephone (301) FOR FURTHER INFORMATION CONTACT: Section 3(f) of Executive Order 12866 of 496–9838 (not a toll-free number) to obtain Matthew B. Miller, P.E., Chief, Hazards September 30, 1993, Regulatory references to the current version and any Study Branch, Mitigation Directorate, Planning and Review, 58 FR 51735. amendments. 500 C Street SW., Washington, DC Executive Order 12612, Federalism ‘‘Public Health Service Policy on Human 20472, (202) 646–3461. Care and Use of Laboratory Animals,’’ Office This proposed rule involves no SUPPLEMENTARY INFORMATION: for Protection from Research Risks, NIH The policies that have federalism (Revised September 1986). Federal Emergency Management Agency implications under Executive Order proposes to make determinations of base Note. this policy is subject to change, and 12612, Federalism, dated October 26, interested persons should contact the Office flood elevations and modified base 1987. for Protection from Research Risks, NIH, flood elevations for each community Suite 3B01, 6100 Executive Boulevard, MSC listed below, in accordance with Section Executive Order 12778, Civil Justice 7507, Rockville, MD 20852–7507, telephone 110 of the Flood Disaster Protection Act Reform (301) 496–7005 (not a toll-free number) to of 1973, 42 U.S.C. 4104, and 44 CFR This proposed rule meets the obtain references to the current version and 67.4(a). applicable standards of Section 2(b)(2) any amendments. These proposed base flood and of Executive Order 12778. [FR Doc. 98–28712 Filed 10–29–98; 8:45 am] modified base flood elevations, together List of Subjects in 44 CFR Part 67 BILLING CODE 4140±01±M with the floodplain management criteria required by 44 CFR 60.3, are the Administrative practice and minimum that are required. They procedure, Flood insurance, Reporting FEDERAL EMERGENCY should not be construed to mean that and recordkeeping requirements. MANAGEMENT AGENCY the community must change any Accordingly, 44 CFR Part 67 is existing ordinances that are more proposed to be amended as follows: 44 CFR Part 67 stringent in their floodplain management requirements. The PART 67Ð[AMENDED] [Docket No. FEMA±7262] community may at any time enact stricter requirements of its own, or 1. The authority citation for Part 67 Proposed Flood Elevation continues to read as follows: Determinations pursuant to policies established by other Federal, State, or regional entities. Authority: 42 U.S.C. 4001 et seq.; AGENCY: Federal Emergency These proposed elevations are used to Reorganization Plan No. 3 of 1978, 3 CFR, Management Agency (FEMA). meet the floodplain management 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. ACTION: Proposed rule. requirements of the NFIP and are also used to calculate the appropriate flood SUMMARY: Technical information or insurance premium rates for new § 67.4 [Amended] comments are requested on the buildings built after these elevations are 2. The tables published under the proposed base (1% annual chance) flood made final, and for the contents in these authority of § 67.4 are proposed to be elevations and proposed base flood buildings. amended as follows: Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58339

Depth in feet above ground. *Elevation in feet. State City/town/county Source of flooding Location (NGVD) Existing Modified

Arkansas ...... Washington County Scull Creek ...... Approximately 250 feet upstream of con- *1,183 *1,179 and Incorporated fluence with Mud Creek. Areas. Approximately 1,650 feet upstream of *1,290 *1,294 Sycamore Street. Approximately 650 feet upstream of Col- *1,400 *1,399 lege Avenue. Clabber Creek Tributary At confluence with Clabber Creek ...... None *1,161 C±2. Approximately 2,200 feet upstream of None *1,201 confluence with Clabber Creek. Hamestring Creek Tribu- Approximately 200 feet upstream of con- None *1,192 tary HS2. fluence with Hamestring Creek. Approximately 3,200 feet upstream of None *1,237 confluence with Hamestring Creek. Clabber Creek Tributary Approximately 200 feet upstream of con- None *1,160 C±1. fluence with Clabber Creek. Approximately 1,200 feet upstream of None *1,203 confluence with Tributary C1±A. Clabber Creek Tributary Approximately 100 feet upstream of con- None *1,173 C1±A. fluence of Clabber Creek Tributary C1. Approximately 540 feet upstream of None *1,203 County Road 707. Middle Fork Hamestring Approximately 200 feet upstream of con- None *1,220 Creek. fluence with Hamestring Creek. Approximately 100 feet upstream of Por- None *1,247 ter House Road. North Fork Hamestring Approximately 20 feet upstream of con- None *1,209 Creek. fluence with Hamestring Creek. Approximately 500 feet upstream of High- None *1,256 way 71. Clabber Creek ...... Approximately 20 feet upstream of con- *1,141 *1,144 fluence with Hamestring Creek. Approximately 1,250 feet downstream of None *1,197 Thuckers Drive. Approximately 100 feet upstream of High- None *1,223 way 71. South Fork Hamestring Just above confluence with Hamestring *1,235 *1,237 Creek. Creek. Approximately 2,300 feet upstream of None *1,273 Route 71. Town Branch ...... Approximately 1,250 feet downstream of *1,192 *1,189 Armstrong Avenue. Approximately 2,00 feet upstream of None *1,273 Highway 71. Owl Creek Tributary 2 ...... At confluence with Owl Creek ...... None *1,230 Approximately 3,000 feet upstream of None *1,252 confluence with Owl Creek. Owl Creek Tributary 1 ...... At confluence with Owl Creek ...... None *1,227 Approximately 3,100 feet upstream of None *1,242 confluence with Owl Creek. Hamestring Creek ...... Approximately 200 feet downstream of None *1,118 County Road 881. Approximately 1,500 feet upstream of *1,255 *1,250 Wedington Drive. Scull Creek Tributary 2 .... At confluence with Scull Creek ...... None *1,214 Approximately 1,000 feet upstream of None *1,225 confluence with Scull Creek. Sublet Creek ...... At confluence with Scull Creek ...... *1,238 *1,232 Approximately 1,750 feet upstream of None *1,383 Sycamore Street. Scull Creek Tributary 1 .... At confluence with Scull Creek ...... None *1,195 Approximately 1,200 feet upstream of None *1,228 Futrail Drive. Hamestring Creek Tribu- At confluence with Hamestring Creek ...... None *1,236 tary HS3. Approximately 125 feet upstream of None *1,260 Mount Comfort Road. Hamestring Creek Tribu- Approximately 600 feet downstream of None *1,126 tary HS1. County Road 882. 58340 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Depth in feet above ground. *Elevation in feet. State City/town/county Source of flooding Location (NGVD) Existing Modified

Approximately 220 feet upstream of Dou- None *1,223 ble Tree Drive. Cato Springs Branch ...... At confluence with Town Branch ...... *1,218 *1,221 Approximately 2,500 feet upstream of Ar- None *1,252 kansas and Missouri Railroad. Owl Creek ...... Approximately 700 feet downstream of *1,176 *1,173 Double Springs Road (County Road 27). Approximately 2,100 feet upstream of None *1,247 Rupple Road. Mud Creek Tributary ...... At confluence with Mud Creek ...... *1,232 *1,226 Approximately 1,500 feet upstream of *1,320 *1,316 Azalea Drive. Approximately 2,400 feet upstream of *1,438 *1,443 Sycamore Street. Maps are available for inspection at the Washington County Planning Office, Four South College Avenue, Suite 205, Fayetteville, Arkansas. Send comments to The Honorable Charles A. Johnson, Washington County Judge, 280 North College Avenue, Fayetteville, Arkansas 72701. Maps are available for inspection at 113 West Mountain, Fayetteville, Arkansas. Send comments to The Honorable Fred Hanna, Mayor, City of Fayetteville, 113 West Mountain, Fayetteville, Arkansas 72701. Maps are available for inspection at 2904 Main Drive, Johnson, Arkansas. Send comments to The Honorable Richard Long, Mayor, City of Johnson, P.O. Box 563, Johnson, Arkansas 72741.

Louisiana ...... Hammond (City Ponchatoula Creek ...... Upstream of Illinois Central Gulf Railroad *45 *45 Tangipahoa bridge. Parish. Approximately 4,00 feet upstream of Yel- None *46 low Water Diversion Canal. Maps are available for inspection at the City of Hammond City Hall, 310 East Charles, Hammond, Louisiana. Send comments to The Honorable Russell DePaulo, Mayor, City of Hammond, 310 East Charles, Hammond, Louisiana

Ponchatoula (City) Ponchatoula Creek ...... At U.S. Highway 51 ...... None *17 Tangipahoa Parish Approximately 6,200 feet upstream of None *21 U.S. Highway 51 bridge. Maps are available for inspection at 125 West Hickory, Ponchatoula, Louisiana. Send comments to The Honorable Julian Dufreche, Mayor, City of Ponchatoula, 125 West Hickory, Ponchatoula, Louisiana 70454.

Tangipahoa Parish Ponchatoula Creek ...... Upstream of U.S. Highway 51 bridge ...... None *17 (Unincorporated Areas). Upstream of New Genessee Road ...... None *57 Yellow Water River Canal Downstream of U.S. Highway 190 bridge *40 *38 Approximately 1,600 feet upstream of *47 *46 Ward Line Road. Maps are available for inspection at 48589 Highway 51, Tickfaw, Louisiana. Send comments to The Honorable Gordon Burgess, Tangipahoa Parish President, P.O. Box 215, Amite, Louisiana 70422.

New Mexico ...... Portales (City Roo- Globe Ditch ...... Approximately 585 feet downstream of None +3,998 sevelt County. confluence of 17th and 18th Streets shallow flooding. At confluence of 17th and 18th Streets *3,995 +3,999 shallow flooding. 17th and 18th Streets At confluence with Globe Ditch ...... *3,995 +3,999 Shallow Flooding and Shallow Flooding Through University and Downtown Area. At downstream side of Burlington North- None +4,009 ern Railroad. Maps are available for inspection at the City of Portales, 100 West First, Portales, New Mexico. Send comments to The Honorable Don Davis, Mayor, City of Portales, 101 South Main Street, Portales, New Mexico 88130.

Texas ...... Victoria (City) Vic- Whispering Creek ...... Just upstream of John Stockbauer Drive *108 *108 toria County. Just downstream of Loop 463 ...... *116 *114 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58341

Depth in feet above ground. *Elevation in feet. State City/town/county Source of flooding Location (NGVD) Existing Modified

Approximately 3,640 feet upstream of *119 *118 Loop 463. Maps are available for inspection at the City of Victoria City Hall, 700 Main Center, Suite 115, Victoria, Texas. Send comments to The Honorable Gary Middleton, Mayor, City of Victoria, P.O. Box 1758, Victoria, Texas 77902.

(Catalog of Federal Domestic Assistance No. Because of staffing and resource is the establishment of a national data 83.100, ‘‘Flood Insurance.’’) limitations, we cannot accept comments bank to receive and disclose certain Dated: October 26, 1998. by facsimile (FAX) transmission. In final adverse actions against health care Michael J. Armstrong, commenting, please refer to file code providers, suppliers, or practitioners Associate Director for Mitigation. OIG–46–P. (see section 1128C(a)(1)(E) of the Act). [FR Doc. 98–29134 Filed 10–29–98; 8:45 am] FOR FURTHER INFORMATION CONTACT: The data bank is specifically provided BILLING CODE 6718±04±P Thomas C. Croft, (301) 443–2300, for by section 1128E of the Act (added Director, Division of Quality Assurance/ by section 221(a) of HIPAA), which BHPr/HRSA. directs the Secretary to maintain a data SUPPLEMENTARY INFORMATION: base of such final adverse actions. Final DEPARTMENT OF HEALTH AND adverse actions include: (1) civil HUMAN SERVICES I. Background judgments against a health care Office of the Secretary The National Practitioner Data Bank provider, supplier, or practitioner in Federal or State court related to the The National Practitioner Data Bank Office of Inspector General delivery of a health care item or service; (NPDB) was established under the (2) Federal or State criminal convictions Health Care Quality Improvement Act 45 CFR Part 61 against a health care provider, supplier, (HCQIA) of 1986, as amended (42 U.S.C. or practitioner related to the delivery of RIN 0991±AA98 11101). The NPDB contains adverse a health care item or service; (3) actions licensure action reports on physician by Federal or State agencies responsible Health Care Fraud and Abuse Data and dentists (including revocations, for the licensing and certification of Collection Program: Reporting of Final suspensions, reprimands, censures, health care providers, suppliers, or Adverse Actions probations and surrenders for quality practitioners; (4) exclusion of a health purposes); adverse clinical privilege AGENCY: Office of Inspector General care provider, supplier, or practitioner actions against physicians and dentists; (OIG), HHS. from participation in Federal or State adverse professional society health care programs; and (5) any other ACTION: Notice of proposed rulemaking. membership actions against physicians adjudicated actions or decisions that the and dentists; and medical malpractice SUMMARY: This proposed rule would Secretary establishes by regulations. payments made on all health care establish a new 45 CFR part 61 to Settlements in which no findings or practitioners. Groups that have access to implement the statutory requirements of admissions of liability have been made this data system include hospitals, other section 1128E of the Social Security Act, will be excluded from reporting. health care entities that conduct peer as added by section 221(a) of the Health However, any final adverse action that review and provide or arrange for care, Insurance Portability and emanates from such settlements and State Boards of Medical or Dental Accountability Act (HIPAA) of 1996. consent judgments, and that would examiners and other health care Section 221(a) of HIPAA specifically otherwise be reportable under the practitioner State boards. Individual directed the Secretary to establish a statute, is to be reported to the data practitioners are able to self-query. The national health care fraud and abuse bank. Final adverse actions are to be reporting of information under the reported, regardless of whether such data collection program for the reporting NPDB is limited to medical malpractice actions are being appealed by the and disclosing of certain final adverse payers, State licensing medical boards subject of the report (see section actions taken against health care and dental examiners, professional 1128E(b)(2)(C) of the Act). Groups that providers, suppliers, or practitioners, societies with formal peer review and have access to this new data bank and maintain a data base of final hospitals and health care entities. system include Federal and State adverse actions taken against health care government agencies; health plans; and providers, suppliers and practitioners. Establishment of the Healthcare self queries from health care suppliers, DATES: To assure consideration, public Integrity and Protection Data Bank providers and practitioners. Reporting is comments must be delivered to the The Health Insurance Portability and limited to the same groups that have address provided below by no later than Accountability Act (HIPAA) of 1996, access to the information. 5 p.m. on December 29, 1998. Public Law 104–191, requires the The range of reportable final adverse ADDRESSES: Please mail or deliver your Secretary, acting through the Office of actions specified in the statute clearly written comments to the following Inspector General (OIG) and the United indicates that Congress intended a broad address: Health Resources and Services States Attorney General, to establish a interpretation of the terms ‘‘health care Administration, Bureau of Health new health care fraud and abuse control fraud and abuse.’’ For purposes of the Professions, Division of Quality program to combat health care fraud and statute, we believe all reportable final Assurance, Room 8A–55, Attention: abuse (see section 1128C of the Act, as adverse actions include actions related OIG–46–P, 5600 Fishers Lane, enacted by section 201(a) of HIPAA). to provider, supplier and practitioner Rockville, Maryland 20857. Among the major steps in this program practices that are inconsistent with 58342 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules accepted sound fiscal, business or omissions, and injuries, upon which a maintaining the HIPDB. We are medical practices, directly or indirectly, final adverse action is based; and (6) any interpreting the term ‘‘knowledge of resulting in: (1) unnecessary costs to the other additional information deemed falsity’’ to require actual knowledge of program; (2) improper payment; (3) appropriate by the Secretary. falsity by the submitting entity. services that fail to meet professionally With respect to this last element, we II. Provisions of the Proposed Rule recognized standards of care or that are are exercising this discretion and are medically unnecessary; or (4) adverse proposing to add additional reportable These proposed regulations would patient outcomes, failure to provide data elements. The additional elements implement the requirements for covered or needed care in violation of reflect much of the information that is reporting of specific data elements to, contractual arrangements, or delays in already routinely collected by the and procedures for obtaining diagnosis or treatment. The statute also Federal and State reporting agencies. information from, the HIPDB (and are requires the Secretary to implement the Therefore, in adding these elements, the applicable to Federal and State national health care fraud and abuse Secretary believes this does not impose government agencies and health plans). data collection program in such a any additional burden on State Set forth below is a brief description of manner as to avoid duplication with the government agencies and health plans. the major provisions of the proposed reporting requirements established for Furthermore, the Secretary is protecting rule, including, among other things, the NPDB. This proposed rulemaking is health care providers, suppliers and proposed definitions for certain terms intended to establish such a fraud and practitioners from being erroneously associated with the HIPDB, a discussion abuse data bank, to be known as the identified without imposing additional of the specific reporting requirements Healthcare Integrity and Protection Data gathering burdens on reporters of and when such information must be Bank (HIPDB). information. The addition of this reported, the fees applicable to requests information also will serve to: (1) for information, the issues of the Coordination and Distinctions Between recognize the multiple purposes to confidentiality of information, and how the HIPDB and the NPDB which eligible users will apply the data, to dispute the accuracy of information With regard to the importation of such as licensing decisions by in the HIPDB. State licensing board actions reported to professional licensing boards, 1. Definitions the NPDB prior to the enactment of credentialing and contracting decisions HIPAA, we intend to include in the by health plans, and investigation by These proposed regulations would HIPDB only such NPDB information law enforcement agencies, investigative expand on previous regulatory about licensing actions which were units and health plan special definitions and clarify aspects of effective on or after August 21, 1996. In investigative units of health care fraud definitions set forth in the statute. accordance with the statute, the reporter perpetrators and schemes; (2) maximize Congress intended that the HIPDB play responsible for reporting adverse actions the accuracy of a match between the a significant role in reducing public and to the HIPDB and the NPDB will only names of queried practitioners, private health care expenditures that be asked to submit the report one time. providers, or suppliers and existing result in health care fraud and abuse, by The system is being designed to sort the reports in the HIPDB; (3) provide access alerting system users to previous appropriate actions into the HIPDB, to information about health care fraud relevant adverse actions. Therefore, we NPDB, or both. The system is being and abuse activities nationwide by believe that the reportable range of configured to account for the statutory promoting efficient coordination of activities and the individuals and differences in the type of actions and investigative efforts among insurers and entities that engage in them should as groups eligible to query the two data law enforcement agencies; (4) support broadly as possible capture the portion banks. the intent of the statute to address issues of expenditures lost each year to fraud The NPDB does not collect related to fraud and abuse, including and abuse. Towards this end, this information on Federal criminal quality of health care and patient safety; proposed rule sets forth definitions for convictions and medicare and Medicaid and (5) prevent the erroneous reporting certain terms that may appear more exclusions, except to the extent that and identifying of health care providers, expansive than some previous they lead to State licensing board, suppliers and practitioners. Through regulatory definitions. One such medical malpractice payment or this proposed rulemaking, we are example would include the definitions privilege restriction actions. Further, specifically seeking the views of Federal of health care provider and supplier. while civil judgments included in the and State officials and of health plans While definitions of these terms existed NPDB would be those that resulted in about whether the proposed information in other Departmental regulations, we malpractice payments, the HIPDB collection requirements will be believe it is significant that Congress explicitly does not include medical necessary for the proper performance of chose not to use those definitions. In malpractice civil judgments. As a result, the HIPDB system. In addition, we are fact, earlier versions of section 1128E of these items will not be part of the NPDB soliciting comments as to whether the the Act contained some of these data to be imported into the HIPDB. proposed data elements set forth in this previous definitions, but deleted them rule will be useful in preventing fraud from the final statute. The absence of Data Elements To Be Reported to the and abuse and in improving the quality these references strongly suggests that HIPDB of patient care. Congress intended that these terms be Section 1128E(b)(2) of the Act cites a developed based on the breadth of number of required elements or types of Immunity Provisions Under the HIPDB health care expenditures in mind when data that must be reported to the HIPDB. Immunity provisions in section applied to the HIPDB program. We These elements include: (1) the name of 1128E(e) of the Act protect individuals believe these expanded definitions are the individual or entity; (2) a taxpayer and entities from being held liable in fully consistent with congressional identification number; (3) the name of civil actions for reports made to the intent and accurately reflect the range of any affiliated or associated health care HIPDB unless they have knowledge of subjects and activities currently entity; (4) the nature of the final adverse the falsity of the information contained considered by government agencies and action, and whether the action is on in the report. The statute provides health plans in fraud and abuse appeal; (5) a description of the acts or similar immunity to the Department in prevention efforts. This proposed rule Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58343 also, in certain instances, clarifies (6) other Federal or State agencies terms—as well as the term existing statutory definitions. These responsible for the licensing and ‘‘practitioner’’ defined below—are not clarifications merely provide additional certification of health care providers, intended to describe distinct, mutually examples of the scope of the definitions, suppliers, or licensed health care exclusive categories nor are the but do not go beyond the range that practitioners. Examples of such State examples provided in this section Congress intended. agencies include Departments of intended to be exhaustive. We believe As a result, in § 61.3 of these Professional Regulation, Health, Social that these overlapping roles do not regulations, we are proposing the Services (including State Survey and necessarily represent the categories in inclusion of the following definition of Certification and Medicaid Single State which subjects’ information will be terms— agencies), Commerce, and Insurance. collected, maintained and disseminated We believe there are two key aspects A. Affiliated or Associated in the HIPDB. each State may need to consider with Accordingly, in keeping with The term ‘‘affiliated or associated’’ respect to the data: who will report such congressional intent that the would include, but would not be information and how the information Department coordinate this program limited to, health care entities such as will be reported to the data bank. First, closely with the NPDB, we would define organizations, associations, with respect to who is to report, we the term ‘‘health care provider’’ to mean corporations, or partnerships that are invite comments from States delineating (1) a provider of services as defined in affiliated or associated with a subject of specific agencies that are responsible for section 1861(u) of the Act; (2) any a final adverse action. It also would the licensing and certification of health health care entity (including a health include a professional corporation or care providers, suppliers and maintenance organization (HMO), other business entity composed of a practitioners that will be subject to the preferred provider organization, single individual. For example, if the section 1128E reporting requirements. ambulatory care clinic and group subject is an individual, the affiliated or In addition, we invite comments medical practice) that provides health associated health care entities would identifying the specific State law care services and follows a formal peer include, among other things, the enforcement agencies that will be review process for the purpose of subject’s employer, businesses owned or responsible for reporting to the HIPDB. furthering quality health care; and (3) managed by the subject, partnerships, Second, we also recognize the States’ and any other health care entity that, memberships in health maintenance prerogative in determining the manner directly or through contracts, provides organizations or health care networks, in which they will report. For example, health care services. That definition or institutions granting the subject one option may be that States may elect encompasses institutional providers clinical privileges. If the subject is an to have one centralized point for such as hospitals, home health care entity, its affiliated or associated entities reporting, or elect to have multiple agencies, skilled nursing facilities, and would include parent corporations, agencies (including, at their option, comprehensive outpatient rehabilitation subsidiaries, and joint ventures, among municipalities, county agencies and facilities. other things. We believe that this local law enforcement agencies such as ‘‘Health care supplier’’ would be definition supports congressional intent District and County attorneys ) report defined as a provider of medical and to enable authorized users who are independently to the HIPDB. Another other health care services, as described conducting fraud and abuse option for reducing the reporting burden in section 1861(s) of the Act, and would investigations to identify other business of State licensing and certification include Medicare facilities and affiliations through which the subject boards would be to have their respective practitioners as well as medical may have committed other acts of professional organizations serve as their equipment suppliers (including clinical wrongdoing and to aid with subject authorized agents for reporting to the laboratories, certain licensed or certified identification. Inclusion of an entity in HIPDB. It has been brought to our health care practitioners, and suppliers this category by a reporter would in no attention that similar data reports are of durable medical equipment). In way imply that the entity was a party to being provided to the professional addition, to ensure that this definition the act(s) or omission(s) that led to a organizations. The ability to report the captures other entities that may be the reportable final adverse action. same information one time through a subject of health care fraud designated authorized agent would investigations by the State or Federal B. Government Agency streamline State reporting. We believe Government or health plans, this term The definition of the term this would be an acceptable option for would further include any individual or ‘‘government agency’’ is set forth in meeting reporting obligations of State entity, other than a provider, who accordance with section 1128E(g)(3) of boards and is raised for consideration furnishes or provides access to health the Act, and would serve to set out the when meeting their reporting care services, supplies, items or range of government agencies that are obligations to the HIPDB. We invite ancillary services (including, but not required to report to, and authorized to comments from each State regarding the limited to, durable medical equipment receive information from, the HIPDB. manner in which it intends to report to suppliers and manufacturers of health For purposes of these regulations, the the HIPDB. care related items; pharmaceutical term ‘‘government agency’’ would suppliers and manufacturers; health include, but would not be limited to: (1) C. Health Care Provider and Health Care record services, such as medical, dental the Department of Justice; (2) the Supplier and other patient records; health data Department of Health and Human The statute does not define the terms suppliers; and billing and transportation Services; (3) any other Federal or State ‘‘health care provider’’ and ‘‘health care service suppliers), and any individual or agency that either administers or supplier’’ for purposes of this data bank. entity under contract to provide health provides payment for the delivery of Since there is considerable overlap in care supplies, items or ancillary health care services ( including, but not the roles of practitioners, providers and services, and any group, organization or limited to, the Department of Defense suppliers (e.g., a skilled nursing facility company providing health benefits and the Department of Veterans Affairs); is an institutional provider, but also can whether directly, or indirectly through (4) State law enforcement agencies; (5) be a supplier of health care items and insurance, reimbursements or State Medicaid Fraud Control Units; and equipment), we believe that these otherwise. The term ‘‘health care 58344 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules supplier’’ also would include, but of the term ‘‘health plan’’ since health includes, but is not limited to, would not be limited to, insurance plans are generally offered by physicians, nurses, chiropractors, producers, such as agents, brokers, organizations, and we believe that podiatrists, emergency medical solicitors, consultants and reinsurance Congress intended those organizations technicians, physical therapists, intermediaries; insurance companies; to be users of the HIPDB. In addition, pharmacists, clinical psychologists, self-insured employers; and health care credential reviews and fraud acupuncturists, dieticians, aides, and purchasing groups or entities. investigations are often conducted at the licensed or certified alternative This definition of ‘‘health care corporate level by organizations offering medicine practitioners such as supplier’’ reflects congressional intent and managing managed care plans or homeopaths and naturopaths. that the Government not pay for items other health benefit plans or services. and services of untrustworthy We also are including in this F. Other Adjudicated Actions or individuals and entities, regardless of definition additional examples of other Decisions whether the individual or entity is paid health plans which reflect both the wide We are including a definition to by the programs directly or whether the variety of health benefit plans that are clarify the types of ‘‘other adjudicated items and services are reimbursed currently offered and the wide range of actions or decisions’’ that Congress indirectly through claims of a direct organizations that provide them. These authorized the Department to collect provider. Individuals and entities that examples include employers or other under section 1128E(g)(A)(v) of the Act. provide such indirect services have a organizations that provide health care We believe that this term should significant impact on the cost and benefits for their employees or encompass actions that are consistent quality of health care, and have been the members, provider/supplier/practitioner with the characteristics of the specific subject of final adverse actions related groups that offer health care benefit final adverse actions already listed in to health care fraud and abuse. plans under contract with an the statute. Accordingly, the term ‘‘other organization, and organizations that sell adjudicated actions or decisions’’ would D. Health Plan health care insurance. We invite public refer to an official action taken by a The definition of the term ‘‘health comment on the inclusion of additional Federal or State governmental agency or plan’’ in section 1128E of the Act is not examples in this listing for purposes of health plan against a health care meant to be exclusive or exhaustive. clarification and guidance. provider, supplier, or practitioner based Rather, by using the word ‘‘includes,’’ In addition, to more clearly define on acts or omissions that affect, or could the statutory definition contemplates this term, we are including two significantly affect, the delivery of a that additional entities may be clarifying phrases in the regulatory health care item or service. For example, recognized as ‘‘health plans’’ if they definition. First, we would add the an official action taken by a Federal or meet the basic definition of ‘‘providing word ‘‘reimbursement’’ to the State governmental agency includes, but health benefits.’’ Thus, health plans may description of the methods by which is not limited to, a personnel-related include those plans funded by Federal health plans provide benefits. For action such as suspensions without pay, and State governments, including example, some employers directly reductions in pay, reductions in grade, Medicare, Medicaid, the Department of reimburse employees for their health terminations or other comparable Defense, the Department of Veterans care expenditures through a voucher actions. A hallmark of any valid Affairs, the Federal Employees Health system. We also propose including the adjudicated action or decision is the benefits Plan of the Office of Personnel phrase ‘‘but is not limited to’’ to the existence of a due process mechanism. Management, and the Bureau of Indian description of types of arrangements In general, if an ‘‘adjudicated action or Affairs programs. Under these included in the definition. We believe decision’’ follows an agency’s regulations, the term ‘‘health plan’’ that this clarification of the statutory established administrative procedures would be defined as a plan, program or language is important to ensure that, as (which ensure due process is available organization that provides health arrangements and mechanisms used by to the subject of the final adverse benefits, whether directly or through health plans to provide health care action), it would qualify as a reportable insurance, reimbursement or otherwise. benefits evolve, they will not be action under this definition. For health The term would include, but would not excluded by the language in the plans that are not government entities, be limited to: (1) a policy of health definition. an action taken following adequate insurance; (2) a contract of a service notice and hearing requirements that E. Licensed Health Care Practitioner, benefit organization; (3) a membership meet the standards of due process set agreement with an HMO or other Licensed Practitioner, and Practitioner out in section 412(b) of the HCQIA (42 prepaid health plan; (4) a plan, program While section 1128E of the Act refers U.S.C. 11112(b)) also would qualify as a or agreement established, maintained or to the terms health care ‘‘provider, reportable action under this definition. made available by an employer or group practitioner or supplier’’ as the subject Under section 412(b) of HCQIA, the of employers, a practitioner, provider or of reports to the HIPDB, the statute only procedure should involve provision (or supplier group, third-party provides a definition of ‘‘practitioner.’’ voluntary waiver by the subject) of the administrator, integrated health care We are proposing to define notice of the proposed action, notice of delivery system, employee welfare ‘‘practitioner’’ consistent with section a hearing, and conduct of the hearing. association, public service group or 1128E(g)(2) of the Act. As a result, for The fact that a subject elects not to use organization, or professional purposes of these regulations, with the due process mechanism provided by association; and (5) an insurance respect to a State, a ‘‘licensed health the authority bringing the action is company, insurance service, self- care practitioner,’’ a ‘‘licensed immaterial, as long as such a process is insured employer or insurance practitioner’’ or ‘‘practitioner’’ would available to the subject before the organization which is licensed to engage mean an individual who is licensed or adjudicated action or decision is made in the business of selling health care otherwise authorized by the State to final. insurance in a State and which is provide health care services (or any In these regulations, the word subject to State law which regulates individual who, without authority, ‘‘adjudicated’’ is not viewed as a health insurance. We have added the holds himself or herself out to be so restriction that limits these actions only word ‘‘organization’’ to the description licensed or authorized). This definition to those resulting from a governmental Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58345 judicial process. Rather, the word business or medical practices which in these sections, we also would list implies that in order for an action or directly or indirectly may result in (1) data elements that should be reported to decision to be reportable it must adhere unnecessary costs to the program; (2) the data bank when known. to basic guidelines of due process. improper payment; (3) services that fail It should be noted, however, that the Examples of ‘‘other adjudicated actions to meet professionally recognized statute requires the reporting and or decisions’’ include administrative standards of care or are medically disclosure of Social Security numbers agency sanctions and clinical privilege unnecessary; or (4) services that directly and Federal Employer Identification actions. or indirectly result in adverse patient numbers. Specifically, section We believe that any final adverse outcomes or delays in appropriate 1128E(b)(2)(A) of the Act mandates that action included in accordance with this diagnosis or treatment. We believe Federal and State government agencies language must be final, have been health care abuse also would include and health care plans collect and report subject to adjudication, and be related to verbal, sexual, physical or mental abuse, Social Security numbers and Federal delivery of a health care item or service. corporal punishment, involuntary Employer Identification numbers for the We also believe that the inclusion of seclusion or patient neglect, or purposes of reporting to the HIPDB. As actions taken against a practitioner’s misappropriation of patient property or a result, the Secretary intends to request clinical privileges, including those funds. We specifically invite comments Social Security numbers and Federal taken by health plans, should be on whether a definition of the term Employer Identification numbers for all included if they meet the above tests. ‘‘health care abuse’’ should be included reporters and queriers requiring explicit Discussions with health plan in the regulations and, if so, what matching of specific names to HIPDB representatives, and examination of definition would most clearly capture adverse action reports. We recognize the reporting patterns by health plans to the the range of reportable final adverse possibility that providing these NPDB, indicate that health plans do take actions specified by Congress. identifiers for purposes of requesting final actions against a practitioner’s For health plans that are not information may present a burden for clinical privileges which meet these government entities, an action taken some classes of users. However, the three criteria. It should be noted that following adequate notice and hearing collection of Social Security numbers final adverse actions taken against requirements that meet the standards of and Federal Employer Identification clinical privileges must result from acts due process set out in section 412(b) of numbers will provide a greater of commission or omission related to the HCQIA also would qualify as a confidence level in the system’s professional competence or professional reportable action under this definition. matching algorithm of health care conduct. Matters unrelated to the Under section 412(b) of the HCQIA, the providers, suppliers and practitioners. It professional competence or professional procedure should involve provision (or also will maximize the system’s ability conduct of a health care practitioner voluntary waiver by the subject) of to prevent the erroneous reporting and resulting in a final adverse action notice of the proposed action, notice of disclosure of health care providers, against clinical privileges should not be a hearing and conduct of the hearing. suppliers and practitioners. The proper reported to the HIPDB. We believe that matching of individuals based on 2. When Information Must be Reported in the absence of statutory language personal identifiers, such as Social regarding the definition of The statute requires that Federal and Security numbers, strengthens the ‘‘adjudicated,’’ this interpretation State government agencies and health State’s ability to detect individuals who recognizes the evolving mechanisms by plans report final adverse actions move from State to State without which final adverse actions are taken by ‘‘regularly but not less often than disclosure or discovery of previous reporting entities, such as State agencies monthly.’’ Because an exclusion or damaging performance. and health plans, to protect the public licensing action may be effectuated at a 3. Reporting Errors, Omissions, against health care fraud and abuse. later date than when the action is Revisions and Actions on Appeal Moreover, it recognizes the substantial actually taken, we are proposing giving shift in care from inpatient facilities to maximum flexibility to agencies in Section 1128E (c)(2) of the Act the outpatient arena and the reporting final adverse actions in a requires that each government agency concomitant shift in the meaning of timely manner. According, we are and health plan report corrections to ‘‘clinical privileges’’ from that proposing in § 61.5 that information be information previously submitted to the associated with inpatient care, to that submitted to the HIPDB within 30 HIPDB in such form and manner as the associated with outpatient care, calendar days from (1) the date the final Secretary prescribes by regulation. especially in the managed care setting. adverse action was taken, (2) the date Accordingly, the HIPDB has been In addition to proposing these when the reporting entity became aware designed to comply with the statutory definitions in § 61.3, we also have of the final adverse action, or (3) by the requirements and the Department’s contemplated including a definition for close of the entity’s next monthly principles of fair information practice. the term ‘‘health care abuse.’’ The reporting cycle, whichever is later. To In proposed § 61.6 of these regulations, statute does not define this term, and we capture any differing dates, the date of we are indicating that if any errors or are electing not to define the term at this the final adverse action was taken, its omissions in the final adverse action are time. The range of reportable final effective date and duration would all be discovered after the information has adverse actions specified in the statute contained in the information reported to been reported, the person or entity that suggests that the Congress intended a the HIPDB to be set forth in our reported such information must send an broad interpretation of ‘‘health care discussion of the specific reporting addition or correction to the HIPDB abuse.’’ There is wide variation in the requirements in proposed §§ 61.7, 61.8, within 60 calendar days of the term’s meaning within the law 61.9, 61.10 and 61.11 below. discovery. Any revision to the action or enforcement and health care We acknowledge that reporters to appeal status must similarly be communities. For the purposes of this currently may not be able to provide all reported within 30 calendar days after statute, we believe ‘‘health care abuse’’ of the proposed data elements. We are the reporting entity learns of such relates to provider, supplier and proposing to set forth in §§ 61.7, 61.8, revision. In turn, as indicated above, practitioner practices that are 61.9, 61.10, and 61.11 a list of each subject of a report will receive a inconsistent with accepted sound fiscal, mandatory data elements. In addition, copy when it is entered into the HIPDB 58346 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules and a copy of all revisions and means to exclude questionable health for the NPDB under the HCQIA. corrections to the report. It should be care providers, suppliers and Consistent with congressional intent, we noted that this is not an opportunity for practitioners from participating in will ensure that the reports required the subjects to request readjudication of Federal and State health care programs. under both Acts will only be required to their cases; it is only for the reporting These voluntary surrenders and non- be reported once. entity to correct any errors or omissions renewal actions result in allowing 5. Reporting Federal or State Criminal in the information. health care providers, suppliers or Convictions Related to the Delivery of a practitioners to move from State to State 4. Reporting Licensure Actions Taken by without detection. Therefore, for Health Care Item or Service Federal or State Licensing and reporting purposes, the term ‘‘voluntary Under section 1128E(g)(i)(A)(ii) of the Certification Agencies surrender’’ is defined to include a Act, Federal and State law enforcement Under section 1128E(g)(1)(A)(iii) of surrender made after a notification of and investigative agencies must report the Act, Federal and State licensing and investigation or a formal official request criminal convictions against health care certification agencies must report to the by Federal or State licensing or providers, suppliers, or practitioners. HIPDB all of the following final adverse certification authorities for a health care Because the statute requires that a actions that are taken against a health provider, supplier or practitioner to criminal conviction must be related to care provider, supplier, or practitioner— surrender the license or certification the delivery of a health care item or (1) Formal or official actions, such as (including certification agreements or service to be reportable, we believe that revocation or suspension of a license contracts for participation in Federal or the congressional intent is to limit the (and the length of any such suspension), State health care programs). The types of convictions reported to the reprimand, censure, or probation; definition also includes those instances HIPDB. Thus, under proposed § 61.8, we (2) Any other loss of the license or the where a health care provider, supplier are indicating that criminal convictions right to apply for, or renew, a license of or practitioner voluntarily surrenders a unrelated to the delivery of health care the provider, supplier, or practitioner, license or certification (including items or services would not be reported whether by operation of law, voluntary program participation agreements or under this section. surrender, non-renewability, or contracts) in exchange for a decision by 6. Reporting of Civil Judgments in otherwise; and the licensing or certification authority to Federal or State Court Related to the (3) Any other negative action or cease an investigation or similar finding by such Federal or State agency proceeding, or in return for not Delivery of a Health Care Item or that is publicly available information. conducting an investigation or Service Proposed § 61.7 is intended to address proceeding, or in lieu of a disciplinary In accordance with section these reporting licensure actions taken action. We are seeking guidance and 1128E(g)(1)(A)(i) of the Act, proposed by Federal and State licensing and public comment on the frequency of § 61.9 would indicate that Federal and certification agencies. In § 61.7, the such actions taken in lieu of sanctions, State law enforcement and investigative phrase ‘‘other negative action or as well as the utility of such information agencies, and health plans must report finding’’ by a Federal or State licensing to eligible queriers of the HIPDB. civil judgments related to the delivery of and certification authority would mean We recognize that many voluntary a health care item or service (except any action or finding that is publicly surrenders are not a result of the type those resulting from medical available and rendered by a licensing or of adverse action that are intended for malpractice) against health care certification authority. These actions or inclusion in the HIPDB. Therefore, we providers, suppliers or practitioners. findings include, but are not limited to, are proposing that voluntary surrenders Civil judgments must be entered or imposition of civil money penalties and licensure non-renewals due to approved by a Federal or State court. (CMPs) and administrative fines, nonpayment of licensure fees, changes This reporting requirement does not limitations on the scope of practice, to inactive status and retirements be include Consent Judgments that have injunctions and forfeitures. excluded from reporting to the HIPDB been agreed upon and entered to This definition also would include unless they are taken in combination provide security for civil settlements in final adverse actions occurring in with one or more of the circumstances which there was no finding or conjunction with settlements in which listed above, in which case they would admission of liability. no findings or admissions of liability be reportable. have been made, and that would In addition, we note that the NPDB 7. Reporting Exclusion From otherwise be reportable under the currently receives adverse action reports Participation in Federal or State Health statute. By defining ‘‘other negative on sanction and disciplinary actions Care Programs action or finding’’ in this way, we concerning physicians and dentists Proposed § 61.10, in accordance with believe that Federal or State licensing related to professional competence or section 1128E(g)(1)(A)(iv) of the Act, and certification authorities will conduct. Under section 1128E of the states that the Office of Inspector accommodate State to State variation Act, however, the only limitation on a General (OIG) must report health care when determining adverse actions in reportable disciplinary action is that it providers, suppliers or practitioners reporting negative actions or findings to must be a formal or official action; it excluded from participating in Federal the HIPDB, provided that those actions need not be specifically related to or State health care programs. This or findings are available publicly. professional competence or conduct. includes exclusions that were made in The statute specifically requires The Department recognizes that a matter in which there also was a reporting of a health care provider, licensure actions reported by Boards of settlement that is not reported because supplier or practitioner who voluntarily Medical and Dental Examiners no findings or admissions of liability surrenders a license or certification. concerning physicians and dentists in had been made. Based on extensive discussions with the NPDB overlap with the reportable various State agencies, we have been actions under this statute. Therefore, we 8. Reporting Other Adjudicated Actions advised that voluntary surrender and are proposing to implement this section or Decisions non-renewal of licensure and provider in a manner to avoid duplication with Proposed § 61.11 would address the participation agreements are used as the reporting requirements established reporting of other adjudicated actions or Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58347 decisions. Although not specifically 10. Confidentiality of HIPDB and revising disputed information in a required by the statute, we believe that Information previously submitted report. The subject ‘‘any other adjudicated actions or Proposed § 61.14 addresses the may dispute only the factual accuracy of decisions’’ should relate to the delivery confidentiality requirements that would the information contained in the HIPDB of a health care item or service, as do apply to all information obtained from report concerning the individual or criminal convictions and civil the HIPDB. We believe that these entity. We note that the Secretary will judgments collected under the statute. confidentiality requirements are clearly not review issues regarding the merits of In addition, we are proposing in this specified in sections 1128E(b)(3) and the case, or the due process that the subject received. The dispute process section that a due process mechanism is (d)(1) and 1128C(a)(3)(B)(ii) of the Act. available with all adjudicated actions or affords the subject an opportunity to Specifically, section 1128E(b)(3) of the decisions. Examples of an adjudicated bring relevant factual information, Act requires the Secretary to protect the action or decision would include, but including reversals of criminal privacy of individuals receiving health would not be limited to, orders by an convictions by an appeals court, to the care services when determining what administrative law judge, CMPs and attention of the reporter. If the reporter information is required. Section assessments, revocations, debarments or does not revise the information, the 1128E(d)(1) of the Act provides that other restrictions from participating in subject can request in writing, within 60 information in the HIPDB will be Federal or State government contracts or calendar days after receipt of the report, available to Federal and State programs, liquidation, dissolution, that the Secretary review the matter. government agencies and health plans. license cancellation, or revocations or After such review, the Secretary can limitations on clinical privileges or staff Section 1128C(a)(3)(B)(ii) of the Act remove the dispute status, correct the privileges by a health plan. We believe requires the Secretary to assure that information, leave the information that this definition encompasses actions HIPDB information is provided and unchanged, void the report from the that are consistent with the utilized in a manner that appropriately HIPDB or add a statement to the record characteristics of the specific final protects the confidentiality of the for reports that are not voided. This adverse actions already defined by information. As a result, we are dispute process is consistent with that statute. proposing that information from this for the NPDB. system be confidential and disclosed 9. Fees Applicable to Requests for only for the purpose for which it was 12. Sanctions for Failure To Report Information provided. Appropriate uses of the In addition to addressing the Section 61.13 proposes fees that information would include the provisions from section 221(a) of Public would apply to all requests for prevention of fraud and abuse activities Law 104–191, we also are proposing to information from the HIPDB. However, and improving the quality of patient incorporate into these regulations the for purposes of verification and dispute care. new CMP sanctions provision for failure resolution, the HIPDB does intend to We believe that this proposed to report information to the data bank, provide a copy—automatically, without provision does not go beyond the as set forth in section 4331 of Public a request and free of charge—of every requirements set forth in the Act. The Law 105–33, the Balanced Budget Act of record to the health care provider, requirements would not prevent an 1997. As a result, in §§ 61.9(d) and supplier or practitioner who is the authorized user from sharing 61.11(d) we are indicating that any subject of the report. The Act exempts information from the HIPDB within the health plan that fails to report Federal agencies from these fees. entity that requested it, as long as the information on a final adverse action The fees to be charged would be based information is used solely for the that is required to be reported will be on the full costs of operating the purpose for which it was provided. subject to a CMP of not more than database, as authorized in section However, in accordance with section $25,000 for each such adverse action not 1128E(d)(2) of the Act; criteria for 1128E(b)(3) of the Act, information reported. Such penalty would be assessing fees would be based on the obtained by a government contractor, imposed and collected in the same guidelines set forth in OMB Circular A– e.g., a Medicare carrier, an intermediary manner as CMPs under section 1128A(a) 25. These costs would encompass all or auditor, may only be used in the of the Act. We also intend to amend 42 direct and indirect costs of disclosure furtherance of its contractual CFR part 1003 in separate rulemaking to and of providing such information, responsibilities and in conformity with reflect this new CMP authority. including but not limited to, (1) direct protecting the identity of individuals III. Implementation Schedule and indirect personnel costs; (2) receiving health care services. physical overhead, consulting, and We recognize that this data bank is Implementation of these regulations other indirect costs; (3) agency subject to the Privacy Act (5 U.S.C. will be incremental and will begin by management and supervisory costs; and 552a), which protects the privacy of first including the following actions: (1) (4) costs of enforcement, collection, individually identifiable records held by final adverse licensure actions taken research, establishment, regulations and a Federal agency that relate to the against health care practitioners by guidance. For maximum efficiency, we subject of the final adverse action. We Federal or State agencies responsible for intend for the HIPDB to be an all- will publish a notice for public the licensing and certification of such electronic system, with all fees collected comment for purposes of establishing a practitioners; (2) Federal criminal through the most cost-effective methods Privacy Act exception for the HIPDB. convictions and civil judgments related (such as credit card and electronic funds We are not including in the data bank to the delivery of health care items or transfer). any individually identifiable patient services against health care providers, While these regulations are intended records. suppliers or practitioners; and (3) to set forth the criteria for establishing exclusions of health care providers, the fees and the procedures for 11. How To Dispute the Accuracy of suppliers or practitioners from establishing and collecting fees, the HIPDB Information participation in Federal and State health actual amounts of the fees will be Section 61.15 of these proposed care programs. This phased-in process published in periodic notices issued by regulations sets forth the procedures for does not exempt reporters from the Department in the Federal Register. submitting a statement, filing a dispute, collecting and maintaining information 58348 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules required under the statute as of August effects on the economy, inconsistency been taken. According to the National 21, 1996. It also affords the reporter an with other agency actions, effects on the District Attorneys Association, the opportunity to internally develop a budget, or novel legal or policy issues, annual number of criminal convictions mechanism for collecting all mandatory require special analysis. We believe that is approximately 13 per State and civil data elements. The Department will the resources required to implement the judgments are approximately 9 per State announce through issuance of notice(s) requirements in these regulations would each year. Based on the reporting in the Federal Register a schedule when be minimal. Consistent with the statute, patterns of health plans to the NPDB, we reporters are to begin reporting to, and these proposed regulations identify also believe that less than 0.1 percent when information will be available certain data elements for reporting that (19) of the estimated 20,000 health plans from, the HIPDB. Reporters to both the are mandatory and specify other will report to the HIPDB each year. As HIPDB and the NPDB will not be discretionary data elements for such, we do not anticipate that the data required to report their actions reporting. Many of the mandatory and collection process will have a separately to each data bank. A revised discretionary data elements being set significant impact on State government reporting form will be used to forth in this proposed rulemaking are agencies and health plans, and we accommodate both systems, thus only already collected and maintained on a believe that this rule would not have a requiring one report of each action that routine basis for a variety of purposes, major effect on the economy or on is reportable to both the HIPDB and the and should not result in additional costs Federal and State expenditures. NPDB when this form is approved by or in new and significant burdens on Additionally, in accordance with the the Office of Management and Budget in reporting entities. In consultation with Unfunded Mandates Reform Act of accordance with the Paperwork States, the Department has been made 1995, we have determined the only Reduction Act of 1995. aware that States routinely collect and costs (which we believe will not be All final adverse action information as maintain much of this information and significant) would include the ability to of August 21, 1996 will be reported to are already reporting information on transmit the information electronically the HIPDB. health care practitioners to the NPDB. (e.g., Internet service) and additional staff hours needed to transmit the IV. Regulatory Impact Statement Many licensing boards also routinely collect and report much of this information. While we do not have Executive Order 12866, the Unfunded information to national organizations sufficient information at this time to Mandates Reform Act and the such as the National Council of State provide estimates of the number of State Regulatory Flexibility Act Boards of Nursing, Federation of agencies impacted, the State licensing Chiropractic Licensing Boards, and certification agencies have The Office of Management and Budget estimated that the initial start-up cost (OMB) has reviewed this proposed rule American Association of State Social Work Boards, Federation of State will be $5,000 per State licensing and in accordance with the provisions of certification agency ($5,000 per State Executive Order 12866 and the Medical Boards and the Association of × State and Provincial Psychology Boards. licensing and certification agency 216 Regulatory Flexibility Act (5 U.S.C. State agencies=$1,080,000). The 601–612), and has determined that it In addition, State Survey and Certification agencies also are required Department estimates that the initial does not meet the criteria for a start-up cost will be less than $100 per significant regulatory action. Executive to report adverse information to HCFA × on certain health care providers, health plan ($100 per health plan Order 12866 directs agencies to assess 20,000 health plans=$2,000,000). suppliers and practitioners. all costs and benefits of available Section 221(a) of HIPAA intends that Additionally, on a continuous basis, the regulatory alternatives and, when the Federal government will not incur OIG routinely collects and maintains rulemaking is necessary, to select any costs for the operation and sanction data on health care providers, regulatory approaches that maximize maintenance of the HIPDB; user fees are suppliers and practitioners excluded net benefits (including potential intended to cover the full costs of the from government health care programs. economic, environmental, public health, HIPDB. For the reasons stated above, the Since we recognize that some classes of safety, distributive and equity effects). Department has determined that this reporters may not collect or maintain The Unfunded Mandates Reform Act, rule does not impose any mandates on the full array of data elements Public Law 104–4, requires that State, local or tribal governments, or the agencies prepare an assessment of contemplated for inclusion into the data private sector that will result in an anticipated costs and benefits on any bank (e.g., names of affiliated or annual expenditure of $100 million or rulemaking that may result in an annual associated health care entities, or a DEA more, and that a full analysis under the expenditure by State, local or tribal registration number), we are classifying Act is not necessary. government, or by the private sector of certain data elements to be reported In addition, in accordance with the $100 million or more. In addition, under when known. We intend not to impose Regulatory Flexibility Act of 1980 the Regulatory Flexibility Act, if a rule new or added burdens on reporters and (RFA), and the Small Business has a significant economic effect on a are proposing to give reporters the Regulatory Enforcement Act of 1996, substantial number of small entities, the option of omitting certain discretionary which amended the RFA, we are Secretary must specifically consider the data elements that they do not maintain required to determine if this rule will economic effect of a rule on small or to which they do not have access. have a significant economic effect on a entities and analyze regulatory options We have determined that this substantial number of small entities that could lessen the impact of the rule. proposed rulemaking would not meet and, if so, to identify regulatory options Executive Order 12866 requires that the criteria for a major rule, as defined that could lessen the impact. For all regulations reflect consideration of by Executive Order 12866. As indicated purposes of this rule, we have defined alternatives, costs, benefits, incentives, above, these proposed regulations are small entities as nonprofit organizations equity, and available information. designed to establish procedures for and local government agencies; Regulations must meet certain reporting to and releasing from the individuals and States are not included standards, such as avoiding unnecessary HIPDB, information on health care in this definition of small entities. burden. Regulations that are providers, suppliers or practitioners Although the statute does not specify ‘‘significant’’ because of cost, adverse against whom final adverse actions have local government agencies as reporters, Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58349 we also have given States the option to examination of reporting patterns of Collection of Information: The decide the manner in which they will health plans to the NPDB, we also Healthcare Integrity and Protection Data report, i.e., having one centralized point believe that less than 0.1 percent (19) of Bank for Final Adverse Information on for reporting or having multiple the estimated 20,000 health plans will Health Care Providers, Suppliers and agencies such as municipalities and report to the HIPDB each year. As a Practitioners. local government agencies (including result, we have determined that this rule Description: Information collected District and County attorneys) report would affect less than 100 nonprofit and under §§ 61.6, 61.7, 61.8, 61.9, 61.11, independently to the HIPDB. If States local government agencies overall. 61.12 and 61.15 of this proposed rule elect to have multiple agencies reporting Thus, the Secretary certifies that these would be used by authorized parties, independently to the HIPDB, we have proposed regulations would not have a specified in the proposed rule, to determined that both the burden and significant impact on a substantial prevent health care fraud and abuse costs associated with reporting to the number of small entities. activities and to improve the quality of HIPDB will be minimal. According to patient care. Paperwork Reduction Act the National District Attorneys Description of Respondents: Federal Association, there are approximately This proposed rule contains and State government agencies and 2,700 District Attorneys throughout the information collection requirements health plans. The reports from Federal country and, as indicated above, there necessitating clearance by OMB. As agencies are not subject to the PRA. are approximately 13 criminal required by the Paperwork Reduction Estimated Annual Reporting: The convictions per State each year related Act (PRA) of 1995 (44 U.S.C. 3507(d)), Department estimates that the public to health care violations and 9 civil the Department has submitted a copy of reporting burden for this proposed rule judgments per State each year related to this proposed rule to OMB for its review is 132,733 hours. health care violations. Based on of these information collection The estimated annual reporting and discussions with health plans and requirements. querying burden is as follows:

Hours per Section No. Number of Responses Total response Total burden respondents per respond't responses (min) hours

§ 61.6, Errors & Omissions ...... 1 1,200 1 1,200 25 500 § 61.6, Revisions/Appeal Status ...... 1 1,000 1 1,000 75 1,250 § 61.7: Licensure Actions: Disclosure by State Licensing Boards ...... 2 1,836 3 5,500 75 6,875 Reporting by State Licensing Authorities ...... 216 25.46 5,500 15 1,375 § 61.8, Criminal Convictions ...... 3 54 13 700 75 875 § 61.9, Civil Judgments ...... 4 62 8 500 75 625 § 61.11, Other Adjudicated Action or Decision ...... 5 66 12 800 75 1,000 § 61.12: Queries ...... 6 5,601 201 1,127,512 5 93,959 Self-queries ...... 60,000 1 60,000 25 25,000 Entity verification ...... 7 5,000 1 5,000 10 833 Entity update ...... 250 1 250 5 20 § 61.12, Authorized agent designation 8 ...... 100 1 100 10 16 § 61.12, Authorized agent designation update ...... 5 1 5 5 0.42 § 61.15: Disputed Reports & Secretarial Review Initial Request ...... 9 750 1 750 10 125 Request for Secretarial Review ...... 37 1 37 480 296

Total ...... 76,177 1,208,854 132,749 1 Section 61.6 requires each government agency or health plan that reports information to the HIPDB to ensure the accuracy of the informa- tion. If there are any errors or omissions to the reports previously submitted to the HIPDB, the individual or entity that submitted the report to the HIPDB is also responsible for making the necessary correction or revision to the original report. If there is any revision to the action or the action is on appeal, the individual or entity that submitted the original report to the HIPDB is also responsible for reporting revisions and whether the ac- tion is on appeal. Based on corrections and revisions made to information contained in the NPDB, we have estimated that a total of 1,200 re- spondents will need to correct their reports each year and that a total of 1,000 respondents will need to revise actions originally reported, or to report whether an action is on appeal each year. Based on experience with the NPDB, a correction is expected to take 25 minutes to complete and submit. A revision is expected to take somewhat longer (75 minutes) because it involves completing a new report form rather that just cor- recting the individual items that are in error. 2 Section 61.7 requires Federal and State agencies responsible for the licensing and certification of health care providers, suppliers and practi- tioners to report all disciplinary licensure actions to the HIPDB. Therefore, we estimate that approximately 34 State licensing boards in each State will report to the State licensing and certification authorities (54 States and territories × 34 licensing boards/per State = 1,836 State licens- ing and certification boards), and the State licensing and certification authorities (4 per State) will be responsible for reporting information to the HIPDB (54 States and territories × 4 State licensing and certification authorities/per State = 216 State licensing and certification authorities). We estimate that 5,500 reports will be submitted directly to the HIPDB each year, for an average of 25 reports per State licensing and certification authority and 3 reports per State licensing board. Since disciplinary licensure actions by State licensing authorities in the NPDB overlap with this statute, this estimate does not include the licensure actions that will be reported directly to the NPDB and transmitted from there to the HIPDB. The estimates include only those actions which are reported solely to the HIPDB, such as actions taken against certain health care providers and suppliers. The HIPDB will use similar forms and procedures for reporting as the NPDB. As a result, we estimate that it will take a State licensing board 75 minutes to complete and submit an initial report. We also estimate that it will take a State licensing and certification authority 15 min- utes to verify the accuracy and completeness of the information contained in the initial report before electronically submitting the information to the HIPDB. 3 Section 61.8 requires Federal and State prosecutors and investigative agencies to report criminal convictions related to the delivery of a health care item or service. Based on the number of health care providers, suppliers and practitioners convicted by the Federal government, we estimate that there will be an approximate total of 700 State criminal convictions reported to the HIPDB each year, for an average of 13 convic- tions per State. Based on experience with the NPDB, we estimate that it will take 75 minutes to complete and submit each report. 58350 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

4 Section 61.9 requires Federal and State attorneys and investigative agencies and health care plans to report civil judgments against health care providers, suppliers and practitioners related to the delivery of a health care item or service. We estimate that there will be an approximate total of 500 civil judgments each year that will be reported by the 54 States Attorneys and an estimated 8 health plans, for a total of 62 reporters. Based on experience with the NPDB, we estimate that it will take 75 minutes to complete and submit each report. 5 Section 61.11 requires Federal and State governmental agencies and health plans to report any adjudicated action or decision related to the delivery of a health care item or service against health care providers, suppliers and practitioners. We estimate that there will be an approximate total of 800 other adjudicated actions or decision reports submitted to the HIPDB each year by 54 State governmental agencies and an esti- mated 12 health plans, for a total of 66 reporters. Based on experience with the NPDB, we estimate that it will take 75 minutes to complete and submit each report. 6 Certain queriers have access to both the NPDB and the HIPDB. When these entities query one data bank, they will automatically receive re- ports from both. The Department estimates that there will be 1,127,512 queries submitted to the HIPDB per year on health care providers, sup- pliers and practitioners, including an estimated 60,000 self-queries. These estimates include only queries submitted directly to the HIPDB; it does not include those transferred from the NPDB. The estimates of burden per response are based on experience with similar querying of the NPDB. 7 To access the HIPDB, entities are required to certify that they meet section 1128E reporting and querying requirements by completing an En- tity Registration form and submitting it to the HIPDB. The information collected on this form provides the HIPDB with essential information con- cerning the entity, such as name, address and entity type. Eligible entities, such as State licensing agencies or certain managed care organiza- tions, that have access to both the NPDB and the HIPDB have already registered for the NPDB and are not required to register separately for the HIPDB. Entities eligible to access only the HIPDB must complete and submit the Entity Registration form. We estimate that it will take an en- tity 10 minutes to complete and submit the Entity Registration form to the HIPDB. If there are any changes in the entity's name, address, tele- phone, entity type designation, or query and report point of contact, the entity representative must update the information on the Entity Informa- tion Update form and submit it to the HIPDB. Of the 5,000 new registrants, we estimate 250 entities (5 percent of all new registrants) will need to update their organization's information each year. 8 An eligible entity may elect to have an outside organization query or report to the HIPDB on its behalf. This organization is referred to as an authorized agent. Before an authorized agent acts on behalf of an entity, the eligible entity must complete and submit an Agent Designation form to the HIPDB Help Line. The information collected on this form provides the HIPDB with essential information concerning the agent, such as name address and telephone number. We estimate that 100 entities (2 percent of all new registrants) will elect an authorized agent to query or report to the HIPDB on their behalf. We estimate that it will take an entity 10 minutes to complete and submit the Agent Designation form to the HIPDB. Any changes to the authorized agent designation, such as routing of responses to queries or termination of an authorized agent, the eli- gible entity must update the information on the Agent Designation Update form and submit it to the HIPDB. We estimate that five of the 100 eligi- ble entities will need to update their agent's information each year. 9 Section 61.15 describes the process to be followed by a health care provider, supplier or practitioner in disputing the factual accuracy of infor- mation in a report and requesting Secretarial review of the disputed report. Based on experience with the NPDB, we estimate that 750 (10 per- cent of all new reports) will be entered into the ``disputed status.'' We estimate that it will take a health care provider, supplier or practitioner 10 minutes to notify the HIPDB to enter the report into ``disputed status.'' Of the 750 disputed reports, we estimate that only 37 reports (5 percent) will be forwarded to the Secretary for review. We estimate that it will take a health care provider, supplier or practitioner 8 hours to describe in writing which facts are in dispute and to gather supporting documentation related to the dispute.

Forms to be used in the day-to-day management of the HIPDB would include the following:

Hrs. per Form name No. of Respon per Total respon. Total bur- Wage rate Total cost respond respond respons (min) den hours

Account Discrepancy ...... 2,000 1 2,000 5 166 $ 15 $2,490 Electronic Funds Transfer Authorization ... 850 1 850 5 70 15 1,050 Entity Reactivation ...... 500 1 500 5 41 15 615

Total ...... 3,350 ...... 3,350 ...... 277 ...... $4,155

Request for Comment: In accordance proposed information collection V. Public Inspection of Comments and with the requirement of section requirements should be sent to: Allison Response to Comments 3506(c)(2)(A) of the PRA for opportunity Herron Eydt, Human Resources and for public comment on proposed data Housing Branch, Office of Management Comments will be available for public collection projects, comments are and Budget, New Executive Office inspection November 13, 1998 in Room invited on: (1) whether the proposed Building, Room 10235, Washington, 2A–44, Parklawn Building, Health collection of information is necessary D.C. 20503. The OMB is required to Resources and Services Administration, for the proper performance of the make a decision concerning the Bureau of Health Professions, Division functions of the Department, including collection of information contained in of Quality Assurance at 5600 Fishers whether the information will have these proposed regulations between 30 Lane, Rockville, Maryland, on Monday practical utility; (2) the accuracy of the and 60 days after publication of this through Friday of each week (Federal Department’s estimate of the burden of document in the Federal Register. holidays excepted) between the hours of 10:00 a.m. and 2:00 p.m., (301) 443– the proposed collection of information; Therefore, a comment to OMB is best 2300. (3) ways to enhance the quality, utility, assured of having its full effect if OMB and clarity of the information to be receives it within 30 days of Because of the large number of items collected; and (4) ways to minimize the publication. This does not affect the of correspondence we normally receive burden of the collection of information deadline for the public to comment to on Federal Register documents on respondents, including through the the Department on the proposed published for comment, we are not able use of automated collection techniques regulations. to acknowledge or respond to them or other forms of information individually. We will consider all technology. comments we receive by the date and Written comments and time specified in the DATES section of recommendations concerning the this preamble, and will respond to the Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58351 comments in the preamble of the final collection program for the reporting and laws, are reportable to that State’s rule. disclosing of certain final adverse boards or agencies which license or actions taken against health care certify health care practitioners, List of Subjects in 45 CFR Part 61 providers, suppliers, or practitioners. providers or suppliers. This definition Health professions, Hospitals, Home Section 1128E of the Act also directs the also includes final adverse actions (such health care agencies, Skilled nursing Secretary to maintain a database of final as civil money penalties and facilities, Durable medical equipment adverse actions taken against health care administrative fees that occur in suppliers and manufacturers, Billing providers, suppliers, or practitioners. conjunction with settlements) in which and transportation services, Health This data bank will be known as the no findings or admissions of liability maintenance organizations, Health care Healthcare Integrity and Protection Data have been made, and that would insurers, Pharmaceutical suppliers and Bank (HIPDB). Settlements in which no otherwise be reportable under the manufacturers, Reporting and findings or admissions of liability have statute. recordkeeping requirements. been made will be excluded from being Civil judgment means a court-ordered Accordingly, a new 45 CFR part 61 reported. However, any final adverse action rendered in a Federal or State would be added as set forth below: action that emanates from such court proceeding, other than a criminal settlements, and that would otherwise proceeding. This reporting requirement PART 61ÐHEALTHCARE INTEGRITY be reportable under the statute, will be does not include consent judgments that AND PROTECTION DATA BANK FOR reported to the HIPDB. have been agreed upon and entered to FINAL ADVERSE INFORMATION ON (b) Section 1128E of the Act also provide security for civil settlements in HEALTH CARE PROVIDERS, requires the Secretary to implement the which there was no finding or SUPPLIERS AND PRACTITIONERS HIPDB in such a manner as to avoid admission of liability. duplication with the reporting Clinical privileges includes, as Subpart AÐGeneral Provisions requirements established for the appropriate to the organization, Sec. National Practitioner Data Bank (NPDB). privileges, membership on the medical 61.1 The Healthcare Integrity and In accordance with the statute, the staff and other circumstances pertaining Protection Data Bank. to the furnishing of medical care under 61.2 Applicability of these regulations. reporter responsible for reporting the 61.3 Definitions. final adverse actions to both the HIPDB which a physician, dentist or other and the NPDB will be required to licensed health care practitioner is Subpart BÐReporting of Information submit only one report, provided that permitted to furnish such care by a 61.4 How information must be reported. reporting is made through the health plan or by a Federal or State 61.5 When information must be reported. Department’s consolidated reporting agency that either administers or 61.6 Reporting errors, omissions, revisions, mechanism that will sort the provides payment for the delivery of or whether an action is on appeal. appropriate actions into the HIPDB, health care services. 61.7 Reporting licensure actions taken by NPDB or both. Criminal conviction means a Federal or State licensing and conviction as described in section certification agencies. (c) These regulations set forth the 61.8 Reporting Federal or State criminal reporting and disclosure requirements 1128(i) of the Act. convictions related to the delivery of a for the HIPDB. Exclusion means a temporary or health care item or service. permanent debarment of an individual § 61.2 Applicability of these regulations. 61.9 Reporting civil judgments related to or entity from participation in any the delivery of a health care item or The regulations in this part establish Federal or State health-related program, service. reporting requirements applicable to and that items or services furnished by 61.10 Reporting exclusion from Federal and State government agencies such person or entity will not be participation in Federal or State health and to health plans, as the terms are reimbursed under any Federal or State care programs. defined under § 61.3 of this part. health-related program. 61.11 Reporting other adjudicated actions Government agency includes, but is or decisions. § 61.3 Definitions. not limited to— Subpart CÐDisclosure of Information by Act means the Social Security Act. (1) The U.S. Department of Justice; the Healthcare Integrity and Protection Data Affiliated or associated means health (2) The U.S Department of Health and Bank care entities with which a subject of a Human Services; 61.12 Requesting information from the final adverse action has a business or (3) Any other Federal agency that Healthcare Integrity and Protection Data professional relationship. This includes, either administers or provides payment Bank. but is not limited to, organizations, for the delivery of health care services, 61.13 Fees applicable to requests for associations, corporations, or including, but not limited to the U.S. information. partnerships. It also includes a Department of Defense and the U.S. 61.14 Confidentiality of Healthcare Integrity professional corporation or other Department of Veterans Affairs; and Protection Data Bank information. business entity composed of a single (4) State law enforcement agencies, 61.15 How to dispute the accuracy of individual. which include States Attorneys General; Healthcare Integrity and Protection Data Any other negative action or finding Bank information. (5) State Medicaid Fraud Control by a Federal or State licensing and Units; and Authority: 42 U.S.C. 1320a–7e. certification agency means any action or (6) Federal or State agencies Subpart AÐGeneral Provisions finding that is a matter of public record responsible for the licensing and and rendered by a licensing or certification of health care providers, § 61.1 The Healthcare Integrity and certification authority, including but not suppliers or licensed health care Protection Data Bank. limited to, imposition of civil money practitioners. Examples of such State (a) Section 1128E of the Social penalties and administrative fines, agencies include Departments of Security Act (the Act) authorizes the limitations on the scope of practice, Professional Regulation, Health, Social Secretary of Health and Human Services liquidations, injunctions, forfeitures, Services (including State Survey and (the Secretary) to implement a national and criminal convictions and civil Certification and Medicaid Single State health care fraud and abuse data judgments which, under that State’s agencies), Commerce and Insurance. 58352 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Health care fraud means fraud as (5) An insurance company, insurance 61.8, 61.9, 61.10 and 61.11 of this part defined in section 241 of the Health service or insurance organization that is in such form and manner as the Insurance Portability and licensed to engage in the business of Secretary may prescribe. Accountability Act (HIPAA) of 1996, selling health care insurance in a State Public Law 104–191. and which is subject to State law which § 61.5 When information must be reported. Health care provider means a regulates health insurance. (a) Information required under provider of services as defined in Licensed health care practitioner, §§ 61.7, 61.8, 61.9, 61.10 and 61.11 of section 1861(u) of the Act; any health licensed practitioner, or practitioner this part must be submitted to the care entity (including a health mean, with respect to a State, an HIPDB within 30 calendar days from the maintenance organization, preferred individual who is licensed or otherwise date the final adverse action was taken; provider organization or group medical authorized by the State to provide the date when the reporting entity practice) that provides health care health care services (or any individual became aware of the final adverse services and follows a formal peer who, without authority, holds himself action; or by the close of the entity’s review process for the purpose of or herself out to be so licensed or next monthly reporting cycle, furthering quality health care; or any authorized). whichever is later. other health care entity that, directly or Other adjudicated actions or (b) The date of the final adverse action through contracts, provides health care decisions means an official action taken was taken, its effective date and services. by a Federal or State governmental duration would be contained in the Health care supplier means a provider agency or health plan against a health information reported to the HIPDB of medical and other health care care provider, supplier or practitioner under §§ 61.7, 61.8, 61.9, 61.10 and services as described in section 1861(s) based on acts or omissions that affect or 61.11 of this part. of the Act; or any individual or entity, could significantly affect the delivery or other than a provider, who furnishes or payment of a health care item or service. § 61.6 Reporting errors, omissions, provides access to health care services, For example, an official action taken by revisions or whether an action is on appeal. supplies, items or ancillary services a Federal or State governmental agency (a) If errors or omissions are found (including, but not limited to, durable includes, but is not limited to, a after information has been reported, the medical equipment suppliers and personnel-related action such as reporter must send an addition or manufacturers of health care related suspensions without pay, reductions in correction to the HIPDB. This is an items, pharmaceutical suppliers and pay, reductions in grade, terminations opportunity only for the subjects to manufacturers, health record services or other comparable actions. A hallmark request the reporting entity to correct such as medical, dental and patient of any valid adjudicated action or any errors or omissions in the records, health data suppliers, and decision is the existence of a due information, and not for requests for billing and transportation service process mechanism. In general, if an readjudication of their cases. suppliers). The term also includes any ‘‘adjudicated action or decision’’ follows (b) A reporter that reports information individual or entity under contract to an agency’s established administrative on licensure, exclusion, criminal provide such supplies, items or procedures (which ensure that due convictions, civil or administrative ancillary services, and any group, process is available to the subject of the judgments, or adjudicated actions or organization or company providing final adverse action), it would qualify as decisions under §§ 61.7, 61.8, 61.9, health benefits whether directly, or a reportable action under this definition. 61.10 or 61.11 of this part also must indirectly through insurance, For health plans that are not report any revision of the action reimbursements or otherwise, government entities, an action taken originally reported. Revisions include (including but not limited to, insurance following adequate notice and hearing reversal of a criminal conviction, producers such as agents, brokers, requirement that meets the standards of reversal of a judgment or other solicitors, consultants and reinsurance due process set out in section 412(b) of adjudicated decisions or whether the intermediaries, insurance companies, the HCQIA (42 U.S.C. 11112(b)) also action is on appeal, and reinstatement of self-insured employers and health care would qualify as a reportable action a license. under this definition. The fact that the purchasing groups or entities). (c) The subject will receive a copy of Health plan means a plan, program or subject elects not to use the due process mechanism provided by the authority all reports, including revisions and organization that provides health corrections to the report. benefits, whether directly, through bringing the action is immaterial, as insurance, reimbursement or otherwise, long as such a process is available to the (d) Upon receipt of a report, the and includes but is not limited to— subject before the adjudicated action or subject— (1) A policy of health insurance; decision is made final. (1) Can accept the report as written; (2) A contract of a service benefit Secretary means the Secretary of (2) May provide a statement to the organization; Health and Human Services and any HIPDB, either directly or through a (3) A membership agreement with a other officer or employee of the designated representative, that will health maintenance organization or Department of Health and Human permanently append the report (The other prepaid health plan; Services to whom the authority statement should be limited to 2,000 (4) A plan, program, or agreement involved has been delegated. characters and will be included in the State means any of the fifty States, the established, maintained or made record. The HIPDB will distribute the District of Columbia, the available by an employer or group of statement to queriers (where Commonwealth of Puerto Rico, the employers, a practitioner, provider or identifiable), the reporting entity and Virgin Islands and Guam. supplier group, third party the subject of the report. The HIPDB administrator, integrated health care Subpart BÐReporting of Information will not edit the statement; only the delivery system, employee welfare subject can, upon request, make changes association, public service group or § 61.4 How information must be reported. to the statement.); or organization or professional association; Information must be reported to the (3) May follow the dispute process in and HIPDB as required under §§ 61.6, 61.7, accordance with § 61.15 of this part. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58353

§ 61.7 Reporting licensure actions taken (xiv) Classification of the action in (viii) Classification of the action in by Federal and State licensing and accordance with a reporting code accordance with a reporting code certification agencies. adopted by the Secretary; adopted by the Secretary; (a) What actions must be reported. (xv) Name and address of the (ix) Name and address of the reporting Federal and State licensing and reporting entity, and the name of the entity, and the name of the agency certification agencies must report to the agency taking the action; taking the action; HIPDB the following final adverse (xvi) The name, title and telephone (x) The name, title and telephone actions that are taken against a health number of the responsible official number of the responsible official care provider, supplier or practitioner submitting the report on behalf of the submitting the report on behalf of the (regardless of whether the final adverse reporting entity; and reporting entity; and actions are the subject of a pending (xvii) Name(s) of any health care (xi) Name(s) of any health care entity appeal)— entity with which the subject is with which the subject is affiliated or (1) Formal or official actions, such as affiliated or associated. associated. revocation or suspension of a license (2) Federal and State licensing and (2) Federal and State licensing and (and the length of any such suspension), certification agencies should report, certification agencies should report, reprimand, censure or probation; when known, the following concerning when known, the following information (2) Any other loss of the license or the a practitioner who is the subject of a concerning a provider or supplier who right to apply for, or renew, a license of final adverse action— is the subject of a final adverse action the provider, supplier, or practitioner, (i) Other name(s) used; (regardless of whether the final adverse whether by operation of law, voluntary (ii) If deceased, date of death; actions are the subject of a pending surrender (including certification (iii) Home address; appeal)— agreements or contracts for participation (iv) Federal license, certification or (i) Federal license, certification or in Federal or State health care registration number(s) (such as a Drug registration number(s) (such as a DEA programs), non-renewability (excluding Enforcement Administration (DEA) registration number, Medicare provider those due to nonpayment of fees, registration number and Medicare number(s), Clinical Laboratory retirement, or change to inactive status) provider number(s)); Improvement Act (CLIA) number); or otherwise; and (v) Type(s) of any health care entity (ii) Type(s) of any health care entity (3) Any other negative action or with which the subject is affiliated or with which the subject is affiliated or finding by such Federal or State agency associated; associated; that is publicly available information. (vi) Address of each associated or (b) Information to be reported on (iii) Address of each associated or affiliated health care entity; affiliated health care entity; individuals. (1) Federal or State (vii) NPI of each associated or licensing and certification agencies (iv) NPI of each affiliated or affiliated health care entity, when associated health care entity, when must report the following information issued by HCFA; and concerning a practitioner who is the issued by HCFA; (viii) Nature of subject’s relationship (v) Nature of subject’s relationship to subject of a final adverse action to each associated or affiliated health each associated or affiliated health care (regardless of whether the final adverse care entity. entity; and actions are the subject of a pending (c) Information that must be reported (vi) Total amount of monetary appeal)— on organizations. (1) Federal or State (i) Name; penalties and fines. licensing and certification agencies (d) Sanctions for failure to report. The (ii) Social Security number, and must report the following information Federal Employer Identification number Secretary will provide for publication of concerning a provider or supplier who a public report that identifies those for individuals who possess one; is the subject of a final adverse action (iii) Sex; Government agencies that have failed to (iv) Date of birth; (regardless of whether the final adverse report information on adverse actions as (v) Occupation; actions are the subject of a pending required to be reported under this (vi) Organization name and type; appeal)— section. (vii) Primary work address; (i) Name and type of provider or (viii) Name of each professional supplier; § 61.8 Reporting Federal or State criminal school attended and year of graduation; (ii) Federal Employer Identification convictions related to the delivery of a (ix) With respect to professional number, and Social Security number health care item or service. license, certification or registration, the (when used as the Tax Identification (a) Who must report. Federal and license, certification or registration number (TIN)); State prosecutors, including law number, the field of licensure, (iii) The provider’s or supplier’s enforcement and investigative agencies, certification or registration and the address; must report criminal convictions against name(s) of the State or Territory in (iv) The provider’s or supplier’s health care providers, suppliers and which the license, certification or license, certification, or registration practitioners related to the delivery of a registration is held; number(s) and name(s) of the State or health care item or service. (x) Physician specialty, if applicable; Territory in which the license, (b) Information to be reported on (xi) National Provider Identifier (NPI), certification or registration is held (the individuals. (1) Entities described in when issued by the Health Care license number against which the action paragraph (a) of this section must report Financing Administration (HCFA); is taken should be specified); the following information— (xii) A description of the acts or (v) NPI, when issued by HCFA; (i) With respect to the individual who omissions or other reasons for the action (vi) A description of the acts or is the subject of a criminal conviction— taken; omissions or other reason for the action; (A) Full name; (xiii) A description of the action, if (vii) A description of the action, if (B) Social Security number, and applicable, the date the action was applicable, the date the action was Federal Employer Identification number taken, its effective date and duration, taken, its effective date and duration, for individuals who possess one; the amount of any monetary penalty, the amount of any monetary penalty, (C) Date of birth; and whether the action is on appeal; and whether the action is on appeal; (D) Sex; 58354 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

(E) Occupation; (D) Nature of subject’s relationship to (F) Investigative agencies involved; (F) Organization name and type; each associated or affiliated health care and (G) Primary work address; entity; and (G) Investigative agencies’ case or file (H) NPI, when issued by HCFA; (iii) With respect to the action— number; and (I) Court or judicial venue in which (A) Investigative agencies involved; (ii) With respect to any health care the action was taken; and entities (if known) with which the (J) Docket or court file number; (B) Investigative agencies’ case or file subject of the criminal conviction is (K) Name of primary prosecuting number. affiliated or associated— agency; (c) Information to be reported on (A) Type(s) of affiliated or associated (L) Prosecuting agency’s case number; organizations. (1) Entities described in health care entities; (M) Length of incarceration, paragraph (a) of this section must report (B) Address of each associated or detention, probation, community the following information— affiliated health care entity; service or other sentence; (i) With respect to the organization (C) NPI of each associated or affiliated (N) Amount of any monetary that is the subject of a criminal health care entity, when issued by penalties, judgment, restitution or other conviction— HCFA; and order; (A) Entity’s legal name; (D) Nature of subject’s relationship to (O) Date of sentence; (B) Name entity is doing business as; each associated or affiliated health care (P) Description of acts or omissions (C) Business address; entity. and injuries upon which the action was (D) Federal Employer Identification (d) Sanctions for failure to report. The based; number, and Social Security number Secretary will provide for publication of (Q) Nature of the final adverse action (when used as the TIN); a public report that identifies those and whether such action is on appeal; (E) NPI when issued by the HCFA; Government agencies that have failed to (R) Name(s) of affiliated or associated (F) Type of entity; report information on adverse actions as health care entities; and (G) Court or judicial venue in which required to be reported under this (S) Statutory offenses and count(s), the action was taken; section. and (H) Docket or court file number; (ii) With respect to the reporting (I) Name of primary prosecuting § 61.9 Reporting civil judgments related to entity— agency; the delivery of a health care item or service. (A) Name and address of the reporting (J) Prosecuting agency’s case number; (a) Who must report. Federal and entity and its file number concerning (K) Length of sentence (e.g., for States Attorneys, investigative agencies the subject; and probation); and health plans must report civil (B) The name, title and telephone (L) Amount of any monetary penalty, judgments against health care providers, number of the responsible official judgment, restitution, or other orders; suppliers or practitioners related to the submitting the report on behalf of the (M) Date of sentence; delivery of a health care item or service reporting entity. (N) Description of acts or omissions (regardless of whether the civil (2) Entities described in paragraph (a) and injuries upon which the action was judgment is the subject of a pending of this section should report, when based; appeal), with the exception of those known, the following information— (O) Nature of the final adverse action resulting from medical malpractice. (i) With respect to the individual who and whether such action is on appeal; (b) Information to be reported on is the subject of a criminal conviction— (P) Name(s) of affiliated or associated individuals. (1) Entities described in (A) Other name(s) used; health care entities; and paragraph (a) of this section must report (Q) Statutory offenses and count(s), (B) Home address; the following information— (C) Physician specialty; and (i) With respect to the individual who (D) Medicare provider number(s); (ii) With respect to the reporting is the subject of a judgment— (E) Medicaid provider number(s) and entity— (A) Full name; State(s); (A) Name and address of the reporting (B) Social Security number, and (F) DEA registration number(s); entity and its file number concerning Federal Employer Identification number (G) Federal Bureau of Investigation the subject; and for individuals who possess one; (FBI) number; (B) The name, title and telephone (C) Date of birth; (H) Name of each professional school number of the responsible official (D) Sex; attended and year of graduation; and submitting the report on behalf of the (E) Occupation; (I) With respect to each professional reporting entity. (F) Organization name and type; license, certification or registration, the (2) Entities described in paragraph (a) (G) Primary work address; license, certification or registration of this section should report, when (H) NPI, when issued by HCFA; number, the field of licensure, known, the following information— (I) Court or judicial venue in which certification or registration, and the (i) With respect to the organization the action was taken; name(s) of the State or Territory in that is the subject of a criminal (J) Docket or court file number; which the license, certification or conviction— (K) Name of primary prosecuting registration is held, if known; (A) Medicare provider number(s); agency or civil plaintiff; (ii) With respect to health care entities (B) Medicaid provider number(s) and (L) Prosecuting agency’s case number; (if known) with which the subject of the State(s); (M) Date of judgment; criminal conviction is affiliated or (C) DEA registration number(s); (N) Amount of any monetary penalty, associated— (D) Health care provider’s or judgment, restitution, or other orders; (A) Type(s) of affiliated or associated supplier’s license, certification or (O) Description of acts or omissions health care entities; registration number(s), and the name(s) and injuries upon which the action was (B) Address of each associated or of the State or Territory in which the based; affiliated health care entity; license, certification or registration is (P) Nature of final adverse action and (C) NPI of each associated or affiliated held; whether such action is on appeal; health care entity, when issued by (E) Names and titles of principal (Q) Name(s) of affiliated or associated HCFA; and officers and owners; health care entities; and Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58355

(R) Statutory offenses and count(s), (I) Name of primary prosecuting provide for publication of a public and agency or civil plaintiff; report that identifies those Government (ii) With respect to the reporting (J) Prosecuting agency’s case number; agencies that have failed to report entity— (K) Date of judgment; information on adverse actions as (A) Name and address of the reporting (L) Amount of any monetary penalty, required to be reported under this entity and its file number concerning judgment, restitution or other orders; section. the subject; and (M) Description of acts or omissions (B) The name, title and telephone and injuries upon which the action was § 61.10 Reporting exclusion from number of the responsible official based; participation in Federal or State health care programs. submitting the report on behalf of the (N) Nature of final adverse action and reporting entity. whether such action is on appeal; (a) Who must report. Federal and (2) Entities described in paragraph (a) (O) Name(s) of affiliated or associated State government agencies must report of this section should report, when health care entities; and health care providers, suppliers or known, the following information— (P) Statutory offenses and count(s), practitioners excluded from (i) With respect to the individual who and participating in Federal or State health is the subject of a judgment— (ii) With respect to the reporting care programs, including exclusions that (A) Physician specialty, if applicable; entity— were made in a matter in which there (B) Other name(s) used; (A) Name and address of the reporting was also a settlement that is not (C) Home address; entity and its file number concerning reported because no findings or (D) Medicare provider number(s); the subject; and admissions of liability have been made (E) Medicaid provider number(s) and (B) The name, title and telephone (regardless of whether the exclusion is State(s); number of the responsible official the subject of a pending appeal) . (F) DEA registration number(s); submitting the report on behalf of the (b) Information to be reported on (G) FBI number; reporting entity. individuals. (1) The entity described in (H) Name of each professional school (2) Entities described in paragraph (a) paragraph (a) of the section must report attended and year of graduation; of this section should report, when the following information— (I) With respect to each professional known, the following information— (i) Name; license, certification or registration, the (i) With respect to the organization (ii) Social Security number, and license, certification, or registration that is the subject of a judgment— Federal Employer Identification number number, the field of licensure, (A) Medicare provider number(s); for individuals who possess one; certification, or registration, and the (B) Medicaid provider number(s) and (iii) Date of birth; name(s) of the State or Territory in State(s); (iv) Sex; which the license, certification or (C) DEA registration number(s); (v) Occupation; registration is held; (D) Health care provider or supplier (vi) Primary work address; (J) Investigative agencies involved; license, certification or registration (vii) Organization name and type; and number, and the name(s) of the State or (viii ) NPI, when issued by HCFA; (K) Investigative agencies’ case or file Territory in which the license, (ix) Professional school and year of number; and certification or registration is held; graduation; (ii) With respect to any health care (E) Names and titles of principal (x) With respect to each professional entities (if known) with which the officers and owners; license, certification or registration, the subject of the judgment is affiliated or (F) Investigative agencies involved; license, certification or registration associated— and number, the field of licensure, (A) Type(s) of affiliated or associated (G) Investigative agencies’ case or file certification or registration, and the health care entities; number; and name(s) of the State or Territory in (B) Address of each associated or (ii) With respect to any health care which the license, certification or affiliated health care entity; entities (if known) with which the registration is held; (C) NPI of each associated or affiliated subject of the judgment is affiliated or (xi) Description of the action, the date health care entity, when issued by associated— the action was taken, its effective date HCFA; and (A) Type(s) of affiliated or associated and duration, and whether the action is (D) Nature of subject’s relationship to health care entities; on appeal; each associated or affiliated health care (B) Address of each associated or (xii) Classification of the action in entity. affiliated health care entity; accordance with a reporting code (c) Information to be reported on (C) NPI of each associated or affiliated adopted by the Secretary; organizations. (1) Entities described in health care entity, when issued by (xiii) Description of acts or omissions, paragraph (a) of this section must report HCFA; and and injuries, upon which the action was the following information— (D) Nature of subject’s relationship to based; (i) With respect to the organization each associated or affiliated health care (xiv) Name and address of the that is the subject of a judgment— entity. reporting entity, and the name of the (A) Entity’s legal name, if known; (d) Sanctions for failure to report. Any agency taking the action; (B) Name entity is doing business as; health plan that fails to report (xv) The name, title and telephone (C) Business address; information on an adverse action number of the responsible official (D) Federal Employer Identification required to be reported under this submitting the report on behalf of the number, and Social Security number section will be subject to a civil money reporting entity; and (when used as the TIN); penalty (CMP) of not more than $25,000 (xvi) Name(s) of any health care entity (E) NPI, when issued by HCFA; for each such adverse action not with which the subject is affiliated or (F) Type of entity; reported. Such penalty will be imposed associated. (G) Court or judicial venue in which and collected in the same manner as (2) The entity described in paragraph the action was taken; CMPs under subsection (a) of section (a) of this section should report, when (H) Docket or court file number; 1128A of the Act. The Secretary will known, the following information— 58356 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

(i) Other name(s) used; (iv) NPI of each associated or (xvi) Name(s) of any health care (ii) Home address; affiliated health care entity, when entities with which the subject is (iii) Physician specialty; issued by HCFA; and affiliated or associated. (iv) Federal license, certification or (v) Nature of subject’s relationship to (2) Entities described in paragraph (a) registration number(s) (such as a DEA each associated or affiliated health care of this section should report, when registration number, Medicare provider entity. known, the following information on number(s)); (d) Sanctions for failure to report. The individuals— (v) Type(s) of any health care entity Secretary will provide for publication of (i) Other name(s) used; with which the subject is affiliated or a public report that identifies those (ii) Home address; associated; Government agencies that have failed to (iii) Physician specialty; (iv) Federal license, certification or (vi) Address of each associated or report information on adverse actions as registration number(s) (such as a DEA affiliated health care entity; required to be reported under this registration number, Medicare provider (vii) NPI of each associated or section. affiliated health care entity, when number(s)); issued by HCFA; and § 61.11 Reporting other adjudicated (v) Type(s) of any health care entity (viii) Nature of subject’s relationship actions or decisions. with which the subject is affiliated or to each associated or affiliated health (a) Who must report. Federal and associated; care entity. State governmental agencies and health (vi) Address of each associated or (c) Information to be reported on plans must report other adjudicated affiliated health care entity; organizations. (1) An entity described in actions or decisions related to the (vii) NPI of each associated or paragraph (a) of this section must report delivery of a health care item or service affiliated health care entity, when the following information for a health against health care providers, suppliers issued by HCFA; and (viii) Nature of subject’s relationship care provider or supplier— and practitioners (regardless of whether to each associated or affiliated health (i) Name and type of provider or the other adjudicated actions or care entity. supplier; decisions are subject to a pending (ii) Federal Employer Identification (c) Information to be reported on appeal). organizations. (1) Entities described in number, and Social Security number (b) Information to be reported on (when used as the TIN); paragraph (a) of this section must report individuals. (1) Entities described in the following information on (iii) NPI, when issued by HCFA; paragraph (a) of this section must report (iv) The provider’s or supplier’s organizations— the following information on (i) Name and type of provider or address; individuals— (v) The provider’s or supplier’s supplier; (i) Name; (ii) Federal Employer Identification license, certification or registration (ii) Social Security number, and number, and Social Security number number(s) and the name of the State or Federal Employer Identification number (when used as the TIN); Territory in which the license, for individuals who possess one; (iii) The provider’s or supplier’s certification or registration is held (the (iii) Sex; address; license number against which the action (iv) Date of birth; (iv) NPI, when issued by HCFA; is taken should be specified); (v) Occupation; (v) The provider’s or supplier’s (vi) Description of the acts or (vi) Primary work address; license, certification or registration omissions or other reason for the action; (vii) Organization name and type; number(s) and the name of the State or (vii) Classification of the action in Territory in which the license, accordance with a reporting code (viii) Name of each professional school attended and year of graduation; certification or registration is held (the adopted by the Secretary; license number against which the action (viii) Description of the action, the (ix) With respect to each professional license, certification or registration, the is taken should be specified); date the action was taken, its effective (vi) Description of the acts or date and duration; license, certification or registration number, the field of licensure, omissions or other reason for the action; (ix) Name and address of the reporting (vii) Description of action, date the entity, and the name of the agency certification or registration, and the name of the State or Territory in which action was taken, its effective date and taking the action; duration, and amount of any monetary (x) The name, title and telephone the license, certification or registration is held; penalty; number of the responsible official (viii) Classification of the action in (x) NPI, when issued by HCFA; submitting the report on behalf of the accordance with a reporting code reporting entity; and (xi) Description of the acts or adopted by the Secretary; (xi) Name(s) of any health care entity omissions or other reason for the action; (ix) Name and address of reporting with which the subject is affiliated or (xii) Classification of the action in entity, and the name of the agency associated. accordance with a reporting code taking the action; (2) An entity described in paragraph adopted by the Secretary; (x) The name, title, and telephone (a) of this section should report, when (xiii) Description of the action, date number of the responsible official known, the following information for a the action was taken, its effective date submitting a report on behalf of the health care provider or supplier— and duration, amount of any monetary reporting entity; and (i) Federal license, certification or penalty, and whether the action is on (xi) Name(s) of any health care registration number(s) (such as a DEA appeal; entities with which the subject is registration number, Medicare provider (xiv) Name and address of the affiliated or associated. number(s), CLIA number); reporting entity, and the name of the (2) Entities described in paragraph (a) (ii) Type(s) of any health care entity agency taking the action; of this section should report, when with which the subject is affiliated or (xv) The name, title and telephone known, the following information on associated; number of the responsible official organizations— (iii) Address of each associated or submitting the report on behalf of the (i) Federal license, certification or affiliated health care entity; reporting entity; and registration number(s) (such as a DEA Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58357 registration number, Medicare provider form and manner as the Secretary may either directly or from another party, number(s), CLIA number); prescribe. These requests are subject to must use it solely with respect to the (ii) Type(s) of any health care entity fees set forth in § 61.13 of this part. The purpose for which it was provided. with which the subject is affiliated or HIPDB will comply with the Nothing in this paragraph will prevent associated; Department’s principles of fair the disclosure of information by a party (iii) Address of each associated or information practice by providing each from its own files used to create such affiliated health care entity, if known; subject of a report with a copy when the reports where disclosure is otherwise (iv) NPI of each associated or report is entered into the HIPDB. authorized under applicable State or affiliated health care entity, when Federal law. issued by HCFA; § 61.13 Fees applicable to requests for (v) Nature of subject’s relationship to information. § 61.15 How to dispute the accuracy of each associated or affiliated health care (a) Policy on fees. The fees described Healthcare Integrity and Protection Data Bank information. entity; and in this section apply to all requests for (vi) Name and titles of principal information from the HIPDB. However, (a) Who may dispute the HIPDB officers and owners. for purposes of verification and dispute information. The HIPDB will routinely (d) Sanctions for failure to report. Any resolution, the HIPDB will provide a mail or transmit electronically to the health plan that fails to report copy—automatically, without a request subject a copy of the report filed in the information on an adverse action and free of charge—of every record to HIPDB. The subject of the report or a required to be reported under this the health care provider, supplier or designated representative may dispute section will be subject to a CMP of not practitioner who is the subject of the the accuracy of a report concerning more than $25,000 for each such report. The fees are authorized by himself, herself or itself within 60 adverse action not reported. Such section 1128E(d)(2) of the Act, and they calendar days of receipt of the report. penalty will be imposed and collected reflect the full costs of operating the (b) Procedures for disputing a report in the same manner as CMPs under database. The actual fees will be with the reporting entity. (1) If the section 1128A(a) of the Act. The announced by the Secretary in periodic subject disagrees with the reported Secretary will provide for publication of notices in the Federal Register. information, the subject must request, in a public report that identifies those (b) Criteria for determining the fee. writing within 60 calendar days of Government agencies that have failed to The amount of each fee will be receipt of the report, that the HIPDB report information on adverse actions as determined based on the following enter the report into ‘‘disputed status.’’ (2) The HIPDB will send the report, required to be reported under this criteria— with a notation that the report has been section. (1) Direct and indirect personnel costs; placed in ‘‘disputed status,’’ to queriers Subpart CÐDisclosure of Information (2) Physical overhead, consulting, and (where identifiable), the reporting entity by the Healthcare Integrity and other indirect costs including rent and and the subject of the report. Protection Data Bank depreciation on land, buildings and (3) The subject must attempt to enter equipment; into discussion with the reporting entity § 61.12 Requesting information from the (3) Agency management and to resolve the dispute. If the reporting Healthcare Integrity and Protection Data entity revises the information originally Bank. supervisory costs; (4) Costs of enforcement, research and submitted to the HIPDB, the HIPDB will (a) Who may request information and establishment of regulations and notify the subject and all entities to what information may be available. guidance; whom reports have been sent that the Information in the HIPDB will be (5) Use of electronic data processing original information has been revised. If available, upon request, to the following equipment to collect and maintain the reporting entity does not revise the persons or entities, or their authorized information—the actual cost of the reported information, the subject may agents— service, including computer search request that the Secretary review the (1) Federal and State government time, runs and printouts; and report for accuracy. agencies; (6) Any other direct or indirect costs (c) Procedures for requesting a (2) Health plans; related to the provision of services. Secretarial review. (1) The subject must (3) A health care practitioner, (c) Assessing and collecting fees. The request, in writing, that the Secretary of provider, or supplier requesting Secretary will announce through the Department review the report for information concerning himself, herself periodic notice in the Federal Register accuracy. The subject must return this or itself; and the method of payment of fees. In request to the HIPDB along with (4) A person or entity who requests determining these methods, the appropriate materials that support the aggregate information, which does not Secretary will consider efficiency, subject’s position. The Secretary will permit the identification of any effectiveness and convenience for users only review the accuracy of the reported particular patient, health care provider, and for the Department. Methods may information, and will not consider the supplier or practitioner. (For example, include credit card, electronic funds merits or appropriateness of the action researchers can use the aggregate transfer and other methods of electronic or the due process that the subject information to identify the total number payment. received. of practitioners excluded from the (2) After the review, if the Secretary— Medicare and Medicaid programs. § 61.14 Confidentiality of Healthcare (i) Concludes that the information is Similarly, health plans can use Integrity and Protection Data Bank accurate and reportable to the HIPDB, aggregate information to develop information. the Secretary will inform the subject outcome measures in their efforts to Information reported to the HIPDB is and the HIPDB of the determination. monitor and improve quality care.) considered confidential and will not be The Secretary will include a brief (b) Procedures for obtaining HIPDB disclosed outside the Department, statement (Secretarial Statement) in the information. Eligible persons and except as specified in §§ 61.12 and report that describes the basis for the entities may obtain information from the 61.15 of this part. Persons and entities decision. The report will be removed HIPDB by submitting a request in such receiving information from the HIPDB, from ‘‘disputed status.’’ The HIPDB will 58358 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules distribute the corrected report and educational (NCE) broadcast stations, applicants controlled by a member or statement(s) to previous queriers (where both on the reserved and nonreserved members of a minority group, as identifiable), the reporting entity and portions of the broadcast spectrum. The required by statute. A point system the subject of the report. Commission proposes to eliminate the would have no required statutory (ii) Concludes that the information current traditional hearing process, components. The Commission seeks contained in the report is inaccurate, the which has been costly and time comment on various factors for which it Secretary will inform the subject of the consuming without making meaningful might award points, including local determination and direct the HIPDB or distinctions between applicants. It seeks diversity, fair distribution of service, the reporting entity to revise the report. comments on various alternatives, technical parameters, and other factors. The Secretary will include a brief including lotteries and point systems. The Commission also seeks comments statement (Secretarial Statement) in the The intended effect is to improve on tie breakers, to be used if two or report describing the findings. The methods for considering noncommercial more applicants receive the same HIPDB will distribute the corrected educational broadcast applications, number of points. report and statement (s) to previous consistent with statutory requirements. 3. NCE applicants, along with queriers (where identifiable), the DATES: Comments are due on or before commercial applicants, can also reporting entity and the subject of the December 14, 1998. Reply comments are currently apply for channels not report. due on or before January 4, 1999. specifically reserved for NCE use. The (iii) Determines that the disputed ADDRESSES: Paper comments should be Balanced Budget Act of 1997 requires issues are outside the scope of the sent to Secretary, Federal that commercial licenses be awarded by Department’s review, the Secretary will Communications Commission, 1919 M auction but exempts certain NCE inform the subject and the HIPDB of the Street, N.W., Washington, D.C. 20554. stations from auction. The Commission determination. The Secretary will Electronic comments should be sent via solicits comments on whether the include a brief statement (Secretarial the Internet to http://www.fcc.gov/e- statute would permit an auction Statement) in the report describing the file/ecfs.html. between commercial and NCE findings. The report will be removed FOR FURTHER INFORMATION CONTACT: applicants for nonreserved channels, from ‘‘disputed status.’’ The HIPDB will Irene Bleiweiss, Mass Media Bureau, with or without bidding credits for the distribute the report and the Audio Services Division (202) 418– NCE applicant. It also presents several statement(s) to previous queriers (where 2780. non-auction alternatives including identifiable), the reporting entity and expanding the limited circumstances SUPPLEMENTARY INFORMATION: This is a the subject of the report. under which the Commission will synopsis of the Commission’s Further (iv) Determines that the adverse reclassify a commercial channel as Notice of Proposed Rule Making (In the action was not reportable and therefore available for NCE use only in a Matter of Reexamination of the should be removed from the HIPDB, the particular area; considering NCE entities Comparative Standards for Secretary will inform the subject and ineligible to apply for nonreserved Noncommercial Educational direct the HIPDB to void the report. channels altogether; and hybrid Applicants), adopted October 7, 1998, The HIPDB will distribute a notice to approaches consisting of a lottery/ and released October 21, 1998. The previous queriers (where identifiable), auction or point system/auction. The complete text of this Further Notice of the reporting entity and the subject of Commission invites comments and Proposed Rule Making is available for the report that the report has been additional suggestions from the public. voided. inspection and copying during normal business hours in the FCC Reference List of Subjects in 47 CFR Parts 73 and Dated: April 10, 1998. Center (Room 239), 1919 M Street, N.W., 74 June Gibbs Brown, Washington, D.C., and also may be Inspector General. Radio broadcasting, Television purchased from the Commission’s copy broadcasting. Approved: June 9, 1998. contractor, International Transcription Donna E. Shalala, Service, (202) 857–3800, 1231 20th Federal Communications Commission. Secretary. Street, N.W., Washington, DC 20036. Magalie Roman Salas, Secretary. [FR Doc. 98–29147 Filed 10–29–98; 8:45 am] Synopsis of Order BILLING CODE 4160±15±P [FR Doc. 98–29065 Filed 10–29–98; 8:45 am] 1. The Commission first issued a BILLING CODE 6712±01±P Notice of Proposed Rule Making in this proceeding in 1995 [ 60 FR 15275 March FEDERAL COMMUNICATIONS 23,1995]. The Commission is now DEPARTMENT OF TRANSPORTATION COMMISSION issuing a Further Notice of Proposed 47 CFR Parts 73 and 74 Rule Making to seek comments on Surface Transportation Board additional options and issues. The [MM Docket No. 95±31; FCC 98±269] Commission proposes to discontinue its 49 CFR Part 1146 use of traditional comparative hearings Reexamination of Comparative to select among competing applicants [STB Ex Parte No. 628] Standards for Noncommercial for noncommercial educational (NCE) Educational Applicants Expedited Relief for Service radio and television stations. It solicits Inadequacies AGENCY: Federal Communications comments on several alternatives. Commission. 2. With respect to applicants for AGENCY: Surface Transportation Board. ACTION: Proposed rule. channels reserved for NCE use, the ACTION: Extension of time for filing reply Commission proposes to use either a comments. SUMMARY: The Commission is seeking lottery or a point system. A lottery further comment on methods that it would be weighted to give significant SUMMARY: In a supplemental notice of might use to choose among competing preference to applicants who would proposed rulemaking served October 15, applications involving noncommercial increase diversity of ownership and 1998, and published in the Federal Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58359

Register on October 20, 1998 (63 FR request, EEI submits that the one-week DATES: Comments must be received by 55996) (October supplemental notice), extension is needed, inter alia, to November 30, 1998. the Surface Transportation Board prepare meaningful replies and to ADDRESSES: Send comments to Dr. requested the filing of supplemental coordinate with other parties, and to William T. Hogarth, Regional reply comments on November 6, 1998. avoid conflict with two meetings Administrator, Southwest Region, In response to a request filed by Edison outside Washington, D.C. on November NMFS, 501 W. Ocean Boulevard, Suite Electric Institute (EEI), the Board is 2–3 and November 4–6, involving a 4200, Long Beach, CA 90802–4213. extending for one week (to November large number of shippers. EEI states that FOR FURTHER INFORMATION CONTACT: 13, 1998) the date for filing ASLRRA does not oppose the one-week supplemental replies. The supplemental extension. EEI’s request is reasonable, Svein Fougner or James Morgan at comment date of October 30, 1998, and it will be granted. (562)980–4030). remains the same. Decided: October 27, 1998. SUPPLEMENTARY INFORMATION: The FMP DATES: Supplemental reply comments By the Board, Vernon A. Williams, and implementing regulations at 50 CFR are now due November 13, 1998. Secretary. 600.745(b) specify that EFPs may be ADDRESSES: An original plus 12 copies Vernon A. Williams, issued to authorize fishing that otherwise would be prohibited by an of all supplemental replies, referring to Secretary. STB Ex Parte No. 628, must be sent to FMP and set forth procedures for [FR Doc. 98–29155 Filed 10–29–98; 8:45 am] the Surface Transportation Board, Office issuing permits. of the Secretary, Case Control Unit, 1925 BILLING CODE 4915±00±P NMFS has accepted an EFP K Street, N.W., Washington, DC 20423– application for review and has 0001. In addition, copies should be forwarded copies to the U.S. Coast served upon all parties included in the DEPARTMENT OF COMMERCE Guard and the Director of the California service list issued by the Board in its National Oceanic and Atmospheric Department of Fish and Game. The notices served June 9 and 16, 1998, Administration applicant proposes to harvest northern which are available on the Board’s anchovy off the coast of California in the website (www.stb.dot.gov). The October 50 CFR Part 660 area of the Farallon Islands. This area supplemental notice contains further has been closed to reduction fishing information concerning the availability [I.D. 101698B] since implementation of the FMP in of obtaining, copying, and seeing 1978 and, like other area closures in the Fisheries off West Coast States and in documents, and the requirements for FMP, was meant to avoid conflict the Western Pacific; Northern Anchovy electronic submission of documents. between recreational vessels and what Fishery FOR FURTHER INFORMATION CONTACT: was then a high-volume reduction Joseph H. Dettmar, (202) 565–1600. AGENCY: National Marine Fisheries fishery. Fishing operations would most [TDD for the hearing impaired: (202) Service (NMFS), National Oceanic and likely take place in the spring of 1999 565–1695.] Atmospheric Administration (NOAA), with roundhaul gear and would involve SUPPLEMENTARY INFORMATION: In a Commerce. from one to three vessels of 30 to 50 mt decision in this proceeding served May ACTION: Receipt of an application for an capacity. 12, 1998, and published in the Federal exempted fishing permit; request for The application will be discussed at Register on May 18, 1998 (63 FR 27253), comments. the November 2–6, 1998, meeting of the the Board instituted a proceeding to Pacific Fishery Management Council, solicit comments on proposed rules that SUMMARY: NMFS announces receipt of which will be held at the Doubletree would establish expedited procedures an application for an exempted fishing Hotel Columbia River in Portland,OR for shippers to obtain alternative rail permit(EFP) that would allow an 1401 N. Hayden Island Drive, Portland, service from another carrier when the experimental fishery for northern OR 97217 (63 FR 54450, October 9, incumbent carrier cannot properly serve anchovy in an area off San Francisco 1998). The decision on whether to issue shippers. In the October supplemental closed to vessels fishing for the an EFP and determinations on notice, the Board requested comments purposes of reducing the catch into appropriate permit conditions will be on a request by the American Short Line products such as fish meal and oil. based on a number of considerations, and Regional Railroad Association Reduction fishing is prohibited in the including recommendations made by (ASLRRA) for similar expedited Farallon Islands closure by 50 CFR the Council and comments received procedures to be established for Class II 660.512 of the regulations implementing from the public. A copy of the and Class III railroads to obtain the Northern Anchovy Fishery application is available for review at the temporary access to an additional Management Plan (FMP). The purpose NMFS Southwest Regional Office (see carrier under similar circumstances. of the proposed experiment is to ADDRESSES). Supplemental comments on the investigate the consequences of Authority: 16 U.S.C. 1801 et seq. ASLRRA request are due October 30, conducting a small-scale reduction 1998. Supplemental replies to such fishery in the area. If granted, the permit Dated: October 23, 1998. comments are due November 6, 1998. would allow fishing that otherwise Bruce C. Morehead, In a request filed October 22, 1998, would be prohibited by the FMP and its Acting Director, Office of Sustainable EEI asks that the supplemental reply implementing regulations. NMFS may Fisheries, National Marine Fisheries Service. comments be due on or before authorize such a permit pursuant to [FR Doc. 98–29085 Filed 10–29–98; 8:45 am] November 13, 1998. In support of its regulations at 50 CFR 600.745(b). BILLING CODE 3510±22±F 58360

Notices Federal Register Vol. 63, No. 210

Friday, October 30, 1998

This section of the FEDERAL REGISTER consideration. No scoping meetings are position and contentions. Vermont contains documents other than rules or planned at this time. Yankee Nuclear Power Corp. v. NRDC, proposed rules that are applicable to the ADDRESSES: Send written comments to 435 U.S. 519, 553 (1978). Also, public. Notices of hearings and investigations, Jackie Andrew, Project Coordinator, environmental objections that could be committee meetings, agency decisions and raised at the draft EIS stage but not rulings, delegations of authority, filing of Lowman Ranger District, 7359 Highway petitions and applications and agency 21, Lowman, ID 83637. raised until after completion of the final statements of organization and functions are FOR FURTHER INFORMATION CONTACT: EIS may be waived or dismissed by the examples of documents appearing in this Questions concerning the proposed courts. City of Angoon v. Hodel, 803 section. action and EIS should be directed to F.2d 1016, 1022 (9th Cir. 1986), and Jackie Andrew at 208–259–3361. Wisconsin Heritages, Inc. v. Harris, 490 SUPPLEMENTARY INFORMATION: The F. Supp. 1334, 1338 (E.D. Wis. 1980). DEPARTMENT OF AGRICULTURE proposal may result in the reduction in Because of these court rulings, it is very the number of acres in the Whitehawk important that those interested in this Forest Service IRA from the National Forest System. proposed action participate by the close Proposals that may substantially alter of the 45-day comment period so that Whitehawk Timber Sale, Boise National substantive comments and objections Forest, Valley County, ID the undeveloped character of an IRA require the preparation of an EIS. At this are made available to the Forest Service AGENCY: Forest Service, USDA. time, the Forest Service regards at a time when it can meaningfully ACTION: Notice of intent to prepare development of IRA’s as an issue to be consider them and respond to them in Environmental Impact Statement. addressed in the EIS. An alternative the final EIS. To assist the Forest which does not develop the Whitehawk Service in identifying and considering SUMMARY: The Boise National Forest IRA will be developed during the issues and concerns on the proposed will prepare an environmental impact analysis process. action, comments on the draft EIS statement (EIS) to document the The Forest Service is seeking should be as specific as possible. It is analysis and disclose the environmental information and comments from also helpful if comments refer to impacts of a proposed timber sale in the Federal, State, and local agencies, as specific pages or chapter of the draft Whitehawk subwatershed of the well as individuals and organizations EIS. Comments may also address the Deadwood drainage. who may be interested in, or affected by, adequacy of the draft EIS or the merits The Lowman Ranger District of the the proposed action. The Forest Service of the alternatives formulated and Boise National Forest proposes to invites written comments and discussed in the draft EIS. Reviewers harvest approximately 5,000 acres in the suggestions on the issues related to the may wish to refer to the Council on Whitehawk subwatershed, Township 11 proposal and the area being analyzed. Environmental Quality Regulations for North, Ranges 7 and 8 East, Boise Information received will be used in implementing the procedural provisions Meridian. Timber harvest would preparation of the draft EIS and final of the National Environmental Policy include regeneration harvest, EIS. For the most effective use, Act at 40 CFR 1503.3 in addressing commercial thinning, sanitation and comments should be submitted to the these points. Comments received in salvage. Several temporary roads are Forest Service within 30 days from the response to this solicitation, including proposed for construction to access date of publication of this Notice in the names and addresses of those who stands which can be harvested using Federal Register. The Responsible comment, will be considered part of the ground-based systems. A number of Official is David D. Rittenhouse, Forest public record on this proposed action currently closed roads would be opened Supervisor, Boise National Forest. The and will be available for public and/or reconstructed to facilitate decision to be made is whether to inspection. Comments submitted ground-based and helicopter yarding. harvest National Forest System timber anonymously will be accepted and No timber harvest would occur within and reduce natural and activity fuels considered; however, those who submit INFISH defined Riparian Habitat through prescribed fire. The draft EIS is anonymous comments will not have Conservation Areas, within the expected to be available for public standing to appeal the subsequent Deadwood Inventoried Roadless Area review in February 1999, with a final decision under 36 CFR 215 or 217. (IRA), or within the segment of the EIS estimated to be completed in May Additionally, pursuant to 7 CFR 1.27(d), Deadwood River designated as eligible 1999. The comment period on the draft any person may request the agency to for Wild designation under the Wild EIS will be 45 days from the date the withhold a submission from the public and Scenic Rivers Act in the Forest Environmental Protection Agency record by showing how the Freedom of Plan. Treatment harvest is proposed in publishes the notice of availability in Information Act (FOIA) permits such portions of the Whitehawk IRA. The the Federal Register. The Forest Service confidentiality. Persons requesting such proposed action is designed to maintain believes, at this early stage, it is confidentially should be aware that, water quality, wildlife habitat, and important to give reviewers notice of under the FOIA, confidentiality may be recreational opportunity spectrum in several court rulings related to public granted in only limited circumstances, the project area within Forest Plan participation in the environmental such as to protest trade secrets. The standards. review process. First, reviewers of draft Forest Service will inform the requester DATES: Written comments concerning EIS’s must structure their participation of the agency’s decision regarding the the scope of the analysis described in in the environmental review of the request for confidentiality, and where this Notice should be received by proposal so that it is meaningful and the request is denied, the agency will November 30, 1998 to ensure timely alerts an agency to the reviewer’s return the submission and notify the Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58361 requester that the comments may be SUMMARY: The Commission will hold a COMMENTS MUST BE RECEIVED ON OR resubmitted with or without name and special meeting to hear the status of a BEFORE: November 30, 1998. address within 10 days. lawsuit against the Commonwealth of ADDRESS: Committee for Purchase From Dated: October 19, 1998. Pennsylvania to stop the siting of a People Who Are Blind or Severely David D. Rittenhouse, regional low-level radioactive waste Disabled, Crystal Gateway 3, Suite 310, (LLRW) disposal facility, hear a report Forest Supervisor. 1215 Jefferson Davis Highway, from the Commonwealth of Arlington, Virginia 22202–4302. [FR Doc. 98–29029 Filed 10–29–98; 8:45 am] Pennsylvania on the status of FOR FURTHER INFORMATION CONTACT: BILLING CODE 3410±11±M suspending the siting process, review Beverly Milkman (703) 603–7740. and reconsider budgets for 1998–99 and SUPPLEMENTARY INFORMATION: This DEPARTMENT OF AGRICULTURE 1999–2000, consider amending the notice is published pursuant to 41 Commission’s bylaws relating to a U.S.C. 47(a)(2) and 41 CFR 51–2.3. Its Forest Service vacancy in the executive director purpose is to provide interested persons position and when the annual meeting an opportunity to submit comments on Klamath Provincial Advisory must be held, consider the disposition the possible impact of the proposed Committee (PAC); Meeting of the Commission’s remaining funds, actions. consider forming a siting restart AGENCY: Forest Service, USDA. committee, appointment of a Additions ACTION: Notice of meeting. representative to the Low-Level Waste If the Committee approves the SUMMARY: The Klamath Provincial Forum, consider performing a closeout proposed addition, all entities of the Advisory Committee will meet on audit of the Commission, consider Federal Government (except as November 12–13, 1998, in Weaverville, retaining Pepper Hamilton LLP as otherwise indicated) will be required to California. On Thursday, November 12, Counsel to the Commission, and procure the commodities and service the PAC will meet at the Weaverville consider renewing the investment listed below from nonprofit agencies Ranger Station, 210 Main Street agreement with the Pennsylvania Office employing persons who are blind or Highway 299, for a field trip leaving the of the Treasurer. have other severe disabilities. I certify Ranger Station at 11 a.m. and returning DATES: The meeting will be held on that the following action will not have at 5 p.m. On Friday, November 13, the Wednesday, December 2, 1998 from a significant impact on a substantial meeting will be held at the Trinity 9:00 a.m.–1:00 p.m. Most of the meeting number of small entities. The major County Board of Supervisor’s will be open to the public. An executive factors considered for this certification Conference Room in the Trinity County session closed to the public will be held were: Library, 211 N. Main Street, starting at from about 9:15 a.m. to 10:00 a.m. 1. The action will not result in any 8 a.m. and adjourning at 2:45 p.m. ADDRESSES: The meeting will be held at additional reporting, recordkeeping or Agenda items for Friday include: (1) the Harrisburg Hilton and Towers, One other compliance requirements for small Review of Thursday’s Field Trip; (2) North Second Street, Harrisburg, PA entities other than the small Fiscal Year 1998 Implementation 17101. organizations that will furnish the commodities and service to the Monitoring Report; (3) PAC Realignment FOR FURTHER INFORMATION CONTACT: Discussion; (4) Subcommittee Reports; Marc S. Tenan, Executive Director, at Government. 2. The action will result in and (5) a Public Comment Period. All 717–234–6295. PAC meetings are open to the public. authorizing small entities to furnish the Interested citizens are encouraged to Dated: October 22, 1998. commodities and service to the attend. Marc S. Tenan, Government. FOR FURTHER INFORMATION CONTACT: Executive Director. 3. There are no known regulatory Connie Hendryx, USDA, Kalmath [FR Doc. 98–29096 Filed 10–29–98; 8:45 am] alternatives which would accomplish National Forest, 1312 Fairlane Road, BILLING CODE 000±00±M the objectives of the Javits-Wagner- Yreka, California 96097; telephone 530– O’Day Act (41 U.S.C. 46–48c) in 841–4468. connection with the commodities and service proposed for addition to the Dated: October 26, 1998. COMMITTEE FOR PURCHASE FROM Procurement List. Comments on this Nancy J. Gibson, PEOPLE WHO ARE BLIND OR certification are invited. Commenters Administrative Officer. SEVERELY DISABLED should identify the statement(s) [FR Doc. 98–29091 Filed 10–29–98; 8:45 am] underlying the certification on which Procurement List; Proposed Additions BILLING CODE 3410±11±M they are providing additional and Deletions information. AGENCY: Committee for Purchase From The following commodities and APPALACHIAN STATES LOW-LEVEL People Who Are Blind or Severely service have been proposed for addition RADIOACTIVE WASTE COMMISSION Disabled. to Procurement List for production by the nonprofit agencies listed: ACTION: Proposed additions to and Special Meeting of the Commission To deletion from Procurement List. Commodities Hear the Status of the Siting of a Regional Low-Level Radioactive Waste SUMMARY: The Committee has received Dispenser, Glue Tape and Refill Disposal Facility and Consider Closing proposals to add to the Procurement List Cartridge the Commission's Administrative commodities and a service to be 8040–01–441–0169—Dispenser, Office in Harrisburg, Pennsylvania furnished by nonprofit agencies Adhesive Tape, Temporary AGENCY: Appalachian States Low-Level employing persons who are blind or 8040–01–441–0173—Replacement Radioactive Waste Commission. have other severe disabilities, and to Cartridge, Temporary delete commodities previously 8040–01–441–0175—Dispenser, ACTION: Notice of special meeting. furnished by such agencies. Adhesive Tape, Permanent 58362 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

8040–01–441–0178—Replacement services to be furnished by nonprofit 2. The action will not have a severe Cartridge, Permanent agencies employing persons who are economic impact on current contractors NPA: Industries for the Blind, Inc., blind or have other severe disabilities, for the commodities and services. Milwaukee, Wisconsin. and deletes from the Procurement List 3. The action will result in commodities and a service previously authorizing small entities to furnish the Service furnished by such agencies. commodities and services to the Recycling Service EFFECTIVE DATE: November 30, 1998. Government. 4. There are no known regulatory U.S. Army Garrison Hawaii (USAG–HI) ADDRESS: Committee for Purchase From People Who Are Blind or Severely alternatives which would accomplish installations the objectives of the Javits-Wagner- Aliamanu Military Reservation (AMR) Disabled, Crystal Gateway 3, Suite 310, O’Day Act (41U.S.C. 46–48c) in Fort Shafter (FS) 1215 Jefferson Davis Highway, Helemano Military Reservation (HMR) Arlington, Virginia 22202–4302. connection with the commodities and services proposed for addition to the Tripler Army Medical Center (TAMC) FOR FURTHER INFORMATION CONTACT: Procurement List. Wainae Recreation Center (WRC) Beverly Milkman (703) 603–7740. Accordingly, the following Wheeler Army Airfield (WAAF) SUPPLEMENTARY INFORMATION: On June Schofield Barracks (SB) commodities and services are hereby 19, August 28, September 11 and 18, added to the Procurement List: Island of Oahu, HI 1998, the Committee for Purchase From NPA: Goodwill Industries of Honolulu, People Who Are Blind or Severely Commodities Inc., Honolulu, Hawaii. Disabled published notices (63 FR Rag, Wiping Deletion 33631, 45996, 48696 and 49895) of proposed additions to and deletions 7920–01–454–1147 I certify that the following action will from the Procurement List: not have a significant impact on a Red Shop Towels substantial number of small entities. Additions 7920–01–454–1148 The major factors considered for this The following comments pertain to Services certification were: Warehouse Operation, the Dredge 1. The action will not result in any WHEELER Spare Parts Warehouse, 400 Call Center Services additional reporting, recordkeeping or Edwards Avenue, Suite F, Harahan, other compliance requirements for small Defense Logistics Information Service Louisiana. (DLIS) entities. Comments were received from the 2. The action will result in Battle Creek Customer Support Center current contractor for this service. The (CSC) authorizing small entities to furnish the contractor stated that tasks to be commodities to the Government. Federal Center, 74 North Washington performed did not appear to be suitable Avenue, Battle Creek, Michigan 3. There are no known regulatory for people who are blind or severely alternatives which would accomplish disabled. These tasks include operating Food Service the objectives of the Javits-Wagner- a forklift, making shipping crates, U.S. Marine Corps Base, Dining O’Day Act (41 U.S.C. 46–48c) in operating power tools, and lifting heavy Facilities, Quantico, Virginia connection with the commodities items. proposed for deletion from the These tasks will in fact be performed Janitorial/Custodial Procurement List. by people who are blind, one of whom Austin Memorial AFRC/AMSA #1, The following commodities has been is a qualified forklift operator. Austin, Texas proposed for deletion from the Accordingly, the Committee has Warehouse Operation Procurement List: concluded that performance of this Bedspread service is suitable for people who are The Dredge WHEELER Spare Parts Warehouse, 400 Edwards Avenue, 7210–00–728–0182 blind. After consideration of the material Suite F, Harahan, Louisiana 7210–00–728–0183 7210–00–728–0180 presented to it concerning capability of This action does not affect current qualified nonprofit agencies to provide contracts awarded prior to the effective Beverly L. Milkman, the commodities and services and date of this addition or options that may Executive Director. impact of the additions on the current be exercised under those contracts. [FR Doc. 98–29153 Filed 10–29–98; 8:45 am] or most recent contractors, the Deletions BILLING CODE 6353±01±P Committee has determined that the commodities and services listed below I certify that the following action will are suitable for procurement by the not have a significant impact on a COMMITTEE FOR PURCHASE FROM Federal Government under 41 U.S.C. substantial number of small entities. PEOPLE WHO ARE BLIND OR 46–48c and 41 CFR 51–2.4. The major factors considered for this SEVERELY DISABLED I certify that the following action will certification were: not have a significant impact on a 1. The action will not result in any Procurement List; Additions and substantial number of small entities. additional reporting, recordkeeping or Deletions The major factors considered for this other compliance requirements for small AGENCY: Committee for Purchase From certification were: entities. People Who Are Blind or Severely 1. The action will not result in any 2. The action will not have a severe Disabled. additional reporting, recordkeeping or economic impact on future contractors ACTION: Additions to and deletions from other compliance requirements for small for the commodities and services. the Procurement List. entities other than the small 3. The action will result in organizations that will furnish the authorizing small entities to furnish the SUMMARY: This action adds to the commodities and services to the commodities and services to the Procurement List commodities and Government. Government. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58363

4. There are no known regulatory COMMITTEE FOR PURCHASE FROM FOR FURTHER INFORMATION CONTACT: alternatives which would accomplish PEOPLE WHO ARE BLIND OR Contact Michael Miguel, Census the objectives of the Javits-Wagner- SEVERELY DISABLED Monitoring Board. Phone: 301–457– O’Day Act (41 U.S.C. 46—48c) in 5080. connection with the commodities and Deletion to the Procurement List; Fred T. Asbell, services deleted from the Procurement Correction Executive Director, Congressional Members. List. In the document appearing on page Mark Johnson, After consideration of the relevant 56905 FR Doc. 98–28468, in the issue of Executive Director, Presidential Members. matter presented, the Committee has October 23, 1998, in the second and [FR Doc. 98–29176 Filed 10–29–98; 8:45 am] determined that the commodities and third column, a Cap, Garrison with BILLING CODE 1179±00±M service listed below are no longer multiple NSNs, each denominated by a suitable for procurement by the Federal National Stock Number (NSN), is listed Government under 41 U.S.C. 46–48c as deleted from the Procurement List, DEPARTMENT OF COMMERCE and 41 CFR 51–2.4. effective November 23, 1998. This Accordingly, the following notice is corrected to delete only the Submission for OMB Review; commodities and service are hereby following NSNs from the Procurement Comment Request deleted from the Procurement List: List: The Department of Commerce has Commodities Cap, Garrison submitted to the Office of Management Cover, Bed 8405–01–232–5330 and Budget (OMB) for clearance the 8405–01–232–5331 following proposal for collection of 7210–01–116–7856 8405–01–232–5332 information under the provisions of the 7210–01–120–0679 8405–01–232–5333 Paperwork Reduction Act (44 U.S.C. 7210–01–120–8019 8405–01–232–5334 Chapter 35). 8405–01–232–5335 Agency: Bureau of the Census. 7210–01–116–7855 8405–01–232–5336 Title: Annual Survey of Government 7210–01–120–8018 8405–01–232–5337 Employment. 7210–01–120–8009 8405–01–232–5338 Form Number(s): E–1, E–2, E–3, E–4, 7210–01–120–8017 8405–01–232–5339 E–6, E–7, E–9. 7210–01–120–8014 8405–01–232–5340 OMB Approval Number: 0607–0452. 8405–01–232–5341 Type of Request: Reinstatement, 7210–01–120–8016 8405–01–232–5342 without change. 7210–01–116–7853 8405–01–232–5343 Burden: 21,437 hours. 7210–01–124–8303 8405–01–232–5344 Number of Respondents: 20,244. 7210–01–118–4085 8405–01–232–5345 Avg Hours Per Response: 1 hour and 8405–01–232–5346 7210–01–120–8022 4 minutes. 8405–01–232–5347 Needs and Uses: The Census Bureau 7210–01–120–8021 8405–01–232–5348 conducts the Annual Survey of 7210–01–122–5015 8405–01–232–5349 Government Employment every year in 7210–01–123–5149 8405–01–232–5350 March to collect data on the 8405–01–232–5351 7210–01–125–9250 employment, payrolls, and hours 8405–01–232–5352 worked by part-time employees of state 7210–01–120–8015 8405–01–232–5353 and local governments for one pay 7210–01–120–8012 8405–01–232–5354 period. Data are collected from all 7210–01–120–8011 8405–01–232–5355 agencies, departments, and institutions 7210–01–116–7859 Beverly L. Milkman, of the fifty state governments and from 7210–01–123–5148 Executive Director. a sample of all local governments [FR Doc. 98–29152 Filed 10–29–98; 8:45 am] (counties, cities, townships, school 7210–01–116–7858 BILLING CODE 6353±01±P districts, and special districts). 7210–01–116–7860 Data collection is primarily 7210–01–120–8020 accomplished through the use of mail 7210–01–116–7857 CENSUS MONITORING BOARD canvass questionnaires that are tailored 7210–01–116–7854 to the type of government, agency of Notice of Public Meeting institution being surveyed. Special data 7210–01–120–8013 reporting arrangements exists with 7210–01–124–7626 SUMMARY: This notice, in compliance many state governments and some local 7210–01–120–8010 with PL 105–119, sets forth the meeting governments to facilitate data reporting date, time and place for the third in ways that help minimize reporting Service business meeting of the full Census burden. Grounds Maintenance Monitoring Board. The meeting agenda Results from this survey are used will include an examination of ongoing directly in a variety of Federal U.S. Army Reserve Center, 1816 East preparations by the Census Bureau for programs: By the Bureau of Economic Main Street, Albemarle, North the 2000 Decennial Census. Analysis to develop the public sector Carolina DATES: The meeting will take place at components of the National Income and Beverly L. Milkman, 10:00 AM, Friday, November 6, 1998. Product Accounts and to develop Executive Director. LOCATION: The meeting will be held in personal income statistics; by the [FR Doc. 98–29154 Filed 10–29–98; 8:45 am] Room 2203, Rayburn House Office Department of Housing and Urban BILLING CODE 6353±01±P Building, Washington, DC 20515. Development for the allocation of 58364 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices operating subsidies to local housing dipped and electrolytic corrosion- ports have risen from 25,256 NT in 1996 authorities; and by the Bureau of Labor resistant carbon steel sheet, falling to 50,478 NT for the first 6 months of Statistics to benchmark the government within the physical dimensions 1998, while imports of the carbon sheet component in their monthly outlined in the scope of the order, are equivalent have decreased from 16,013 employment and earnings statistics circumventing the antidumping duty NT in 1996 to 5,975 NT for the first six program. Other users include state and order on corrosion-resistant carbon steel months of 1998. In addition, petitioner local government executives and flat products from Japan (58 FR 44163, alleges that the addition of boron is legislators, policy makers, economists, August 19, 1993). generally immaterial (if not detrimental) researchers, and the general public. EFFECTIVE DATE: October 30, 1998. to the performance characteristics of the merchandise, and that other than the We are requesting that the survey be FOR FURTHER INFORMATION CONTACT: reinstated, with change after a brief Maria Dybczak, or Rick Johnson, Import addition of boron, the overall characteristics of the alloy vis-a-vis the lapse in clearance. The current OMB Administration, International Trade carbon product are virtually identical. cleared expired September 30, 1998. Administration, U.S. Department of In fact, petitioner claims that, in some Since the collection will not be Commerce, 14th Street and Constitution circumstances, the addition of boron conducted again until March 1999, this Avenue, NW, Washington, DC, 20230; could, in fact, hamper the product’s will not present a problem. telephone: (202) 482–1398, or (202) Affected Public: State, local, or tribal formability. Petitioner also states that it 482–3818, respectively. government, Federal government. has never received a customer inquiry Frequency: Annually. Applicable Statute for any product with boron added for Respondent’s Obligation: Voluntary. Unless otherwise stated, all citations any application. Legal Authority: Title 13 USC, Section On September 29, 1998, in response to the statute are references to the 161. to the Department’s request for provisions effective January 1, 1995, the OMB Desk Officer: Nancy Kirkendall, additional information, the petitioner effective date of the amendments made (202) 395–7313. submitted an amendment to the request to the Tariff Act of 1930 (the Act) by the Copies of the above information for an anticircumvention inquiry. The Uruguay Round Agreements Act collection proposal can be obtained by petitioner identified the source of one of (URAA). In addition, unless otherwise calling or writing Linda Engelmeier, the samples tested. Provided with the DOC Forms Clearance Officer, (202) stated, all citations to the Department’s supplemental response was an affidavit 482–3272, Department of Commerce, regulations are references to the of Petitioner’s Senior Metallurgical Room 5327, 14th and Constitution regulations as codified at 19 CFR part Engineer. The Senior Engineer Avenue, NW, Washington, DC 20230. 351 (April 1998). evaluated the Japanese boron-added Written comments and SUPPLEMENTAL INFORMATION: product, and concluded that the sample recommendations for the proposed Background exhibited the same physical properties information collection should be sent as a non-boron product of similar within 30 days of publication of this On September 11, 1998, petitioner specification. In addition, the evaluator notice to Nancy Kirkendall, OMB Desk USS-POSCO Industries (‘‘UPI’’) concluded that the ‘‘physical properties Officer, Room 10201, New Executive requested that the Department conduct exhibited by the sample were not a Office Building, Washington, DC 20503. an anticircumvention inquiry pursuant result of the boron addition.’’ See to section 781(c) of the Tariff Act to Dated: October 21, 1998. Petitioner’s September 29, 1998 determine whether imports of boron- Linda Engelmeier, submission, Affidavit of Senior added Japanese hot-dipped and Metallurgical Engineer, page 1. Departmental Forms Clearance Officer, Office electrolytic corrosion-resistant steel of the Chief Information Officer. UPI secured a second sample from a sheet, falling within the physical different customer, and claims that it [FR Doc. 98–29107 Filed 10–29–98; 8:45 am] dimensions outlined in the scope of the also ‘‘exhibited the physical BILLING CODE 3510±07±P order, are circumventing the characteristics one would expect to antidumping duty order on corrosion- achieve using a steel with identical resistant carbon steel sheet from Japan. DEPARTMENT OF COMMERCE chemical analysis in all respects except See Antidumping Duty Orders: Certain the addition of boron.’’ See Petitioner’s International Trade Administration Corrosion Resistent Carbon Steel Flat September 29, 1998 submission, Products from Japan, 58 FR 44163 Affidavit of Karl W. Heralla, page 2. [A±588±824] (August 19, 1993). The petitioner maintains that during Petitioner alleges that Japanese the last three years, in discussions Corrosion-Resistant Carbon Steel Flat exporters have been circumventing the between UPI’s sales and marketing staff Products from Japan; Initiation of order by exporting hot-dipped and and with their customers (which were Anticircumvention Inquiry on eletrolytically zinc coated sheet to identified in Exhibit 4 of the petition), Antidumping Duty Order which small amounts of boron (0.0020 UPI has ‘‘been expressly or implicitly AGENCY: Import Administration, and 0.0025 percent by weight based on told that their customers do not need International Trade Administration, laboratory tests of two samples) have boron—and often do not know if boron Department of Commerce. been added. Carbon steel sheet, as is present’’ in the merchandise in ACTION: Notice of Initiation of defined by the HTSUS, has a maximum question. See Petitioner’s September 29, Anticircumvention Inquiry; Cut-to- boron content of less than 0.0008% by 1998 submission, Affidavit of Karl W. Length Carbon Steel Plate from Japan. weight. If the boron content is even Heralla, page 2. slightly higher, the products enter the In its request to initiate an SUMMARY: In response to a request from U.S. as a hot-dipped or electrolytic alloy anticircumvention inquiry, petitioner USS-POSCO Industries (‘‘UPI’’), the rather than carbon steel sheet, thereby stated its belief that Nippon Steel Department of Commerce (the circumventing the order. Corporation, NKK Corporation, and Department) is initiating an Petitioner argues that import statistics Nisshin Steel Corporation are producers anticircumvention inquiry to determine indicate that imports of hot-dipped and of the subject merchandise with boron whether imports of boron-added hot- electrolytic alloy sheet to West Coast added. In addition, petitioner further Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58365 claimed that Kawasaki Steel products of non-rectangular cross- Department notes that, while the statute Corporation, Kobe Steel Corporation, section where such cross-section is is silent as to what factors to consider and Sumitomo Corporation are capable achieved subsequent to the rolling in determining whether alterations are of producing and exporting subject process (i.e., products which have been properly considered ‘‘minor,’’ the merchandise with boron to the United ‘‘worked after rolling’’)—for example, legislative history of this provision States. See September 11, 1998 products which have been beveled or indicates that there are certain factors submission, at page 11. rounded at the edges. Excluded from which should be considered before this review are flat-rolled steel products reaching an anticircumvention Scope either plated or coated with tin, lead, determination. The scope language contained in the chromium, chromium oxides, both tin In conducting circumvention final determination and antidumping and lead (‘‘terne plate’’), or both inquiries under section 781(c) of the duty order, as amended by a partial chromium and chromium oxides (‘‘tin- Act, the Department has generally relied revocation, (see Certain Corrosion- free steel’’), whether or not painted, upon ‘‘such criteria as the overall Resistant Carbon Steel Flat Products varnished or coated with plastics or physical characteristics of the from Japan: Final Determination of other nonmetallic substances in merchandise, the expectations of the Changed Circumstances Antidumping addition to the metallic coating. Also ultimate users, the use of the Duty Administrative Review and excluded from this review are clad merchandise, the channels of marketing Revocation in part of Antidumping Duty products in straight lengths of 0.1875 and the cost of any modification relative Order, 62 FR 66848 (December 22, inch or more in composite thickness to the total value of the imported 1997)), describes the covered and of a width which exceeds 150 products.’’ S. Rep. No.71, 100th Cong., merchandise as follows: millimeters and measures at least twice 1st Sess. 100 (1987) (‘‘In applying this Although the Harmonized Tariff the thickness. Also excluded from this provision, the Commerce Department Schedule of the United States (HTS) review are certain clad stainless flat- should apply practical measurements subheadings are provided for rolled products, which are three-layered regarding minor alterations, so that convenience and customs purposes, our corrosion-resistant carbon steel flat- circumvention can be dealt with written descriptions of the scope of rolled products less than 4.75 effectively, even where such alterations these proceedings are dispositive. ... millimeters in composite thickness that to an article technically transform it into Corrosion-Resistant Carbon Steel Flat consist of a carbon steel flat-rolled a differently designated article.’’). Products from Japan product clad on both sides with As discussed below, the petitioner has stainless steel in a 20%–60%–20% presented evidence with respect to each These products include flat-rolled ratio. Also excluded from this review of these criteria. See Anticircumvention carbon steel products, of rectangular are certain corrosion-resistant carbon Petition, with attachments (September shape, either clad, plated, or coated steel flat products meeting the following 11, 1998). with corrosion-resistant metals such as specifications: widths ranging from 10 Overall Physical Characteristics zinc, aluminum, or zinc-, aluminum-, millimeters (0.394 inches) through 100 nickel- or iron-based alloys, whether or millimeters (3.94 inches); thicknesses, The current antidumping order covers not corrugated or painted, varnished or including coatings, ranging from 0.11 corrosion-resistant carbon steel sheet coated with plastics or other millimeters (0.004 inches) through 0.60 from Japan. At issue is hot-dipped and nonmetallic substances in addition to millimeters (0.024 inches); and a coating electrolytic corrosion-resistant steel the metallic coating, in coils (whether or that is from 0.003 millimeters (0.00012 sheet, falling within the dimensions not in successively superimposed inches) through 0.005 millimeters outlined in the scope of the order, to layers) and of a width of 0.5 inch or (0.000196 inches) in thickness and that which boron has been added. The greater, or in straight lengths which, if is comprised of three evenly applied petitioner has tested two samples of of a thickness less than 4.75 millimeters, layers, the first layer consisting of 99% Japanese origin, and determined that are of a width of 0.5 inch or greater and zinc, 0.5% cobalt, and 0.5% boron content ranged from 0.0020 to which measures at least 10 times the molybdenum, followed by a layer 0.0025 percent by weight. The petitioner thickness or if of a thickness of 4.75 consisting of chromate, and finally a claims that the addition of such small millimeters or more are of a width layer consisting of silicate. See also amounts of boron is immaterial to the which exceeds 150 millimeters and Antidumping Duty Orders: Certain performance characteristics of the final measures at least twice the thickness, as Corrosion-Resistant Carbon Steel Flat product. Continuing, the petitioner currently classifiable in the HTSUS Products and Certain Cut-to-Length maintains that metallurgical under item numbers 7210.30.0030, Carbon Steel Plate From Canada, 58 FR considerations for the addition of boron 7210.30.0060, 7210.41.0000, 44163 (August 19, 1993). would be to (1) increase the strength 7210.49.0030, 7210.49.0090, UPI describes the merchandise that is level in medium carbon sheets; (2) 7210.61.0000, 7210.69.0000, the subject of this anticircumvention minimize earing in a low carbon 7210.70.6030, 7210.70.6060, inquiry as hot-dipped and electrolytic specialty steel; or to (3) minimize 7210.70.6090, 7210.90.1000, carbon steel sheet to which boron has secondary work embrittlement in ultra 7210.90.6000, 7210.90.9000, been added. low carbon steels. Based on petitioner’s 7212.20.0000, 7212.30.1030, experience of the end-uses of the Initiation of Anticircumvention 7212.30.1090, 7212.30.3000, product, and since all of the steel sheet Proceeding 7212.30.5000, 7212.40.1000, at issue contains relatively higher levels 7212.40.5000, 7212.50.0000, Section 781(c) of the Act states that of carbon (0.0349% and above), none of 7212.60.0000, 7215.90.1000, the Department may find circumvention these considerations would be relevant, 7215.90.3000, 7215.90.5000, of an order when products which are of making the addition of boron 7217.20.1500, 7217.30.1530, the class or kind of merchandise subject metallurgically unnecessary. 7217.30.1560, 7217.90.1000, to an antidumping duty order have been 7217.90.5030, 7217.90.5060, ‘‘altered in form or appearance in minor Expectations of the Ultimate Users 7217.90.5090. Included in this review respects . . . whether or not included in According to petitioner’s description are corrosion-resistant flat-rolled the same tariff classification.’’ The of the sales and distribution process for 58366 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices the merchandise in question, the boron- ton, based on information obtained Based on our evaluation of the added material is sold to steel service through one of its parent companies. application, we determine that a formal centers, and is expected to be purchased This additional cost represents less than inquiry is warranted. Accordingly, we by fabricators who would further 0.1% of an approximate CIF value of are initiating a circumvention inquiry process the steel. Petitioner maintains $600. concerning the antidumping duty order that consumers/fabricators of the on corrosion-resistant carbon steel flat product would not rely on or benefit Analysis products from Japan, pursuant to from the presence of boron, and that the Other interested parties, Nippon Steel section 781(c) of the Tariff Act. In addition of the alloy into the carbon Corporation, NKK Corporation, accordance with 19 CFR 351.225(l)(2), if steel product offers no commercial Kawasaki Steel Corporation, and we issue an affirmative preliminary advantage. In addition, petitioner notes Sumitomo Metal Industries, Ltd., determination, we will then instruct the that many fabricators, most of which are submitted comments arguing: (1) that Customs Service to suspend liquidation its own customers, are not aware of the the Department cannot initiate a ‘‘minor and require a cash deposit of estimated presence of boron, and that it has never alterations’’ anticircumvention inquiry duties on the merchandise. received any inquiry or request for on a type of merchandise which the The Department will, following boron-added carbon steel for any Department has previously determined consultation with the interested parties, application. Finally, petitioner explains to be outside the scope of that order; establish a schedule for questionnaires that in order to form the steel for and (2) that the petitioner, UPI, does not and comments on the issues. The specific uses, the product must have Department intends to issue its final good ductility/formability have standing as a ‘‘domestic interested party.’’ determination within 300 days of the characteristics. Thus, according to date of publication of this initiation. petitioner, the presence of high levels of These interested parties base their This notice is published in boron would decrease the effectiveness first argument on the decision of the accordance with section 781(c) of the of these characteristics, and would be Court of International Trade (CIT) in Tariff Act (19 U.S.C. 1677j(c)) and 19 counterproductive. Hylsa, S.A. v. United States, Slip Op. CFR 351.225. 98–10 (February 3, 1998), which upheld Dated: October 23, 1998. Use of the Merchandise the earlier decision of the CIT in According to petitioner, there are two Wheatland Tube Co. v. United States, Robert S. LaRussa, primary uses for the merchandise in 973 F. Supp. 149 (CIT 1997). The Assistant Secretary for Import question: (1) Hot-dipped galvanized Department maintains that a Administration. steel sheet is used for metal studs, determination under 19 CFR 353.29(i)(1) [FR Doc. 98–29161 Filed 10–29–98; 8:45 am] siding, roofing, decking, gutters, that merchandise is outside the scope of BILLING CODE 3510±DS±P downspouts, culverts and other the order does not preclude the construction materials; (2) initiation of a ‘‘minor alterations’’ electrogalvanized sheet (primarily from anticircumvention inquiry on the same DEPARTMENT OF COMMERCE Japan) and petitioner’s hot-dipped sheet 1 merchandise . For the reasons International Trade Administration are used for computer chassis, frames discussed in Memorandum from Joseph and housing for gaming equipment. Spetrini to Robert S. LaRussa, [A±588±833] Petitioner maintains that there are no Anticircumvention Inquiry, Carbon uses of hot-dipped or electrolytically Steel Plate from Canada, (May 20, 1998) Stainless Steel Bar from Japan: Notice coated low carbon steel sheet containing the Department believes that it is not of Extension of Time Limits for boron that cannot be fully met without precluded in initiating a ‘‘minor Preliminary Results of Antidumping boron. The addition of boron neither alterations’’ anticircumvention inquiry Administrative Review responds to a new need in the market in the instant case. The interested AGENCY: Import Administration, nor improves the way existing technical parties have also argued that petitioner, International Trade Administration, needs are met. UPI, does not have standing as a Department of Commerce. Channels of Marketing ‘‘domestic interested party’’, since one ACTION: Notice of extension of time of the company’s parents is a South limits for preliminary results of Petitioner states that it sells Korean steel producer. However, we galvanized sheet without boron to antidumping duty administrative disagree with the parties’ conclusions. review. virtually the same West Coast steel As defined by section 771(9)(C) of the EFFECTIVE DATE: October 30, 1998. service centers that buy competing Act, an ‘‘interested party’’ is a products from Japan with boron, and manufacturer, producer, or wholesaler FOR FURTHER INFORMATION CONTACT: that since the boron-added and non- in the United States. Nippon Steel Minoo Hatten or Robin Gray, AD/CVD boron merchandise are used for Corporation, et al. do not contest that Enforcement, Import Administration, precisely the same products on the West UPI produces the subject merchandise International Trade Administration, Coast, the sales channels in that region in the United States. Therefore, the U.S. Department of Commerce, 14th are the same. Petitioner also provided Department finds that UPI has standing Street and Constitution Avenue, N.W., the names and addresses of service under the statute. See also Washington, D.C. 20230; telephone: centers most likely to be involved in the Memorandum from Joseph Spetrini to (202) 482–1690 or (202) 482–4023, distribution of the merchandise in Robert S. LaRussa, October 26, 1998, respectively. question for the West Coast. Anticircumvention Inquiry, A–588–824, The Applicable Statute Corrosion-Resistant Carbon Steel Flat Cost of Modification Unless otherwise indicated, all Products from Japan. Petitioner alleges that the cost of citations to the statute are references to adding boron to low carbon steel to the provisions effective January 1, 1995, 1 See Memorandum from Joseph Spetrini to attain a boron range of 0.0025 to 0.0045 Robert S. LaRussa, May 20, 1998, the effective date of the amendments percent by weight (similar to the sample Anticircumvention Inquiry, A–122–823, Carbon made to the Tariff Act of 1930 (the Act) examined by petitioner) is $0.55 per net Steel Plate from Canada, at 5 and 6. by the Uruguay Round Agreements Act. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58367

Extension of Time Limits for telephone (202) 482–0189 or (202) 482– with section 751(a)(2)(B)(ii) of the Act Preliminary Results 4198, respectively. and 19 CFR 351.214(d)(1), we are initiating a new shipper review of the The Department of Commerce (the Applicable Statute and Regulations Department) has received a request to antidumping duty order on stainless Unless otherwise indicated, all conduct an administrative review of the steel bar from India. We intend to issue citations to the Tariff Act of 1930, as the final results of this review not later antidumping duty order on stainless amended (‘‘the Act’’), are references to steel bar from Japan. On March 23, than 270 days after the day on which the provisions effective January 1, 1995, this new shipper review is initiated. 1998, the Department initiated this the effective date of the amendments administrative review covering the made to the Act by the Uruguay Round Antidumping duty Period to be re- period February 1, 1997, through Agreements Act. In addition, unless proceeding viewed January 31, 1998. otherwise indicated, all citations to Because of the complexity of certain section 351 of the regulations of the India: Stainless Steel issues in this case, it is not practicable Department of Commerce (‘‘the Bar, A±533±810: to complete this review within the time Jyoti Steel Department’’) are to the current limits mandated by section 751(a)(3)(A) Industries ...... 02/01/98±07/31/98 regulations, as published in the Federal Shah Alloys Ltd ... 02/01/98±07/31/98 of the Act (see Memorandum from Register on May 19, 1997 (62 FR 27296). Richard Moreland to Robert LaRussa, Parekh Bright SUPPLEMENTARY INFORMATION: Re: Extension of Time Limit for Bars Pvt. Ltd .... 02/01/98±07/31/98 Administrative Review of Stainless Background We will instruct the Customs Service Steel Bar from Japan, October 23, 1998). On August 18 and 31, 1998, the to allow, at the option of the importer, Therefore, in accordance with that Department received requests from Jyoti the posting, until the completion of the section, the Department is extending the Steel Industries (‘‘Jyoti’’), Shah Alloys review, of a bond or security in lieu of time limits for the preliminary results to Ltd. (‘‘Shah’’), and Parekh Bright Bars a cash deposit for each entry of the February 28, 1999. The Department Pvt. Ltd. (‘‘Parekh’’), pursuant to section merchandise exported by the above intends to issue the final results of 751(a)(2)(B) of the Act, and in listed companies, in accordance with 19 review 120 days after the publication of accordance with 19 CFR 351.214(b), for CFR 351.214(e). Interested parties must the preliminary results. This extension a new shipper review of the submit applications for disclosure under of the time limit is in accordance with antidumping duty order on stainless administrative protective orders in section 751(a)(3)(A) of the Act. steel bar from India. This order has an accordance with 19 CFR 351.305 and Dated: October 26, 1998. August semiannual anniversary month. 351.306. Richard W. Moreland, On August 25 and 31 and September 1, These initiations and this notice are Deputy Assistant Secretary for Import 1998, we asked that the initial requests in accordance with section 751(a) of the Administration. be supplemented. Jyoti submitted the Act (19 U.S.C. 1675(a)) and 19 CFR [FR Doc. 98–29162 Filed 10–29–98; 8:45 am] requisite additional information on 351.214 and 351.221(c)(1)(i). September 3, 1998; Shah and Parekh did BILLING CODE 3510±DS±P Dated: October 22, 1998. so on October 9 and 22, 1998, respectively. Accordingly, we are Richard W. Moreland, DEPARTMENT OF COMMERCE initiating a new shipper review for Jyoti, Deputy Assistant Secretary for Import Shah, and Parekh as requested. The Administration. International Trade Administration period of review is February 1, 1998 [FR Doc. 98–29163 Filed 10–29–98; 8:45 am] through July 31, 1998. BILLING CODE 3510±DS±P [A±533±810] Initiation of Review Stainless Steel Bar from India; DEPARTMENT OF COMMERCE Initiation of New Shipper Antidumping In accordance with 19 CFR Duty Administrative Review 351.214(b)(2) Jyoti, Shah, and Parekh each provided certification that it did International Trade Administration AGENCY: Import Administration, not export subject merchandise to the Applications for Duty-Free Entry of International Trade Administration, United States during the period of Scientific Instruments Department of Commerce. investigation; certification that, since ACTION: Notice of Initiation of New the investigation was initiated, it has Pursuant to Section 6(c) of the Shipper Antidumping Duty never been affiliated with any exporter Educational, Scientific and Cultural Administrative Review. or producer who exported the subject Materials Importation Act of 1966 (Pub. merchandise to the United States during L. 89–651; 80 Stat. 897; 15 CFR part SUMMARY: The Department of Commerce the period of investigation, including 301), we invite comments on the has received three requests to conduct a those not individually examined during question of whether instruments of new shipper administrative review of the investigation; documentation equivalent scientific value, for the the antidumping duty order on stainless establishing: (i) the date on which its purposes for which the instruments steel bar from India. In accordance with stainless steel bar was first entered, or shown below are intended to be used, section 751(a)(2)(B) of the Tariff Act and withdrawn from warehouse, for are being manufactured in the United 19 CFR 351.214(d), we are initiating this consumption, or if the exporter or States. administrative review. producer could not establish the date of Comments must comply with 15 CFR EFFECTIVE DATE: October 30, 1998. first entry, the date on which it first 301.5(a)(3) and (4) of the regulations and FOR FURTHER INFORMATION CONTACT: Zak shipped the subject merchandise for be filed within 20 days with the Smith or Stephanie Hoffman, Import export to the United States; (ii) the Statutory Import Programs Staff, U.S. Administration, International Trade volume of that and subsequent Department of Commerce, Washington, Administration, U.S. Department of shipments; and (iii) the date of the first D.C. 20230. Applications may be Commerce, 14th Street and Constitution sale to an unaffiliated customer in the examined between 8:30 A.M. and 5:00 Avenue, N.W., Washington, D.C. 20230; United States. Therefore, in accordance P.M. in Room 4211, U.S. Department of 58368 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Commerce, 14th Street and Constitution ACTION: Issuing a directive to the Sincerely, Avenue, N.W., Washington, D.C. Commissioner of Customs increasing a Troy H. Cribb, Docket Number: 98–048. Applicant: limit. Chairman, Committee for the Implementation North Carolina State University, of Textile Agreements. Purchasing Department, Box 7212, EFFECTIVE DATE: November 3, 1998. [FR Doc. 98–29165 Filed 10–29–98; 8:45 am] Raleigh, NC 27695. Instrument: Electron BILLING CODE 3510±DR±F Microscope, Model JEM–2010F. FOR FURTHER INFORMATION CONTACT: Manufacturer: JEOL Ltd., Japan. Naomi Freeman, International Trade Intended Use: The instrument will be Specialist, Office of Textiles and COMMITTEE FOR THE used to study the microstructure and Apparel, U.S. Department of Commerce, IMPLEMENTATION OF TEXTILE chemistry of various semiconductors, (202) 482–4212. For information on the AGREEMENTS semiconductor-based heterostructures, quota status of this limit, refer to the metals, metal alloys, composites, and Quota Status Reports posted on the Adjustment of Sublimits for Certain ceramics including high-temperature bulletin boards of each Customs port or Cotton and Man-Made Fiber Textile superconductors and relative call (202) 927–5850. For information on Products Produced or Manufactured in multilayered structures. In addition, the embargoes and quota re-openings, call Singapore instrument will be used for students in (202) 482–3715. October 27, 1998. the TEM course MAT 515 where they SUPPLEMENTARY INFORMATION: AGENCY: Committee for the learn theoretical aspects of electron Authority: Section 204 of the Agricultural Implementation of Textile Agreements microscopy. Application accepted by Act of 1956, as amended (7 U.S.C. 1854); (CITA). Commissioner of Customs: October 1, Executive Order 11651 of March 3, 1972, as ACTION: Issuing a directive to the 1998. amended. Docket Number: 98–049. Applicant: Commissioner of Customs adjusting North Carolina State University, The current limit for Categories 347/ sublimits. 348 is being increased for carryforward. Purchasing Department, Campus Box EFFECTIVE DATE: October 30, 1998. 7212, Raleigh, NC 27695–7212. A description of the textile and FOR FURTHER INFORMATION CONTACT: Instrument: Oxylite Oxygen Monitor, apparel categories in terms of HTS Janet Heinzen, International Trade Model 2000. Manufacturer: Oxford numbers is available in the Optonix Ltd., United Kingdom. Specialist, Office of Textiles and CORRELATION: Textile and Apparel Apparel, U.S. Department of Commerce, Intended Use: The instrument will be Categories with the Harmonized Tariff used to measure oxygenation in (202) 482–4212. For information on the Schedule of the United States (see quota status of these limits, refer to the spontaneous canine and feline tumors, a Federal Register notice 62 FR 66057, model of human cancer. These Quota Status Reports posted on the published on December 17, 1997). Also bulletin boards of each Customs port or measurements will be done as part of see 62 FR 67626, published on ongoing studies of experimental cancer call (202) 927–5850. For information on December 29, 1997. embargoes and quota re-openings, call treatment, and the study of tumor Troy H. Cribb, physiology. The instrument will also be (202) 482–3715. Chairman, Committee for the Implementation used to measure changes in tumor SUPPLEMENTARY INFORMATION: of Textile Agreements. oxygenation produced by interventions Authority: Section 204 of the Agricultural such as breathing toxic gases or through Committee for the Implementation of Textile Act of 1956, as amended (7 U.S.C. 1854); use of vasoactive agents. The objectives Agreements Executive Order 11651 of March 3, 1972, as of these experiments will be to more October 27, 1998. amended. completely classify the extent of tumor Commissioner of Customs, The current sublimits for Categories oxygenation, to relate oxygen Department of the Treasury, Washington, DC 347 and 348 are being adjusted for concentrations to treatment with 20229. swing and carryover. radiation and/or hyperthermia and to Dear Commissioner: This directive A description of the textile and assess changes in oxygenation during amends, but does not cancel, the directive apparel categories in terms of HTS treatment. Application accepted by issued to you on December 19, 1997, by the numbers is available in the Commissioner of Customs: October 6, Chairman, Committee for the Implementation CORRELATION: Textile and Apparel of Textile Agreements. That directive 1998. Categories with the Harmonized Tariff concerns imports of certain cotton, wool, Frank W. Creel, man–made fiber, silk blend and other Schedule of the United States (see Director, Statutory Import Programs Staff. vegetable fiber textiles and textile products, Federal Register notice 62 FR 66057, [FR Doc. 98–29164 Filed 10–29–98; 8:45 am] produced or manufactured in Mauritius and published on December 17, 1997). Also BILLING CODE 3510±DS±P exported during the twelve-month period see 62 FR 67628, published on which began on January 1, 1998 and extends December 29, 1997. through December 31, 1998. Troy H. Cribb, Effective on November 3, 1998, you are COMMITTEE FOR THE Chairman, Committee for the Implementation directed to increase the limit for Categories of Textile Agreements. IMPLEMENTATION OF TEXTILE 347/348 to 1,099,477 dozen 1, as provided for AGREEMENTS under the Uruguay Round Agreement on Committee for the Implementation of Textile Textiles and Clothing. Agreements Adjustment of an Import Limit for The Committee for the Implementation of October 27, 1998. Certain Cotton Textile Products Textile Agreements has determined that this Commissioner of Customs, Produced or Manufactured in Mauritius action falls within the foreign affairs Department of the Treasury, Washington, DC exception to the rulemaking provisions of 5 20229. October 27, 1998. U.S.C. 553(a)(1). Dear Commissioner: This directive AGENCY: Committee for the amends, but does not cancel, the directive Implementation of Textile Agreements 1 The limit has not been adjusted to account for issued to you on December 19, 1997, by the (CITA). any imports exported after December 31, 1997. Chairman, Committee for the Implementation Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58369 of Textile Agreements. That directive www.customs.ustreas.gov. For Twelve-month restraint concerns imports of certain cotton, wool and information on embargoes and quota re- Category limit man-made fiber textile products, produced or openings, call (202) 482–3715. manufactured in Singapore and exported 239pt. 1 ...... 1,978,854 kilograms. during the twelve-month period which began SUPPLEMENTARY INFORMATION: Levels in Group I on January 1, 1998 and extends through Authority: Section 204 of the Agricultural 200 ...... 1,291,522 kilograms. December 31, 1998. Act of 1956, as amended (7 U.S.C. 1854); 218 ...... 20,433,505 square Effective on October 30, 1998, you are Executive Order 11651 of March 3, 1972, as meters. directed to adjust the sublimits for the amended. 219 ...... 6,888,123 square me- following categories, as provided for under The import restraint limits for textile ters. the Uruguay Round Agreement on Textiles products, produced or manufactured in 300 ...... 5,166,093 kilograms. and Clothing: 301±P 2 ...... 5,166,093 kilograms. Thailand and exported during the 301±O 3 ...... 1,033,220 kilograms. period January 1, 1999 through 313±O 4 ...... 24,108,430 square December 31, 1999 are based on limits meters. notified to the Textiles Monitoring Body 314±O 5 ...... 55,104,980 square Category Adjusted twelve-month limit 1 pursuant to the Uruguay Round meters. Agreement on Textiles and Clothing 315±O 6 ...... 34,440,612 square 347/348 ...... 1,244,440 dozen of (ATC). meters. which not more than In the letter published below, the 317±O/326±O 7 ...... 14,458,502 square 777,774 dozen shall Chairman of CITA directs the meters. be in Category 347 Commissioner of Customs to establish 363 ...... 22,386,398 numbers. and not more than 369±D 8 ...... 246,251 kilograms. the 1999 limits. 369±S 9 ...... 344,406 kilograms. 604,936 dozen shall Effective on January 1, 1999, a visa be in Category 348. 603 ...... 2,366,980 kilograms. will no longer be required for products 604 ...... 805,793 kilograms of 1 The limits have not been adjusted to ac- integrated in the second stage of the which not more than count for any imports exported after December integration of textiles and clothing into 516,609 kilograms 31, 1997. GATT 1994 from WTO member shall be in Category The Committee for the Implementation of countries (see 63 FR 53881, published 604±A 10. Textile Agreements has determined that on October 7, 1998). A visa will 607 ...... 3,444,059 kilograms. these actions fall within the foreign affairs continue to be required for non- 611±O 11 ...... 13,172,735 square exception to the rulemaking provisions of 5 integrated products. For quota purposes meters. U.S.C. 553(a)(1). 613/614/615 ...... 52,050,604 square only, products remaining in categories meters of which not Sincerely, partially integrated will continue to be Troy H. Cribb, more than designated by the designator ‘‘pt.’’ 30,307,739 square Chairman, Committee for the Implementation A description of the textile and meters shall be in of Textile Agreements. apparel categories in terms of HTS Categories 613/615 [FR Doc. 98–29167 Filed 10–29–98; 8:45 am] numbers is available in the and not more than BILLING CODE 3510±DR±F CORRELATION: Textile and Apparel 30,307,739 square Categories with the Harmonized Tariff meters shall be in Schedule of the United States (see Category 614. COMMITTEE FOR THE Federal Register notice 62 FR 66057, 617 ...... 18,796,051 square meters. IMPLEMENTATION OF TEXTILE published on December 17, 1997). AGREEMENTS 619 ...... 7,749,137 square me- Information regarding the 1999 ters. CORRELATION will be published in the Announcement of Import Restraint 620 ...... 7,749,137 square me- Federal Register at a later date. Limits for Certain Cotton, Wool, Man- ters. Troy H. Cribb, 625/626/627/628/629 15,181,426 square Made Fiber, Silk Blend and Other meters of which not Vegetable Fiber Textiles and Textile Chairman, Committee for the Implementation of Textile Agreements. more than Products Produced or Manufactured in 12,054,214 square Thailand Committee for the Implementation of Textile meters shall be in Agreements Category 625. October 27, 1998. October 27, 1998. 669±P 12 ...... 7,263,806 kilograms. AGENCY: Committee for the Commissioner of Customs, Group II Implementation of Textile Agreements Department of the Treasury, Washington, DC 237, 331±348, 350± 315,975,858 square (CITA). 20229. 352, 359±H 13, meters equivalent. 359pt. 14, 431, ACTION: Dear Commissioner: Pursuant to section Issuing a directive to the 433±438, 440, Commissioner of Customs establishing 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 442±448, limits. 15 11651 of March 3, 1972, as amended, and the 459pt. , 631, 633±652, 659± EFFECTIVE DATE: January 1, 1999. Uruguay Round Agreement on Textiles and Clothing (ATC), you are directed to prohibit, H 16, 659pt. 17, FOR FURTHER INFORMATION CONTACT: Ross effective on January 1, 1999, entry into the 831, 833±838, Arnold, International Trade Specialist, United States for consumption and 840±858 and Office of Textiles and Apparel, U.S. withdrawal from warehouse for consumption 859pt. 18, as a Department of Commerce, (202) 482– of cotton, wool, man-made fiber, silk blend group. 4212. For information on the quota and other vegetable fiber textiles and textile Sublevels in Group II 331/631 ...... 1,879,793 dozen pairs. status of these limits, refer to the Quota products in the following categories, produced or manufactured in Thailand and 334/634 ...... 671,592 dozen. Status Reports posted on the bulletin exported during the twelve-month period 335/635/835 ...... 533,829 dozen. boards of each Customs port, call (202) beginning on January 1, 1999 and extending 336/636 ...... 344,406 dozen. 927–5850, or refer to the U.S. Customs through December 31, 1999, in excess of the 338/339 ...... 2,019,727 dozen. website at http:// following limits: 340 ...... 309,966 dozen. 58370 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Twelve-month restraint The limits set forth above are subject to (CITA) has determined that H.H. Cutler Category limit adjustment pursuant to the provisions of the has violated the requirements for ATC and administrative arrangements participation in the Special Access 341/641 ...... 731,863 dozen. notified to the Textiles Monitoring Body. Products in the above categories exported Program, and has suspended H.H. Cutler 342/642 ...... 637,152 dozen. from participation in the Program for 345 ...... 327,186 dozen. during 1998 shall be charged to the 347/348/847 ...... 899,760 dozen. applicable category limits for that year (see the period beginning October 26, 1998 351/651 ...... 258,304 dozen. directives dated December 5, 1997) to the and ending January 25, 1999. 359±H/659±H ...... 1,510,937 kilograms. extent of any unfilled balances. In the event Through the letter to the 433 ...... 9,782 dozen. the limits established for that period have Commissioner of Customs published 434 ...... 12,075 dozen. been exhausted by previous entries, such below, CITA directs the Commissioner 435 ...... 54,869 dozen. products shall be charged to the limits set to prohibit entry of products under the forth in this directive. 438 ...... 18,112 dozen. Special Access Program by or on behalf 442 ...... 21,033 dozen. The conversion factors for merged Categories 359–H/659–H and 638/639 are of H.H. Cutler during the period October 638/639 ...... 2,380,393 dozen. 26, 1998 through January 25, 1999, and 640 ...... 568,269 dozen. 11.5 and 12.96, respectively. 645/646 ...... 344,406 dozen. Effective on January 1, 1999, a visa will no to prohibit entry by or on behalf of H.H. 647/648 ...... 1,226,086 dozen. longer be required for products integrated in Cutler under the Program of products the second stage of the integration of textiles manufactured from fabric exported from 1 Category 239pt.: only HTS number and clothing into GATT 1994 from WTO the United States during that period. 6209.20.5040 (diapers). member countries (see directive dated 2 Category 301±P: only HTS numbers September 30, 1998). A visa will continue to Requirements for participation in the 5206.21.0000, 5206.22.0000, 5206.23.0000, be required for non-integrated products. For Special Access Program are available in 5206.24.0000, 5206.25.0000, 5206.41.0000, quota purposes only, products remaining in Federal Register notice 63 FR 16474, 5206.42.0000, 5206.43.0000, 5206.44.0000 categories partially integrated will continue published on April 3, 1998. and 5206.45.0000. to be designated by the designator ‘‘pt.’’ 3 Category 301±O: only HTS numbers Troy H. Cribb, In carrying out the above directions, the 5205.21.0020, 5205.21.0090, 5205.22.0020, Chairman, Committee for the Implementation Commissioner of Customs should construe 5205.22.0090, 5205.23.0020, 5205.23.0090, of Textile Agreements. 5205.24.0020, 5205.24.0090, 5205.26.0020, entry into the United States for consumption 5205.26.0090, 5205.27.0020, 5205.27.0090, to include entry for consumption into the Committee for the Implementation of Textile 5205.28.0020, 5205.28.0090, 5205.41.0020, Commonwealth of Puerto Rico. Agreements 5205.41.0090, 5205.42.0020, 5205.42.0090, The Committee for the Implementation of October 27, 1998. 5205.43.0020, 5205.43.0090, 5205.44.0020, Textile Agreements has determined that Commissioner of Customs, 5205.44.0090, 5205.46.0020, 5205.46.0090, these actions fall within the foreign affairs Department of the Treasury, Washington, DC 5205.47.0020, 5205.47.0090, 5205.48.0020 exception of the rulemaking provisions of 5 and 5205.48.0090. U.S.C. 553(a)(1). 20229. 4Category 313±O: all HTS numbers except Sincerely, Dear Commissioner: The purpose of this 5208.52.3035, 5208.52.4035 and directive is to notify you that the Committee 5209.51.6032. Troy H. Cribb, 5Category 314±O: all HTS numbers except for the Implementation of Textile Agreements Chairman, Committee for the Implementation has suspended H.H. Cutler from participation 5209.51.6015. of Textile Agreements. 6Category 315±O: all HTS numbers except in the Special Access Program for the period 5208.52.4055. [FR Doc. 98–29168 Filed 10–29–98; 8:45 am] October 26, 1998 through January 25, 1999. 7Category 317±O: all HTS numbers except BILLING CODE 3510±DR±F You are therefore directed to prohibit entry 5208.59.2085; Category 326±O: all HTS num- of products under the Special Access bers except 5208.59.2015, 5209.59.0015 and Program by or on behalf of H.H. Cutler during 5211.59.0015. the period October 26, 1998 through January 8 Category 369±D: only HTS numbers COMMITTEE FOR THE 6302.60.0010, 6302.91.0005 and IMPLEMENTATION OF TEXTILE 25, 1999. You are further directed to prohibit 6302.91.0045. AGREEMENTS entry of products under the Special Access 9 Category 369±S: only HTS number Program by or on behalf of H.H. Cutler 6307.10.2005. Denial of Participation in the Special manufactured from fabric exported from the 10 Category 604±A: only HTS number Access Program United States during the period October 26, 5509.32.0000. 1998 through January 25, 1999. 11 Category 611±O: all HTS numbers except Sincerely, 5516.14.0005, 5516.14.0025 and October 27, 1998. 5516.14.0085. AGENCY: Committee for the Troy H. Cribb, 12 Category 669±P: only HTS numbers Implementation of Textile Agreements Chairman, Committee for the Implementation 6305.32.0010, 6305.32.0020, 6305.33.0010, (CITA). of Textile Agreements. 6305.33.0020 and 6305.39.0000. 13 Category 359±H: only HTS numbers ACTION: Issuing a directive to the [FR Doc. 98–29166 Filed 10–29–98; 8:45 am] 6505.90.1540 and 6505.90.2060. Commissioner of Customs suspending BILLING CODE 3510±DR±F 14 Category 359pt.: all HTS numbers except participation in the Special Access 6505.90.1540, 6505.90.2060 (Category 359± Program. H); and 6406.99.1550. 15 DEPARTMENT OF DEFENSE Category 459pt.: all HTS numbers except EFFECTIVE DATE: 6405.20.6030, 6405.20.6060, 6405.20.6090, October 26, 1998. 6406.99.1505 and 6406.99.1560. FOR FURTHER INFORMATION CONTACT: Lori Office of the Secretary 16 Category 659±H: only HTS numbers E. Mennitt, International Trade 6502.00.9030, 6504.00.9015, 6504.00.9060, Specialist, Office of Textiles and Submission for OMB Review; 6505.90.5090, 6505.90.6090, 6505.90.7090 and 6505.90.8090. Apparel, U.S. Department of Commerce, Comment Request 17 Category 659pt.: all HTS numbers except (202) 482–3400. 6502.00.9030, 6504.00.9015, 6504.00.9060, ACTION: Notice. 6505.90.5090, 6505.90.6090, 6505.90.7090, SUPPLEMENTARY INFORMATION: 6505.90.8090 (Category 659±H); Authority: Section 204 of the Agricultural The Department of Defense has 6406.99.1510 and 6406.99.1540. Act of 1956, as amended (7 U.S.C. 1854); submitted to OMB for clearance, the 18 Category 859pt.: only HTS numbers Executive Order 11651 of March 3, 1972, as following proposal for collection of 6115.19.8040, 6117.10.6020, 6212.10.5030, amended. 6212.10.9040, 6212.20.0030, 6212.30.0030, information under the provisions of the 6212.90.0090, 6214.10.2000 and The Committee for the Paperwork Reduction Act (44 U.S.C. 6214.90.0090. Implementation of Textile Agreements Chapter 35). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58371

Title, associated form, and OMB Paperwork Reduction Act (44 U.S.C. Committee established by Article 146(a), number: Request for Verification of Chapter 35). Uniform Code of Military Justice, 10 Birth; DD Form 372; OMB Number Title, associated form, and OMB U.S.C. § 946(a), to be held at the Naval 0704–0006. number: United States Air Force Base Brig and the Charleston Air Force Type of request: Reinstatement. Academy Application (Precandidate Base, Charleston, South Carolina, on Number of respondents: 100,000. Questionnaire/PCQ); USAFA Form 149; Friday, November 6, 1998. The agenda Respones per respondent: 1. OMB Number 0701–0087. for this meeting will include Annual responses: 100,000. Type of request: Reinstatement. consideration of proposed changes to Average burden per response: 5 Number of respondents: 11,000. the Uniform Code of Military Justice minutes (0.083 hours). Responses per respondent: 1. and the Manual for Courts-Martial, Annual burden hours: 8,300. Annual responses: 11,000. United States, 1984, military Needs and uses: Title 10, U.S.C. 505, Average burden per response: 24 confinement facilities, and other matters 3253, 5013, and 8253, require applicants minutes. relating to the operation of the Uniform meet minimum and maximum age and Annual burden hours: 4,400. Code of Military Justice throughout the citizenship requirements for enlistment Needs and uses: The information Armed Forces. collection requirement is necessary to into the Armed Forces (including the DATE: November 6, 1998. obtain data on the candidate’s high Coast Guard). If an applicant is unable FOR FURTHER INFORMATION CONTACT: school academic background for use in to provide a birth certificate, the Thomas F. Granahan, Clerk of Court, recruiter will forward a DD Form 372, determining eligibility and selection to the Air Force Academy. The United States Court of Appeals for the ‘‘Request for Verification of Birth,’’ to a Armed Forces, 450 E Street, Northwest, State or local agency requesting information collected on this form is required by 10 U.S.C. 9346. The Washington, D.C. 20042–0001, verification of the applicant’s birth date. telephone (202) 761–1448. This verification of birth ensures that information is necessary in order to the applicant does not fall outside the provide a preliminary assessment of an Dated: October 26, 1998. age limitations, and that the applicant’s applicant’s qualifications for admission. Patricia L. Toppings, place of birth supports the citizenship Without this early evaluation, both the Alternate OSD Federal Register Liaison status claimed by the applicant. Academy and applicant might proceed Officer, Department of Defense. Affected public: State, local or tribal well into the admission cycle without a [FR Doc. 98–29060 Filed 10–29–98; 8:45 am] governments. true understanding of the applicant’s BILLING CODE 5000±04±M Frequency: On occasion. chances for admission. Respondent’s obligation: Required to Affected public: Individuals or obtain or retain benefits. households. DEPARTMENT OF DEFENSE OMB desk officer: Mr. Edward C. Frequency: On occasion. Office of the Secretary Springer. Respondent’s obligation: Required to obtain or retain benefits. Written comments and Defense Intelligence Agency, Science recommendations on the proposed OMB Desk Officer: Mr. Edward C. Springer. and Technology Advisory Board information collection should be sent to Closed Panel Meeting Mr. Springer at the Office of Written comments and Management and Budget, Desk Officer recommendations on the proposed AGENCY: Department of Defense, Defense for DOD, Room 10236, New Executive information collection should be sent to Intelligence Agency. Office Building, Washington, DC 20503. Mr. Springer at the Office of ACTION: Notice. DOD clearance officer: Mr. Robert Management and Budget, Desk Officer Cushing. for DoD, Room 10236, New Executive SUMMARY: Pursuant to the provisions of Written requests for copies of the Office Building, Washington, DC 20503. subsection (d) of Section 10 of Public information collection proposal should DOD Clearance Officer: Mr. Robert Law 92–463, as amended by Section 5 be sent to Mr. Cushing, WHS/DIOR, Cushing. of Public Law 94–409, notice is hereby 1215 Jefferson Davis Highway, Suite Written requests for copies of the given that a closed meeting of the DIA 1204, Arlington, VA 22202–4302. information collection proposal should Science and Technology Advisory be sent to Mr. Cushing, WHS/DIOR, Board has been scheduled as follows: Dated: October 26, 1998. 1215 Jefferson Davis Highway, Suite DATES: 18 November 1998 (800am to Patricia L. Toppings, 1204, Arlington, VA 22202–4302. 1600pm). Alternate OSD Federal Register Liaison Dated: October 26, 1998. ADDRESSES: The Defense Intelligence Officer, Department of Defense. Patricia L. Toppings, Agency, 3100 Clarendon Blvd, [FR Doc. 98–29058 Filed 10–29–98; 8:45 am] Alternate OSD Federal Register Liaison Arlington, VA 22201. BILLING CODE 5000±04±M Officer, Department of Defense. DATES: 19 November 1998, (800am to [FR Doc. 98–29059 Filed 10–29–98; 8:45 am] 1600pm). DEPARTMENT OF DEFENSE BILLING CODE 5000±04±M ADDRESSES: The Defense Intelligence Agency, Bolling AFB, Washington, DC Office of the Secretary 20340. DEPARTMENT OF DEFENSE FOR FURTHER INFORMATION CONTACT: Maj. Submission for OMB Review; Donald R. Culp, Jr., USAF, Executive Office of the Secretary Comment Request Secretary, DIA Science and Technology ACTION: Notice. U.S. Court of Appeals for the Armed Advisory Board, Washington, D.C. Forces Code Committee Meeting 20340–1328 (202) 231–4930. The Department of Defense has SUPPLEMENTARY INFORMATION: The entire submitted to OMB for clearance, the ACTION: Notice of Public Meeting. meeting is devoted to the discussion of following proposal for collection of SUMMARY: This notice announces the classified information as defined in information under the provisions of the forthcoming public meeting of the Code Section 552b(c)(1), Title 5 of the U.S. 58372 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Code, and therefore will be closed to the DEPARTMENT OF DEFENSE FOR FURTHER INFORMATION CONTACT: public. The Board will receive briefings Maj. Donald R. Culp, Jr., USAF, on and discuss several current critical Office of the Secretary Executive Secretary, DIA Science and intelligence issues and advise the Technology Advisory Board, Defense Intelligence Agency, Science Director, DIA, on related scientific and Washington, D.C. 20340–1328 (202) and Technology Advisory Board technical matters. 231–4930. Closed Panel Meeting Dated: 26 October 1998. Dated: October 26, 1998. Patricia L. Toppings, AGENCY: Department of Defense, Defense Patricia L. Toppings, Intelligence Agency. Alternate OSD Federal Register Liaison Alternate OSD Federal Register Liaison Officer, Department of Defense. ACTION: Notice. Officer, Department of Defense. [FR Doc. 98–29056 Filed 10–29–98; 8:45 am] [FR Doc. 98–29053 Filed 10–29–98; 8:45 am] SUMMARY: Pursuant to the provisions of BILLING CODE 5000±04±M BILLING CODE 5000±04±M Subsection (d) of Section 10 of Public Law 92–463, as amended by Section 5 of Public Law 94–409, notice is hereby DEPARTMENT OF DEFENSE DEPARTMENT OF DEFENSE given that a closed meeting of the DIA Science and Technology Advisory Office of the Secretary Office of the Secretary Board has been scheduled as follows: Defense Intelligence Agency, Science Defense Intelligence Agency, Science DATES: 3 November 1998 (800am to 1600pm). and Technology Advisory Board and Technology Advisory Board Closed Panel Meeting Closed Panel Meeting ADDRESSES: The Defense Intelligence Agency, Bolling AFB, Washington, DC AGENCY: Department of Defense, Defense AGENCY: Department of Defense, Defense 20340. Intelligence Agency. Intelligence Agency. FOR FURTHER INFORMATION CONTACT: ACTION: Notice. Maj Donald R. Culp, Jr., USAF, ACTION: Notice. Executive Secretary, DIA Science and SUMMARY: On September 30, 1998, the Technology Advisory Board, Defense Intelligence Agency published SUMMARY: Pursuant to the provisions of Washington, D.C. 20340–1328 (202) an announcement (63 FR 52245) for a Subsection (d) of Section 10 of Public 231–4930. closed meeting on 15 October 1998. law 92–463, as amended by Section 5 of SUPPLEMENTARY INFORMATION: The entire This meeting was cancelled due to the Public Law 94–409, notice is hereby meeting is devoted to the discussion of lack of an approved DOD Budget. given that a closed meeting of the DIA classified information as defined in ADDRESSES: The Defense Intelligence Science and Technology Advisory Section 552b(c)(1), Title 5 of the U.S. Agency, 7400 Defense Pentagon, Board has been scheduled as follows: Code, and therefore will be closed to the Washington, DC 20301–7400. public. The Board will receive briefings DATE: 10 November 1998 (800 a.m. to FOR FURTHER INFORMATION CONTACT: on and discuss several current critical 1600 p.m.) Maj. Donald R. Culp, Jr., USAF, intelligence issues and advise the Executive Secretary, DIA Science and ADDRESS: The Defense Intelligence Director, DIA, on related scientific and Technology Advisory Board, Agency, Bolling AFB, Washington, DC technical matters. Washington, D.C. 20340–1328 (202) 20340–5100. Dated: 26 October 1998. 231–4930. FOR FURTHER INFORMATION CONTACT: Maj. Patricia L. Toppings, Dated: October 26, 1998. Donald Culp, USAF, Executive Alternate OSD Federal Register Liaison Patricia L. Toppings, Officer, Department of Defense. Secretary, DIA Science and Technology Alternate OSD Federal Register Liaison Advisory Board, Washington, D.C. [FR Doc. 98–29055 Filed 10–29–98; 8:45 am] Officer, Department of Defense. 20340–1328 (202) 231–4930. BILLING CODE 5000±04±M [FR Doc. 98–29057 Filed 10–29–98; 8:45 am] SUPPLEMENTARY INFORMATION: The entire BILLING CODE 5000±04±M meeting is devoted to the discussion of DEPARTMENT OF DEFENSE classified information as defined in Section 552b(c)(1), Title 5 of the U.S. Office of the Secretary DEPARTMENT OF EDUCATION Code, and therefore will be closed to the Defense Intelligence Agency, Science Submission for OMB Review; public. The Board will receive briefings and Technology Advisory Board Comment Request on and discuss several current critical Closed Panel Meeting intelligence issues and advise the AGENCY: Department of Education. Director, DIA, on related scientific and AGENCY: Department of Defense, Defense SUMMARY: The Leader, Information technical matters. Intelligence Agency. Management Group, Office of the Chief ACTION: Dated: 26 October 1998. Notice. Financial and Chief Information Officer Patricia L. Toppings, SUMMARY: On September 30 1998, the invites comments on the submission for Alternate OSD Federal Register Liaison Defense Intelligence Agency published OMB review as required by the Officer, Department of Defense. an announcement (63 FR 52245) for a Paperwork Reduction Act of 1995. [FR Doc. 98–29054 Filed 10–29–98; 8:45 am] closed meeting on 13 October 1998. DATES: Interested persons are invited to BILLING CODE 5000±04±M This meeting was cancelled due to the submit comments on or before lack of an approved DOD Budget. November 30, 1998. ADDRESSES: The Defense Intelligence ADDRESSES: Written comments should Agency, Bolling AFB, Washington, DC be addressed to the Office of 20340–5100. Information and Regulatory Affairs, Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58373

Attention: Danny Werfel, Desk Officer, Dated: October 26, 1998. Frequency: Annually. Department of Education, Office of Kent H. Hannaman, Affected Public: Not-for-profit Management and Budget, 725 17th Leader, Information Management Group, institutions; State, local or Tribal Gov’t; Street, N.W., Room 10235, New Office of the Chief Financial and Chief SEAs or LEAs. Executive Office Building, Washington, Information Officer. Reporting and Recordkeeping Burden: D.C. 20503 or should be electronically Responses: 200; Burden Hours: 24,000. Office of Bilingual Education and Abstract: The Department needs and mailed to the internet address Werfel Minority Languages Affairs uses this information to make grants. [email protected]. Requests for copies of the Type of Review: New. The respondents are local educational proposed information collection Title: Application for New Grants agencies and are required to provide requests should be addressed to Patrick Under Bilingual Education: Program this information in applying for grants. J. Sherrill, Department of Education, 600 Development and Implementation This information collection is being Independence Avenue, S.W., Room Grants Program. submitted under the Streamlined 5624, Regional Office Building 3, Frequency: Annually. Clearance Process for Discretionary Washington, D.C. 20202–4651, or Affected Public: Not-for-profit Grant Information Collections (1890– should be electronically mailed to the institutions; State, local or Tribal Gov’t; 0001). Therefore, this 30-day public internet address Pat [email protected], or SEAs or LEAs. comment period notice will be the only should be faxed to 202–708–9346. Reporting and Recordkeeping Burden: public comment notice published for Responses; 300 Burden Hours: 24,000 this information collection. FOR FURTHER INFORMATION CONTACT: Abstract: The Department needs and Patrick J. Sherrill (202) 708–8196. uses this information to make grants. Office of Bilingual Education and Individuals who use a The respondents are local educational Minority Languages Affairs telecommunications device for the deaf agencies, institutions of higher Type of Review: New. (TDD) may call the Federal Information education, community-based Title: Application for New Grants Relay Service (FIRS) at 1–800–877–8339 organizations, and state educational Under Foreign Language Assistance between 8 a.m. and 8 p.m., Eastern time, agencies. The respondents are required Program for Local Education Agencies. Monday through Friday. to submit this application to receive a Frequency: Annually. grant. Affected Public: State, local or Tribal SUPPLEMENTARY INFORMATION: Section This information collection is being Gov’t; SEAs or LEAs. 3506 of the Paperwork Reduction Act of submitted under the Streamlined Reporting and Recordkeeping Burden: 1995 (44 U.S.C. Chapter 35) requires Clearance Process for Discretionary Responses: 150; Burden Hours: 12,000. that the Office of Management and Grant Information Collections (1890– Abstract: The Department needs and Budget (OMB) provide interested 0001). Therefore, this 30-day public uses this information to make grants. Federal agencies and the public an early comment period notice will be the only The respondents are local education opportunity to comment on information public comment notice published for agencies. The respondents are required collection requests. OMB may amend or this information collection. to provide this information in applying for grants. waive the requirement for public Office of Bilingual Education and consultation to the extent that public This information collection is being Minority Languages Affairs submitted under the Streamlined participation in the approval process Clearance Process for Discretionary would defeat the purpose of the Type of Review: New. Title: Application for Grants Under Grant Information Collections (1890– information collection, violate State or Bilingual Education: State Grant 0001). Therefore, this 30-day public Federal law, or substantially interfere Program. comment period notice will be the only with any agency’s ability to perform its Frequency: Annually. public comment notice published for statutory obligations. The Leader, Affected Public: State, local or Tribal this information collection. Information Management Group, Office Gov’t; SEAs or LEAs. of the Chief Financial and Chief Reporting and Recordkeeping Burden: Office of Bilingual Education and Information Officer, publishes that Responses: 59; Burden Hours: 1,770. Minority Languages Affairs notice containing proposed information Abstract: This information will be Type of Review: New. collection requests prior to submission used to make funding decisions of the Title: Application for Grants Under of these requests to OMB. Each State Grant Program. The respondents Foreign Language Assistance Program proposed information collection, are SEAs charged with the authority to for State Education Agencies. grouped by office, contains the provide technical assistance to LEAs Frequency: Annually. Affected Public: State, local or Tribal following: (1) Type of review requested, within the state and to collect data on Gov’t; SEAs or LEAs. e.g. new, revision, extension, existing or LEP population. This information collection is being Reporting and Recordkeeping Burden: reinstatement; (2) Title; (3) Summary of submitted under the Streamlined Responses: 50; Burden Hours: 4,000. the collection; (4) Description of the Clearance Process for Discretionary Abstract: The Department needs and need for, and proposed use of, the Grant Information Collections (1890– uses this information to make grants. information; (5) Respondents and 0001). Therefore, this 30-day public The respondents are State education frequency of collection; and (6) comment period notice will be the only agencies and are required to provide Reporting and/or Recordkeeping public comment notice published for this information in applying for grants. burden. OMB invites public comment at this information collection. This information collection is being the address specified above. Copies of submitted under the Streamlined the requests are available from Patrick J. Office of Bilingual Education and Clearance Process for Discretionary Sherrill at the address specified above. Minority Languages Affairs Grant Information Collections (1890– Type of Review: New. 0001). Therefore, this 30-day public Title: Application for Grants Under comment period notice will be the only Bilingual Education: Systemwide public comment notice published for Improvement Grants Program. this information collection. 58374 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Office of Bilingual Education and Abstract: The Department needs and SUPPLEMENTARY INFORMATION: The Minority Languages Affairs uses this information to make grants. National Assessment Governing Board Type of Review: New. The respondents are local educational is established under section 412 of the Title: Application for Grants Under agencies, State educational agencies and National Education Statistics Act of Bilingual Education Program institutions of higher education and are 1994 (Title IV of the Improving Enhancement Grants. required to provide this information in America’s Schools Act of 1994) (Pub. L. Frequency: Annually. applying for grants. 103-382). Affected Public: Not-for-profit This information collection is being The Board is established to formulate institutions; State, local or Tribal Gov’t; submitted under the Streamlined policy guidelines for the National SEAs or LEAs. Clearance Process for Discretionary Assessment of Educational Progress. Reporting and Recordkeeping Burden: Grant Information Collections (1890– The Board is responsible for selecting Responses: 300; Burden Hours: 24,000. 0001). Therefore, this 30-day public subject areas to be assessed, developing Abstract: The purpose of this program comment period notice will be the only assessment objectives, identifying is to provide grants to carry out highly public comment notice published for appropriate achievement goals for each focused, innovative, locally designed this information collection. grade and subject tested, and projects to expand or enhance existing [FR Doc. 98–29087 Filed 10–29–98; 8:45 am] establishing standards and procedures bilingual education or special BILLING CODE 4000±01±P for interstate and national comparisons. alternative instructional programs for Under P.L. 105–78, the National limited English proficient (LEP) Assessment Governing Board is also students. DEPARTMENT OF EDUCATION granted exclusive authority over This information collection is being developing the Voluntary National Tests submitted under the Streamlined National Assessment Governing pursuant to contract number Clearance Process for Discretionary Board; Meeting RJ97153001. Grant Information Collections (1890– AGENCY: National Assessment On Monday, November 16, the 0001). Therefore, this 30-day public Governing Board; Education. Executive Committee will hold a comment period notice will be the only ACTION: Notice of Teleconference and partially closed teleconference meeting. public comment notice published for Partially Closed Meeting. From 11:00 a.m. to 12:00 p.m., the this information collection. Committe will meet in closed session to Office of Bilingual Education and SUMMARY: This notice set forth the discuss the development of cost Minority Languages Affairs schedule and a proposed agenda of a estimates for current contract initiatives forthcoming meeting of the National for NAEP and future contract initiatives. Type of Review: New. Assessment Governing Board. This This portion of the meeting must be Title: Application for Grants Under notice also describes the functions of conducted in closed session because Bilingual Education: Teachers and the Board. Notice of this meeting is public disclosure of this information Personnel Grants Program. required under Section 10(a)(2) of the would likely have an adverse financial Frequency: Annually. Federal Advisory Committee Act. This effect on the NAEP program. The Affected Public: Not-for-profit document is intended to notify the discussion of this information would be institutions; State, local or Tribal Gov’t; general public of their opportunity to likely to significantly frustrate SEAs or LEAs. attend. implementation of a proposed agency Reporting and Recordkeeping Burden: DATES: November 16, 1998; November action if conducted in an open session. Responses: 200; Burden Hours: 24,000. 19–21, 1998. Such matters are protected by Abstract: The Department needs and exemption 9(B) of section 552b(c) of uses this information to make grants. TIME: November 16—Executive Title 5 U.S.C. Between 12:00 and 1:00 The respondents are local educational Committee 11:00 a.m.–12:00 p.m. p.m. the meeting will be open to the agencies, State educational agencies and (closed), 12:00–1:00 p.m. (open); public when the Committee will discuss institutions of higher education and are November 19, Design and Methodology the NAEP assessment schedule for the required to provide this information in Committee 9:00–11:00 a.m., (open); # year 2000 and hear updates on the applying for grants. Subject Area Committee 2, 9:00–11:00 This information collection is being a.m., (open). November 20—Full Board, Voluntary National Tests program and 8:30–10:30 a.m., (open); Subject Area NAEP reauthorization. submitted under the Streamlined # Clearance Process for Discretionary Committee 1, 10:30 a.m.–12:30 p.m., On Thursday, November 19, there Grant Information Collections (1890– (open); Reporting and Dissemination will be meetings of two committees of 0001). Therefore, this 30-day public Committee, 10:30 a.m.–12:30 p.m., the Governing board. The Design and comment period notice will be the only (open); Achievement Levels Committee, methodology Committee will meet in public comment notice published for 10:30–11:15 a.m., (open), 11:15–11:45 open sessions from 9:00–11:00 a.m. The this information collection. a.m. (closed), 11:45 a.m.–12:30 p.m., Committee will be considering (open). Full Board, 12:30–4:00 p.m., information related to accommodations Office of Bilingual Education and (open). November 21—Full Board 9:00 for testing students with language and/ Minority Languages Affairs a.m. until adjournment, approximately or physical disabilities. Also, the Type of Review: New. 12:00 Noon, (open). Committee will receive a report on Title: Application for Grants Under LOCATION: Hotel Washington, technical information related to the Bilingual Education: Career Ladder Pennsylvania Avenue, NW, Washington, 1999 NAEP field test. Subject Area Program. DC. Committee #2 will meet in open session Frequency: Annually. FOR FURTHER INFORMATION CONTACT: from 9:00–11:00 a.m. The Committee Affected Public: Not-for-profit Mary Ann Wilmer, Operations Officer, will discuss development issues for the institutions; State, local or Tribal Gov’t; National Assessment Governing Board, proposed year 2000 NAEP science and SEAs or LEAs. Suite 825, 800 North Capital Street, NW, math assessments. In addition, the Reporting and Recordkeeping Burden: Washington, DC, 20002–4233, Committee will be briefed on voluntary Responses: 200; Burden Hours: 24,000. Telephone: (202) 357–6938. National Tests matters such as Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58375 calculator use, item development, and Sciences: Evaluation of the Voluntary ADDRESSES: All meetings will be held at: test development timelines. National Tests; High Stakes Testing for Adam’s Mark Hotel, 1200 Hampton On Friday, November 20, the Full Tracking, Promotion, and Graduation, Street, Columbia, South Carolina. board will convene in open session at and the National Academy of Sciences, FOR FURTHER INFORMATION CONTACT: 8:30 a.m. The agenda for this session of NAEP Evaluation. Also, there will be a Gerri Flemming, Public Accountability the full board meeting includes report on AllStates 2000. The Board will Specialist, Environmental Restoration approval of the agenda, the swearing-in recess at 4:00 p.m. and Solid Waste Division, Department of new Board members and remarks by On Saturday, November 21, the full of Energy Savannah River Operations the Secretary of Education, and a report Board will meet in open session from Office, P.O. Box A, Aiken, S.C. 29802 from the Executive Director. This 9:00 a.m. until adjournment, (803) 725–5374. session will conclude with an update on approximately 12:00 noon. During this SUPPLEMENTARY INFORMATION: NAEP and a presentation on NAEP session the Board will hear updates on Purpose of the Board: The purpose of Cooperative Agreements with the the Voluntary National Tests project and the Board is to make recommendations Educational Testing Service and Westat. the Allstate 2000 Project. The final Between 10:30 a.m. and 12:30 p.m., to DOE and its regulators in the areas of agenda item is the presentation of environmental restoration, waste there will be open meetings of the reports from the various Board # management and related activities. Subject Area Committee 1, and the committee meetings. Reporting and Dissemination A summary of the activities of the Tentative Agenda Committee, and a partially closed closed and partially closed sessions and Sunday, November 15, 1998 meeting of the Achievement Levels other related matters which are Committee. 12:00 p.m. Review and select # informative to the public and consistent Subject Areas Committee 1 will with the policy of the section 5 U.S.C. candidates for 1999 membership discuss development issues for the 552b(c), will be available to the public Monday, November 16, 1998 proposed year 2000 NAEP grad 4 within 14 days after the meeting. reading assessment. In addition, the Records are kept of all Board 8:30 a.m. Continued membership Committee will be briefed on voluntary proceedings and are available for public replacement review National Tests matters such as 6:30 p.m. Public comment session (5- inspection at the U.S. Department of readability findings, item development, minute rule) Education, National Assessment and test development timelines. The 7:00 p.m. Issues-based subcommittee Governing Board, Suite #825, 800 North Reporting and Dissemination Committee meetings Capitol Street, NW., Washington, DC, will consider the release plan for the 9:00 p.m. Adjourn from 8:30 a.m. to 5:00 p.m. 1998 NAEP mathematics report and the Tuesday, November 17, 1998 schedule for the release of future NAEP Roy Truby, reports. Other agenda items include an Executive Director, National Assessment 8:30 a.m. Approval of minutes, agency update on the consideration of reporting Governing Board. updates (∼ 15 minutes) data for groups of private schools; [FR Doc. 98–29086 Filed 10–29–98; 8:45 am] Public comment session (5-minute review of NAGB policy on reporting and BILLING CODE 4000±01±M rule) (∼ 10 minutes) dissemination; and Voluntary National Nuclear materials management Tests reporting and test utilization subcommittee (∼ 30 minutes) guidelines. DEPARTMENT OF ENERGY Risk management & future use The Achievement Levels Committee subcommittee report (∼ 30 minutes) will meet in closed session from 11:15– Environmental Management Site- Environmental remediation and waste 11:45 a.m., to discuss results of the Specific Advisory Board, Savannah management subcommittee report civics and writing pilot testing. This River Site (∼ 2 hours) portion of the meeting must be closed 12:00 p.m. Lunch AGENCY: Department of Energy. because references will be made to MOX fuel presentation (∼ 30 minutes) specific items from the assessment and ACTION: Notice of open meeting. Dose reconstruction project update (∼ premature disclosure of the information 30 minutes)—tentative SUMMARY: Pursuant to the provisions of Facilitator update (∼ 30 minutes) presented for review would be likely to the Federal Advisory Committee Act significantly frustrate implementation of TNX tour/early warning monitoring (Public Law 92–463, 86 Stat. 770) notice ∼ a proposed agency action. Such matters system ( 15 minutes) is hereby given of the following ∼ are protected by exemption (9)(B) of Outreach subcommittee report ( 15 Advisory Committee meeting: minutes) Section 552b(c) of Title 5 U.S.C. Environmental Management Site- During the open portion of the SEMA/decisionmaker forum Specific Advisory Board (EM SSAB), Achievement Levels Committee participation (∼ 10 minutes) Savannah River Site. meeting, from 10:30 to 11:15 a.m., there Public comment session (5-minute will be discussions of the National DATES AND TIMES: Sunday, November 15, rule) (∼ 10 minutes) Academy of Sciences Evaluation of 1998: 4:00 p.m. Adjourn Achievement Levels, and a discussion 12:00 p.m.—Membership Replacement If necessary, time will be allotted after on the results of the civics and writing Review public comments for items added to the pilot testing. From 11:45 a.m. until Monday, November 16, 1998: agenda, and administrative details. A 12:30 p.m., the Committee will consider 8:30 a.m.:—Membership Replacement final agenda will be available at the issues related to linking NAEP and the Review Continued meeting Monday, November 16, 1998. Voluntary National Tests. 6:30 p.m.–7:00 p.m.: Public Comment Public Participation: The meeting is The full board will reconvene at 12:30 Session open to the public. Written statements p.m. The agenda items during this 7:00 p.m.–9:00 p.m.: Individual may be filed with the Committee either period include reflections on the 10 Subcommittee Meetings before or after the meeting. Individuals Year Anniversary Conference, and Tuesday, November 17, 1998: 8:30 a.m.– who wish to make oral statements reports from the national Academy of 4:00 p.m. pertaining to agenda items should 58376 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices contact Gerri Flemming’s office at the capability to use coal or another DEPARTMENT OF ENERGY address or telephone number listed alternate fuel as a primary energy above. Requests must be received 5 days source. In order to meet the requirement Senior Executive Service; Performance prior to the meeting and reasonable of coal capability, the owner or operator Review Board provision will be made to include the of such facilities proposing to use AGENCY: Department of Energy. presentation in the agenda. The natural gas or petroleum as its primary Designated Federal Officer is energy source shall certify, pursuant to ACTION: SES Performance Review Board empowered to conduct the meeting in a FUA section 201(d), to the Secretary of Standing Register. fashion that will facilitate the orderly Energy prior to construction, or prior to SUMMARY: This notice provides the conduct of business. Each individual operation as a base load powerplant, Performance Review Board Standing wishing to make public comment will that such powerplant has the capability Register for the Department of Energy. be provided a maximum of 5 minutes to to use coal or another alternate fuel. This listing supersedes all previously present their comments. Such certification establishes published lists of PRB members. Minutes: The minutes of this meeting compliance with section 201(a) as of the will be available for public review and date filed with the Department of EFFECTIVE DATE: These appointments are copying at the Freedom of Information Energy. The Secretary is required to effective as of September 30, 1998. Public Reading Room, 1E–190, Forrestal publish a notice in the Federal Register ACHARYA, SARBESWAR NMN Building, 1000 Independence Avenue, that a certification has been filed. The ACKERLY, LAWRENCE R SW, Washington, DC 20585 between following owner/operator of the ADAMSON, DANIEL M. 9:00 a.m. and 4 p.m., Monday–Friday proposed new baseload powerplant has ALCOCK, ROBERT M. except Federal holidays. Minutes will ALVAREZ, ROBERT NMN filed a self-certification in acccordance ANDERSEN, ARTHUR T also be available by writing to Gerri with section 201(d). ANDERSON, PHYLLIS L. Flemming, Department of Energy Owner: AES Ironwood, Inc. ANDERSON, BROOKE D Savannah River Operations Office, P.O. Operator: AES Ironwood, Inc. ARMSTRONG, M BRENT Box A, Aiken, S.C. 29802, or by calling ARTHUR III, WILLIAM JOHN her at (803) 725–5374. Location: South Lebanon Township, BACA, MARK C Lebanon County, PA BACA, FRANK A Issued at Washington, DC on October 22, BAJURA, RITA A 1998. Plant Configuration: Combined-cycle Capacity: 700 megawatts, net BAKER, KENNETH E Rachel M. Samuel, BAMBERGER, CRAIG S Deputy Advisory Committee Management Fuel: Natural gas or fuel oil BARBER, ROBERT W Officer. Purchasing Entities: 90% to GPU BARKER JR., WILLIAM L [FR Doc. 98–29143 Filed 10–29–98; 8:45 am] Energy, 10% to Pennsylvania-Jersey- BARRETT, LAKE H. BILLING CODE 6450±01±P Maryland power pool. BAUER, LINDA K In-Service Date: First quarter of the year BECKETT, THOMAS H 2001 BEECY, DAVID DEPARTMENT OF ENERGY BENEDICT, GEORGE W Issued in Washington, D.C., October 23, BERGHOLZ JR., WARREN E 1998. Office of Fossil Energy: AES Ironwood, BERKOVITZ, DAN M Anthony J. Como, BERNARD, PETER A Inc.; Notice of Filing of Coal Capability BERUBE, RAYMOND P Powerplant and Industrial Fuel Use Act Manager, Electric Power Regulation, Office of Coal & Power Im/Ex, Office of Coal & BIELAN, DOUGLAS J [Docket No. FE C&E 98±08ÐCertification Power Systems, Office of Fossil Energy. BLACK, RICHARD L BLACKWOOD, EDWARD B. NoticeÐ163] [FR Doc. 98–29142 Filed 10–29–98; 8:45 am] BLADOW, JOEL K. AGENCY: Office of Fossil Energy, BILLING CODE 6450±01±P BORCHARDT, CHARLES A Department of Energy. BORGSTROM, CAROL M ACTION: Notice of filing. BORGSTROM, HOWARD G DEPARTMENT OF ENERGY BORNHOFT JR., BUDD B SUMMARY: On October 5, 1998, AES BOSTOCK, JUDITH L Ironwood, Inc. submitted a coal Senior Executive Service; Performance BOWMAN, GERALD C. capability self-certification pursuant to Review Board BOYD, GERALD G BRADLEY JR., THERON M section 201 of the Powerplant and AGENCY: U.S. Department of Energy. BRECHBILL, SUSAN R Industrial Fuel Use Act of 1978, as ACTION: Designation of PRB Chair. BRENDLINGER, TERRY L. amended. BREZNAY, GEORGE B ADDRESSES: BRICE, JAMES F Copies of self-certification SUMMARY: This notice designates the filings are available for public BRODMAN, JOHN R Performance Review Board Chair for the BROIDO, MICHELLE S inspection, upon request, in the Office Department of Energy. of Coal & Power Im/Ex, Fossil Energy, BROWN JR., CHARLES H Room 4G–039, FE–27, Forrestal EFFECTIVE DATE: The appointment is BROWN, RICHARD W. effective as of September 30, 1998. BROWN, FREDERICK R Building, 1000 Independence Avenue, BRUSH, PETER N. S.W., Washington, D.C. 20585. Performance Review Board Chair. BURROWS, CHARLES W FOR FURTHER INFORMATION CONTACT: David L. Hamer, Department of Energy. CANTER, HOWARD R. Ellen Russell at (202) 586–9624. Issued in Washington, DC, October 19, CARABETTA, RALPH A CARDINALI, HENRY A SUPPLEMENTARY INFORMATION: Title II of 1998. Richard T. Farrell, CARLSON, LYNDA T the Powerplant and Industrial Fuel Use CARLSON, KATHLEEN ANN Director of Human Resources and Act of 1978 (FUA), as amended (42 CARLSON, JOHN T. Administration. U.S.C. 8301 et seq.), provides that no CARUSO, GUY F. new baseload electric powerplant may [FR Doc. 98–29144 Filed 10–29–98; 8:45 am] CASTELLI, BRIAN T. be constructed or operated without the BILLING CODE 6450±01±P CHRISTENSEN, WILLIAM J Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58377

CHRISTOPHER, ROBERT K. GOTTEMOELLER, ROSE E. LEWIS, ROGER A. CHUN, SUN W GOTTLIEB, PAUL A LEWIS JR., HOWARD E CLAFLIN, ALAN B GREENWOOD, JOHNNIE D LIEN, STEPHEN C.T. CLARK, JOHN R GROSS, THOMAS J LIGHTNER, RALPH G CLAUSEN, MAX JON GRUENSPECHT, HOWARD K LIVINGSTON-BEHAN, ELLEN COMBS, MARSHALL O GUIDICE, CARL W LOWE, DAVID C COOK, JOHN S GUNN JR., MARVIN E LOWE, OWEN W. CRANDALL, DAVID H GURULE, DAVID A LYLE, JERRY L. CRAWFORD, TIMOTHY S HABERMAN, NORTON NMN MAHALEY, JOSEPH S. CROSS, CLAUDIA A. HACSKAYLO, MICHAEL S. MALOSH, GEORGE J CROWE, RICHARD C. HALL, JAMES C MANGENO, JAMES J CUMESTY, EDWARD G HAMER JR, DAVID L MANN, THOMAS O CURTIS, JAMES H HANSEN, CHARLES A MARCHESE, ANDREW R. CYGELMAN, ANDRE I HARDIN, MICHAEL G MARIANELLI, ROBERT S CZAJKOWSKI, ANTHONY F. HARDWICK JR., RAYMOND J. MARLAY, ROBERT C DALTON, HENRY F. HARRIS, SKILA S MAXEY, KENNETH G. DARUGH, DAVID G HARTMAN, JAMES K MAZUR, MARK J. DAVIES, NELIA A HASPEL, ABRAHAM E. MC CALLUM, EDWARD J DAVIS, JAMES T HAWKINS, FRANCIS C MCCLARY, MICHAEL VANCE DECKER, JAMES F HEATH, CHARLES C MCCOY III, FRANK R DEGRASSE JR., ROBERT W. HEENAN, THOMAS F MCDONALD-KAUFMAN, SYLVIA DEHANAS, THOMAS W HEINKEL, JOAN E MCGUIRE, PADDY J DEHMER, PATRICIA M HELMS, K DEAN MICHELSEN, STEPHEN J DEIHL, MICHAEL A. HENDERSON, LYNWOOD H MILLER, CLARENCE L DEMPSEY, ROBERT D HENSLEY JR., WILLIE F MILLER, DEBORAH C DENNISON, WILLIAM J HEUSSER, ROGER K MILLHONE, JOHN P DER, VICTOR K HICKOK, STEVEN G MILNER, RONALD A DEVER, GERTRUDE L. HIRAHARA, JAMES S MONTOYA, ELIZABETH A DIAZ JR., ROMULO L HOFFMAN, ALLAN R. MOORER, RICHARD F DIFIGLIO, CARMEN NMN HOLBROOK, PHILLIP L MORGAN, JEAN M DIRKS, TIMOTHY M HOLGATE, LAURA MORRIS, MARCIA L DIVONE, LOUIS V HOLMES, NANCY H MOSQUERA, JAMES P DIXON, ROBERT K HOLSTEIN JR., ELWOOD NMN MOURNIGHAN, STEPHEN D DOHERTY, DONALD P HOOPER, MICHAEL K MRAVCA, ANDREW E DOMAGALA, MARTIN J HOPF, RICHARD H MULHOLLAND, JOSEPH W DOOLEY III, GEORGE J. HOPKINS, T. J. MURPHY, ALICE Q DURNAN, DENIS D HORTON, DONALD G. MURPHY, ROBERT E DYER, J. RUSSELL HOWES, WALTER S. NEALY, CARSON L. EDMONDSON, JOHN J HUGHES, JEFFREY L. NEILSEN, FINN K EGGER, MARY H HUIZENGA, DAVID G. NELSON, DAVID B ENGEL, WALTER P HUTZLER, MARY JEAN NELSON, RODNEY R ESVELT, TERENCE G INADOMI, LEEANN R. NETTLES JR., JOHN J. EVANS, THOMAS W INGE JR., EDWIN F NICHOLS, CLAYTON R FALLE, J. GARY INLOW, RUSH O NOLAN, ELIZABETH A. FELDT, ELISABETH G. IZELL, KATHY D NORMAN, PAUL E FIDLER, SHELLEY N JAFFE, HAROLD NULTON, JOHN D FIORE, JOSEPH N JHIRAD, DAVID J. O’FALLON, JOHN R FIORE, JAMES J JOHANSEN, JUDITH A. OLIVER, LAWRENCE R FITZGERALD JR., JOSEPH E JOHNSON, OWEN B OLSON, GARY C FITZGERALD, CHERYL P. JOHNSON, GERALD W OWENDOFF, JAMES M FOLKER, ROBERT D JOHNSON, FREDERICK M PARNES, SANFORD J. FORD, JAMES L JOHNSON, MILTON D PATIL, PANDIT G FORRISTER, DERRICK L. JOHNSTON, MARC PATRINOS, ARISTIDES A. FOWLER, JENNIFER JOHNSON JONES, DAVID A PATTON, GLORIA S FRANKLIN, JOHN R JONES, C. RICK PEARSON, ORIN F. FRAZIER, MARVIN E JOSEPH, ANTIONETTE GRAYSO PENRY, JUDITH M FREI, MARK W JUCKETT, DONALD A. PERIN, STEPHEN G FRIEDMAN, GREGORY H JUDGE, GEOFFREY J PETERS, FRANKLIN G FURIGA, RICHARD D KELLY, CYNTHIA C PETTENGILL, HARRY J FYGI, ERIC J KENDERDINE, MELANIE ANNE PETTIS, LAWRENCE A GARSON, HENRY K KENNEDY, JOHN P PIPER II, LLOYD L GEBUS, GEORGE R KIGHT, GENE H PODONSKY, GLENN S GEIDL, JOHN C KILGORE, WEBSTER C POE, ROBERT W GIBSON JR., WILLIAM C KILPATRICK, MICHAEL A. PONCE, VICTORIA L. GIBSON, JUDITH D. KINZER, JACKSON E POWERS, JAMES G. GILBERTSON, MARK A. KLEIN, SUSAN ELAINE POWERS, KENNETH W GINSBERG, MARK B KLEIN, KEITH A PRAY, CHARLES P. GLASS, RICHARD E KNOLLMEYER, PETER M PRICE JR., ROBERT S. GOLAN, PAUL M. KNOTEK, MICHAEL L. PRUDOM, GERALD H. GOLDENBERG, RALPH D KONOPNICKI, THAD T. PRZYBYLEK, CHARLES S GOLDENBERG, NEAL NMN KRIPOWICZ, ROBERT S PUMPHREY, DAVID L GOLDMAN, DAVID TOBIAS LANDERS, JAMES C PYE, DAVID B GOLDSMITH, ROBERT NMN LANE, ANTHONY R RABBEN, ROBERT G GOLDWYN, DAVID L. LASH, TERRY R. REID, JAMES E GOLLOMP, LAWRENCE A LECLAIRE, DAVID B RHOADES, DANIEL R GOODRUM, WILLIAM S LEWIS JR., WILLIAM A. RICHARDSON, STEVEN D. 58378 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

RICHARDSON, HERBERT WAGNER, MARY LOUISE should be filed on or before November ROBERSON, JESSIE M. WAGONER, JOHN D 6, 1998. Protests will be considered by ROBERTS, MICHAEL WAISLEY, SANDRA L. the Commission to determine the ROBERTSON, JOHN S WALDRON, ROBERT E. appropriate action to be taken, but will ROBISON, SALLY A WALGREN, DOUGLAS NMN RODEHEAVER, THOMAS N WALSH, ROBERT J not serve to make protestants parties to RODEKOHR, MARK E WARNICK, WALTER L the proceedings. Any person wishing to RODGERS, STEPHEN J WATKINS, ANTHONY LEE become a party must file a motion to ROHLFING, JOAN B. WEGNER, GERALD C intervene. Copies of this filing are on ROLLOW, THOMAS A WEIGAND, GILBERT G. file with the Commission and are ROONEY, JOHN M WERNER, JAMES D. available for public inspection. ROSEN, SIMON PETER WHITAKER JR., MARK B David P. Boergers, ROSSELLI, ROBERT M WHITE, JAMES K ROUSSO, SAMUEL NMN WHITEMAN, ALBERT E Secretary. RUDINS, GEORGE NMN WIEKER, THOMAS L [FR Doc. 98–29076 Filed 10–29–98; 8:45 am] RUDY, GREGORY P. WILCYNSKI, JOHN M BILLING CODE 6717±01±M RYDER, THOMAS S WILKEN, DANIEL H. SALM, PHILIP E WILLIAMS, O JAY SAN MARTIN, ROBERT L WILLIAMS, MARK H. DEPARTMENT OF ENERGY SATO, WALTER N WILLIS, JOHN W SCHMITT, CARL H WILMOT, EDWIN L Federal Energy Regulatory SCHMITT, EUGENE C WISENBAKER JR., WILLIAM Commission SCHMITT, WILLIAM A WOOLEY, JOHN C SCHNAPP, ROBERT M WRIGHT, STEPHEN J SCHNEIDER, SANDRA L WYMER, NATALIE D [Docket No. EG99±2±000] SCOTT, RANDAL S YUAN-SOO HOO, CAMILLE C. SENA, RICHARD F ZAMORSKI, MICHAEL J Bear Swamp Generating Trust No. 2; SHELOR, DWIGHT E Issued in Washington, DC October 19, Notice of Amendment to Application SHERMAN, HELEN O. 1998. for Commission Determination of SIEBERT JR., ARLIE B Richard T. Farrell, Exempt Wholesale Generator Status SILBERGLEID, STEVEN A SINGER, MARVIN I Director of, Human Resources and October 26, 1998. SITZER, SCOTT B Administration. SKUBEL, STEPHEN C. [FR Doc. 98–29145 Filed 10–29–98; 8:45 am] Take notice that on October 23, 1998, SMEDLEY, ELIZABETH E BILLING CODE 6450±01±P Bear Swamp Generating Trust No. 2 SMITH, ALEXANDRA B (Applicant) tendered for filing with the SMITH, ALAN C Federal Energy Regulatory Commission SOHINKI, STEPHEN M. DEPARTMENT OF ENERGY an Amendment to Application for SPECTOR, LEONARD S. Commission Determination of Exempt SPIGAL, HARVARD P Federal Energy Regulatory Wholesale Generator Status pursuant to STADLER, SILAS D. Commission Part 365 of the Commission’s STAFFIN, ROBIN NMN Regulations. The application was filed STALLMAN, ROBERT M. [Docket No. EG99±1±000] STARK, RICHARD M in the above-referenced docket number STELLO JR., VICTOR NMN Bear Swamp Generating Trust No. 1; on October 1, 1998. STEWART JR., JAKE W. Notice of Amendment to Application Any person desiring to be heard or to STEWART JR., FRANK M for Commission Determination of protest such filing should file a motion STRAKEY JR., JOSEPH P Exempt Wholesale Generator Status to intervene or protest with the Federal SULAK, STANLEY R Energy Regulatory Commission, 888 SUMMERVILLE, SARAH J October 26, 1998. first Street, N.E., Washington, D.C. SUYAT, STANLEY D. Take notice that on October 23, 1998, 20426, in accordance with Rules 211 SWINK, DENISE F Bear Swamp Generating Trust No. 1 and 214 of the Commission’s Rules of SYE, LINDA G. (Applicant) tendered for filing with the Practice and Procedure (18 CFR 385.211 SYLVESTER, WILLIAM G Federal Energy Regulatory Commission TABOAS, ANIBAL L and 385.214). All such motions and an Amendment to Application for TAMURA, THOMAS T protests should be filed on or before Commission Determination of Exempt TAVARES, ANTONIO F. November 6, 1998. Protests will be Wholesale Generator Status pursuant to TEDROW, RICHARD T considered by the Commission to Part 365 of the Commission’s THOMAS, IRAN L determine the appropriate action to be Regulations. The application was filed THOMPSON, JERRY F taken, but will not serve to make THROCKMORTON, RALPH R in the above-referenced docket number protestants parties to the proceedings. TODD, G THOMAS on October 1, 1998. Any person wishing to become a party TOENYES, JERRY W Any person desiring to be heard or to must file a motion to intervene. Copies TORKOS, THOMAS M protest such filing should file a motion of this filing are on file with the TRYON, ARTHUR E. to intervene or protest with the Federal TSENG, JOHN C Commission and are available for public Energy Regulatory Commission, 888 TURI, JAMES A inspection. First Street, NE., Washington, DC 20426, TURNER, JAMES M David P. Boergers, TWINING, BRUCE G in accordance with Rules 211 and 214 Secretary. VAGTS, KENNETH A of the Commission’s Rules of Practice VANZANDT, VICKIE A and Procedure (18 CFR 385.211 and [FR Doc. 98–29077 Filed 10–29–98; 8:45 am] WAGNER, M PATRICE 385.214). All such motions and protests BILLING CODE 6717±01±M Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58379

DEPARTMENT OF ENERGY Regulations. The application was filed ENVIRONMENTAL PROTECTION in the above-referenced docket number AGENCY Federal Energy Regulatory on October 1, 1998. Commission [ER±FRL±5496±5] Any person desiring to be heard or to [Docket No. EG99±6±000] protest such filing should file a motion Environmental Impact Statements; to intervene or protest with the Federal Notice of Availability Bear Swamp I LLC; Notice of Energy Regulatory Commission, 888 Amendment to Application for RESPONSIBLE AGENCY: Office of Federal First Street, NE., Washington, DC 20426, Commission Determination of Exempt Activities, General Information (202) Wholesale Generator Status in accordance with Rules 211 and 214 564–7167 OR (202) 564–7153. of the Commission’s Rules of Practice Weekly receipt of Environmental October 26, 1998. and Procedure (18 CFR 385.211 and Impact Statements Filed October 19, Take notice that on October 23, 1998, 385.214). All such motions and protests 1998 Through October 23, 1998 Bear Swamp I LLC (Applicant) tendered should be filed on or before November Pursuant to 40 CFR 1506.9. for filing with the Federal Energy 6, 1998. Protests will be considered by EIS No. 980427, Final EIS, COE, FL, Regulatory Commission an Amendment the Commission to determine the to Application for Commission Sunny Isles (North Miami) Proposed appropriate action to be taken, but will Modification to Segment of the Dade Determination of Exempt Wholesale not serve to make protestants parties to Generator Status pursuant to Part 365 of County Beach Erosion Control and the proceedings. Any person wishing to Hurricane Protection Project, Dade the Commission’s Regulations. The become a party must file a motion to application was filed in the above- County, FL, Due: November 30, 1998, intervene. Copies of this filing are on referenced docket number on October 1, Contact: Rudy Nyc (404) 562–5223. file with the Commission and are 1998. EIS No. 980428, Final EIS, COE, CA, Los Any person desiring to be heard or to available for public inspection. Angeles County Drainage Area protest such filing should file a motion David P. Boergers, (LACDA) Water Conservation and to intervene or protest with the Federal Secretary. Supply and Santa Fe—Whittier Energy Regulatory Commission, 888 [FR Doc. 98–29078 Filed 10–29–98; 8:45 am] Narrows Dams Feasibility Study, Implementation, Los Angeles County, First Street, N.E., Washington, D.C. BILLING CODE 6717±01±M 20426, in accordance with Rules 211 CA, Due: November 30, 1998, Contact: and 214 of the Commission’s Rules of Debbie Lamb (213) 452–3798. Practice and Procedure (18 CFR 385.211 DEPARTMENT OF ENERGY EIS No. 980429, Final EIS, COE, NJ, and 385.214). All such motions and Lower Cape May Meadows—Cape protests should be filed on or before Federal Energy Regulatory May Point Feasibility Study, November 6, 1998. Protests will be Commission Ecosystem Restoration, New Jersey considered by the Commission to Shore Protection Study, Cape May County, NJ, Due: November 30, 1998, determine the appropriate action to be [Docket No. RP98±404±000] taken, but will not serve to make Contact: Carmen G. Zappile (215) 656–6576. protestants parties to the proceedings. Mississippi River Transmission EIS No. 980430, Draft EIS, DOE, CA, Any person wishing to become a party Corporation; Notice Establishing Sutter Power Plant Project, Operation must file a motion to intervene. Copies Technical Conference of this filing are on file with the and Maintains of a High-Voltage Commission and are available for public October 26, 1998. Electric Transmission, 500 megawatt inspection. (MW) Gas Fueled, Sutter County, CA, Take notice that the Commission staff Due: December 14, 1998, Contact: David P. Boergers, will convene a technical conference as Secretary. Loreen McMahon (916) 353–4460. provided by the Commission order in EIS No. 980431, Draft EIS, DOA, VA, [FR Doc. 98–29079 Filed 10–29–98; 8:45 am] this proceeding issued October 14, Buena Vista Watershed Plan, Multiple BILLING CODE 6717±01±M 1998.1 The technical conference will be Works Improvements, Watershed held on Wednesday, November 4, 1998, Protection and Flood Prevention, City DEPARTMENT OF ENERGY at 10:00 a.m. in a room to be designated of Buena Vista, Rockbridge County, at the offices of the Federal Energy VA, Due: December 14, 1998, Contact: Federal Energy Regulatory Regulatory Commission, 888 First M. Denise Doetzer (804) 287–1690. Commission Street, N.E., Washington, D.C. 20426. EIS No. 980432, Legislative Final EIS, COE, WA, Howard A. Hanson Dam [Docket No. EG99±5±000] Attendance will be limited to parties and staff. For additional information, (HHD Additional Water Storage (AWS) Phase I Project, Construction Bear Swamp II LLC; Notice of please contact Jerie O’Connor at (202) and Operation, Green River Basin Amendment of Application for 208–0459. Pierce and King Counties, WA, Due: Commission Determination of Exempt David P. Boergers, Wholesale Generator Status November 30, 1998, Contact: Kris Loll Secretary. (206) 764–4470. October 26, 1998. [FR Doc. 98–29080 Filed 10–29–98; 8:45 am] EIS No. 980433, Draft Supplement, NPS, Take notice that on October 23, 1998, BILLING CODE 6717±01±M CA, Backcounty and Wilderness Bear Swamp II LLC (Applicant) Management Plan, Additional tendered for filing with the Federal Information, General Management Energy Regulatory Commission an Plan Amendment, Joshua Tree Amendment to Application for National Park, Riverside and San Commission Determination of Exempt Bernardino Counties, CA, Due: Wholesale Generator Status pursuant to 1 Mississippi River Transmission Corporation, 85 December 31, 1998, Contact: Alan Part 365 of the Commission’s FERC ¶ 61,049 (1998). Schmierer (415) 427–1441. 58380 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

EIS No. 980434, Draft EIS, BLM, AZ, Ray ENVIRONMENTAL PROTECTION Washington, DC Metro Area at 703– Land Exchange/Plan Amendment, AGENCY 412–9810; Outside Washington, DC Metro at 1–800–424–9346; TDD for the Implementation, Exchange of Federal [FRL±6182±5] Lands for Public Lands, Pinal, Gila Hearing Impaired at 1–800–553–7672. and Mohave Counties, AZ, Due: Comprehensive Environmental Copies of the Booklet are available via January 28, 1999, Contact: Shelia Response, Compensation and Liability the Internet: http://www.epa.gov/ McFarlin (602) 417–9568. Act (CERCLA) or Superfund, Section brownfields/ FOR FURTHER INFORMATION CONTACT: EIS No. 980435, Preliminary Draft EIS, 104ÐAnnouncement of Proposal The Superfund Hotline, 800–424–9346. USA, GA, U.S. Army/Fort Benning Deadline for the Competition for the and The Consolidated Government of 1999 National Brownfields Assessment SUPPLEMENTARY INFORMATION: As a part Columbus Proposed Land Exchange, Demonstration Pilots of the Environmental Protection Muscogee and Chattahoochee Agency’s (EPA) Brownfields Economic AGENCY: Environmental Protection Redevelopment Initiative, the Counties, GA, Due: December 14, Agency (EPA). Brownfields Assessment Demonstration 1998, Contact: John Brent (706) 545– ACTION: Notice of proposal deadlines, Pilots are designed to empower States, 4766. revised guidelines. communities, and other stakeholders in EIS No. 980436, Final EIS, DOA, OK, economic redevelopment to work SUMMARY: Double Creek Watershed Plan, The United States together in a timely manner to prevent, Implementation, Watershed Environmental Protection Agency (EPA) assess, safely cleanup and promote the will begin to accept proposals for the Protection and Flood Prevention, sustainable reuse of brownfields. EPA National Brownfields Assessment Pilots National Economic Development has awarded cooperative agreements to on October 30, 1998. The brownfields (NED), Town of Ramona, Washington States, cities, towns, counties and Tribes assessment pilots (each funded up to and Osage Counties, OK, Due: for demonstration pilots that test $200,000 over two years) test cleanup brownfields assessment models, direct November 30, 1998, Contact: Ronnie and redevelopment planning models, L. Clark (405) 742–1223. special efforts toward removing direct special efforts toward removing regulatory barriers without sacrificing EIS No. 980437, Draft Supplement, EPA, regulatory barriers without sacrificing protectiveness, and facilitate CA, International Wastewater protectiveness, and facilitate coordinated public and private efforts at Treatment Plant and South Bay Ocean coordinated environmental cleanup and the Federal, State and local levels. To Outfall, Updated Information, Interim redevelopment efforts at the federal, date, the Agency has funded 226 Operation, Tijuana River, San Diego, state, and local levels. EPA expects to Brownfields Assessment Pilots. Of those CA, Contact: Elizabeth Borowiec (415) select up to 100 additional National pilots, 169 are National Pilots selected 744–1165. U.S. EPA has applied to brownfields assessment pilots by May under criteria developed by EPA the Council on Environmental Quality 1999. Applications will be accepted on Headquarters and 57 are Regional Pilots (CEQ) under Section 1502(c)(4) of the a ‘‘rolling submissions’’ schedule. The selected by EPA Regions under criteria CEQ Regulations for the Approval of deadlines for new applications for the developed by their offices. Alternative Procedures. EPA has 1999 assessment pilots are December 11, EPA’s goal is to select a broad array proposed that the above EIS have a 1998, and March 22, 1999. Applications of assessment pilots that will serve as postmarked after December 11, 1998, 30-day Review Period; after the models for other communities across the will be considered in the second round closing of this Time Period a Record nation. EPA seeks to identify of competition. Previously unsuccessful of Decision may be issued. A Notice applications that demonstrate the applicants are advised that they must of the CEQ’s decision will be integration or linking of brownfields revise and resubmit their applications. assessment pilots with other federal, published in the next Federal The National brownfields assessment Register, with the process to be state, tribal, and local sustainable pilots are administered on a competitive development, community revitalization, followed and the date comments are basis. To ensure a fair selection process, Due to EPA. and pollution prevention programs. evaluation panels consisting of EPA Special consideration will be given to Amended Notices Regional and Headquarters staff and Empowerment Zones and Enterprise other federal agency representatives will Communities (EZ/ECs), communities EIS No. 980206, Draft EIS, BIA, CA, assess how well the proposals meet the with populations of under 100,000, and Programmatic—Cabazon Resource selection criteria outlined in the newly federally recognized Indian tribes. Recovery Park Section 6 General Plan, revised application booklet The These pilots focus on EPA’s primary Implementation, Approval of Master Brownfields Economic Redevelopment mission—protecting human health and Lease and NPDES Permit, Mecca, CA Initiative: Proposal Guidelines for the environment. However, it is an , Due: July 06, 1998, Contact: Donald Brownfields Assessment Demonstration essential piece of the nation’s overall R. Sutherland (202) 208–4791. Pilots (October 1998). community revitalization efforts. EPA Published FR 06–05–98. DATES: This action is effective as of works closely with other federal October 30, 1998, and expires on March Officially Withdrawn by the Preparing agencies through the Interagency 22, 1999. All proposals must be Working Group on Brownfields, and Agency. postmarked or sent to EPA via registered builds relationships with other Dated: October 27, 1998. or tracked mail by the expiration dates stakeholders on the national and local William D. Dickerson, cited above. Applications postmarked levels to develop coordinated after December 11, 1998, will be Director, NEPA Compliance Division, Office approaches for community of Federal Activities. considered in the second round of revitalization. competition. [FR Doc. 98–29175 Filed 10–29–98; 8:45 am] Funding for the brownfields ADDRESSES: Application booklets can be assessment pilots is authorized under BILLING CODE 6560±50±P obtained by calling the Superfund section 104(d)(1) of the Comprehensive Hotline at the following numbers: Environmental Response, Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58381

Compensation, and Liability Act of ENVIRONMENTAL PROTECTION International 1980, as amended, (CERCLA or AGENCY Ms. Wendy Graham—202/564–6602 Superfund), 42 U.S.C. 9604(d)(1). States Indigenous Peoples [FRL±6182±6] (including U.S. Territories), political Mr. Danny Gogal—202/564–2576 subdivisions (including cities, towns, National Environmental Justice Public Participation counties), and federally recognized Advisory Council Notification of Ms. Renee Goins—202/564–2598 Indian Tribes are eligible to apply. EPA Meeting and Public Comment Waste/Facility Siting welcomes and encourages applications Period(s); Open Meetings Mr. Kent Benjamin—202/260–2822 from coalitions of such entities, but a Air & Water single eligible entity must be identified AGENCY: Environmental Protection Mr. Will Wilson—202/260–5574 as the legal recipient. Cooperative Agency (EPA). Ms. Alice Walker—202/260–1919 agreement funds will be awarded only ACTION: Notice. Members of the public who wish to to a state, to an officially recognized participate in one of the public political subdivision of a state, or to a SUMMARY: Pursuant to the Federal comment periods should register to do federally recognized Indian tribe. For Advisory Committee Act (FACA), Public so by December 2, 1998. Individuals or non-state applicants, please include a Law 92–463, we now give notice that groups making oral presentations during statement verifying that your entity has the National Environmental Justice the public comment period will be been authorized by the state to exercise Advisory Council (NEJAC) along with limited to a total time of five minutes. governmental powers. the subcommittees will meet on the If you wish to submit written comments dates and times described below. All Through a brownfields cooperative of any length (at least 50 copies), they times noted are Central Standard Time. should also be received by December 2, agreement, EPA authorizes an eligible All meetings are open to the public. Due state, political subdivision, Territory, or 1998. Comments received after that date to limited space, seating at the NEJAC will be provided to the Council as Indian Tribe to undertake activities meeting will be on a first-come basis. under CERCLA section 104. All logistics allow. Correspondence Documents that are the subject of concerning registration should be sent restrictions on EPA’s use of funding NEJAC reviews are normally available cited in CERCLA also apply to to Tama Clare of Tetra Tech from the originating EPA office and are Environmental Management, Inc. at: brownfields assessment pilot not available from the NEJAC. The cooperative agreement recipients. 1593 Spring Hill Road, Suite 300, NEJAC and subcommittee meetings will Vienna, VA 221882, phone (703) 287– The proposal evaluation panels will take place at the Baton Rouge Hilton, 8808 or fax (703) 287–8843. Hearing- review the proposals carefully and 5500 Hilton Avenue, Baton Rouge, impaired individuals or non-English assess each response based on how well Louisiana 70808, phone: 504/924–5000. speaking attendees wishing to arrange it addresses the selection criteria, briefly The meeting dates are as follows: for a sign language or foreign language outlined below: December 7, 1998 through December 10, interpreter, may make appropriate 1. Problem Statement and Needs 1998. arrangements using these numbers also. Assessment (4 points out of 20) Registration for the NEJAC meeting In addition, NEJAC offers a toll-free will begin on Monday, December 7, —Effect of Brownfields on your Registration Hotline at 888/335–4299. 1998 at 5 p.m. Two public comment For on-line registration, you may visit Community or Communities periods have been scheduled for —Value Added by Federal Support the Internet site: http://www.ttemi.com/ Monday, December 7, 1998 from 7 p.m. nejac/register.html. 2. Community-Based Planning and to 9 p.m., and on Wednesday, December Involvement (6 points out of 20) 9, 1998 from 7 p.m. to 9 p.m. The full Dated: October 23, 1998. Robert J. Knox, —Existing Local Commitment NEJAC will convene Tuesday, December 8, 1998 from 9 a.m. to 5:30 p.m., and on Designated Federal Official, National —Community Involvement Plan Thursday, December 10, 1998 from 9 Environmental Justice Advisory Council. —Environmental Justice Plan a.m. to 5 p.m. Business will include [FR Doc. 98–29158 Filed 10–29–98; 8:45 am] 3. Implementation Planning (6 points follow-up on pending items from the BILLING CODE 6560±50±P out of 20) previous NEJAC meeting, discussion of —Government Support activities related to the NEJAC Assessment Workgroup, and ENVIRONMENTAL PROTECTION —Site Selection and Environmental introduction and discussion of new AGENCY Site Assessment Plan business items. All subcommittees of [FRL±6182±8] —Reuse Planning and Proposed the NEJAC, including the new Air and Cleanup Funding Mechanisms Water Subcommittee, will meet on Notice of Availability: The Office of —Flow of Ownership Plan Wednesday, December 9, 1998 from Solid Waste (OSW) is Announcing the 4. Long-Term Benefits and 8:30 a.m. to 5 p.m. Any member of the Availability of a New Draft Guidance Sustainability (4 points out of 20) public wishing additional information Document Entitled Human Health Risk on the subcommittee meetings should Assessment Protocol for Hazardous —Long-Term Benefits contact the specific Designated Federal Waste Combustion Facilities —Sustainable Reuse Official at the telephone number listed AGENCY: —Measures of Success below. Environmental Protection Agency. Dated : October 22, 1998. Subcommittee and Federal Official and ACTION: Notice of document availability Linda Garczynski, Telephone Number and public comment period. Director, Outreach and Special Projects Staff, Enforcement Office of Solid Waste and Emergency Ms. Sherry Milan—202/564–2619 SUMMARY: The Environmental Protection Response. Health & Research Agency (‘‘EPA’’ or ‘‘the Agency’’) is [FR Doc. 98–29159 Filed 10–29–98; 8:45 am] Mr. Lawrence Martin—202/564–6497 providing notice that the following draft BILLING CODE 6560±50±P Mr. Chen Wen—202/260–4109 guidance document: Human Health Risk 58382 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Assessment Protocol for Hazardous ADDRESSES: Commenters must send the additional copy of their comments on Waste Combustion Facilities (Peer original and two copies of their labeled personal computer diskettes in Review Draft) is available and that a 60- comments referencing docket number ASCII (TEXT) format or a word day public review period of the F–98–HHRA–FFFFF to: RCRA processing format that can be converted document will begin today. In addition, Information Center (RIC), Office of Solid to ASCII(TEXT). It is essential to specify this document will be undergoing an Waste (5305G), U.S. Environmental on the disk label the word processing external peer review which will be Protection Agency Headquarters (EPA, software and version/edition as well as organized and conducted by EPA’s HQ), 401 M Street, SW, Washington, DC the commenter’s name. This will allow contractor, Tech Law. Information 20460. Comments submitted EPA to convert the comments into one regarding the peer review process will electronically comments should be of the word processing formats utilized be published in a Federal Register identified by the docket number F–98– by the Agency. Please use mailing notice at a later date. HHRA–FFFFF and submitted to: RCRA- envelopes designed to physically This EPA document will serve to [email protected]. Submit protect the submitted diskettes. EPA update and replace the existing draft electronic comments in an ASCII file emphasizes that submission of guidance entitled: ‘‘Guidance for and avoid the use of special characters comments on diskettes is not Performing Screening Level Risk and any form of encryption. EPA’s mandatory, nor will it result in any Analyses at Combustion Facilities Office of Solid Waste (OSW) also advantage or disadvantage to any Burning Hazardous Wastes’ (April 15, accepts data on disks in Wordperfect 6.1 commenter. This expedited procedure is 1994 draft). This updated document file format. in conjunction with the Agency contains the Office of Solid Waste’s Commenters should not submit any ‘‘Paperless Office’’ campaign. recommended approach for conducting confidential business information (CBI) Dated: October 21, 1998. site-specific risk assessments on RCRA electronically. An original and two Elizabeth A. Cotsworth, hazardous waste combustors. The goal copies of the CBI must be submitted Acting Director, Office of Solid Waste. of this guidance document is to develop under separate cover to: Regina Magbie, an understanding of the potential RCRA CBI Document Control Officer, [FR Doc. 98–29157 Filed 10–29–98; 8:45 am] human health risks associated with the Office of Solid Waste (5305W), U.S. BILLING CODE 6560±50±P emissions from hazardous waste EPA, 401 M Street SW, Washington, DC combustors. This guidance document 20460. ENVIRONMENTAL PROTECTION includes specific parameters, pathways Public comment and supporting AGENCY and algorithms to evaluate both direct materials will be made available for and indirect risks. OSW intends to use viewing from 9 a.m. to 4 p.m., Monday [FRL±6172±1] the results of the risk assessments to through Friday (except Federal provide a basis for risk management holidays) in the RIC, located at Crystal Issuance of NPDES General Permits decisions in hazardous waste combustor Gateway One, 1235 Jefferson Davis for Wastewater Lagoon Systems permitting and to ensure that the Highway, First Floor, Arlington, Located On Indian Reservations in MT, permits are protective of human health Virginia. To review docket materials, ND, SD, and UT and the environment. the public must make an appointment AGENCY: Environmental Protection All public comments should be by calling (703) 603–9230. The public Agency (EPA). received by December 29, 1998 to be may copy a maximum of 100 pages from ACTION: Notice of final permit considered by the Agency. The public any regulatory docket at no charge. decision—issuance of NPDES general comments will be for the Agency’s Additional copies cost $0.15 per page. permits. evaluation only and will not be part of The docket index and notice are the peer review process. All comments available electronically. See the SUMMARY: Region VIII of EPA is hereby received from the public and the peer ‘‘Supplementary Information’’ section giving notice of its issuance of National review will be considered when the for information on accessing it. Pollutant Discharge Elimination System Agency finalizes this document. SUPPLEMENTARY INFORMATION: For paper (NPDES) general permits for wastewater DATES: Public comments on the or CD–ROM copies of the guidance lagoon systems located on Indian document Human Health Risk document, please contact the RCRA Reservations in the States of MT, ND, Assessment Protocol for Hazardous Information Center (RIC), Office of Solid SD, and UT, and treating primarily Waste Combustion Facilities should be Waste (5305G), U.S. Environmental domestic wastewater. The use of received by the docket no later than Protection Agency Headquarters (EPA, wastewater lagoon systems is the most December 29, 1998. HQ), 401 M Street, SW, Washington, DC common method of treating municipal FOR FURTHER INFORMATION CONTACT: For 20460, (703) 603–9230. The document is wastewater and domestic wastewater further information contact the RCRA a three volume set, the document from isolated housing developments, Hotline at (800) 424–9346 or TDD (800) numbers are EPA 530–D–98–001A; 530– schools, etc., on the Indian Reservations 553–7672 (hearing impaired). In the D–98–001B; and 530–D–98–001C. in those states. Region VIII will be using Washington, DC metropolitan area, call Copies of this document may also be general permits instead of individual (703) 412–9810 or TDD (703) 412–3323. obtained from the RCRA Hotline at (800) permits for permitting the discharges For specific questions on 424–9346 or TDD (800) 553–7672 from many of those facilities in order to implementation of the methods (hearing impaired). In the Washington, reduce the Region’s administrative described in this document, please DC metropolitan area, call (703) 412– burden of issuing separate individual contact your RCRA regulatory authority; 9810 or TDD (703) 412–3323. The permits. The administrative burden for for other questions contact Karen document is also available in electronic the regulated sources is expected to be Pollard, Office of Solid Waste, 5307W format on the world wide web at: http:/ about the same under the general U.S. Environmental Protection Agency, /www.epa.gov/epaoswer/hazwaste/ permits as with individual permits, but 401 M Street, SW., Washington, DC combust/riskhtm. it will be much quicker to obtain permit 20460; phone: (703) 308–3948; e-mail: EPA is asking prospective coverage with general permits than with Pollard.Karen@EPA mail.EPA.gov. commenters to voluntarily submit one individual permits. The discharge Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58383 requirements would be essentially the ADDRESSES: The public record is located also be downloaded from the EPA same with an individual permit or at EPA Region 8, and is available upon Region VIII web page at hhtp:// under the general permit. A separate written request. Requests for copies of www.epa.gov/region08/html/npdes/ general permit will cover the the public record, including a complete lagoons.html. aforementioned facilities within the copy of response to comments and the FOR FURTHER INFORMATION CONTACT: exterior boundaries of a single general permit should be addressed to Questions regarding the specific permit reservation. William Kennedy, STATE requirements may be directed to Bruce ASSISTANCE PROGRAM (8P–SA); Kent, telephone (303) 312–6133. DATES: These general permits shall be ATTENTION: NPDES PERMITS; U.S. effective on December 1, 1998, and SUPPLEMENTARY INFORMATION: General EPA, REGION VIII; 999 18TH STREET, expire at midnight on September 30, permits will be issued for discharges SUITE 500; DENVER, CO 80202–2466. from wastewater lagoon systems located 2003. Copies of the permit and Fact Sheet may on the following Indian Reservations:

Permit No. Indian reservation

Montana: MTG581### ...... Blackfeet Indian Reservation; MTG582### ...... Crow Indian Reservation; MTG583### ...... Flathead Indian Reservation; MTG584### ...... Fort Belknap Indian Reservation; MTG585### ...... Fort Peck Indian Reservation; MTG586### ...... Northern Cheyenne Indian Reservation; and, MTG587### ...... Rocky Boy's Indian Reservation. North Dakota: NDG581### ...... Fort Berthold Indian Reservation; NDG582### ...... Fort Totten Indian ReservationÐAlso known as Devils Lake Indian Reservation; NDG583### ...... Standing Rock Indian ReservationÐIncludes the entire Reservation, which is located in both North Dakota and South Dakota; and, NDG584### ...... Turtle Mountain Indian Reservation. South Dakota: SDG581### ...... Cheyenne River Indian Reservation; SDG582### ...... Crow Creek Indian Reservation; SDG583### ...... Flandreau Indian Reservation; SDG584### ...... Lower Brule Indian Reservation; SDG585### ...... Pine Ridge Indian ReservationÐIncludes the entire Reservation, which is located in both South Dakota and Ne- braska; and, SDG586### ...... Rosebud Indian Reservation. Utah: UTG581### ...... Northern Shoshoni Indian Reservation; UTG582### ...... Paiute Indian ReservationsÐseveral very small reservations, including Cedar City, Indian Peaks, Kanosh, Koosharem, and Shivwits, located in the southwest quarter of Utah; UTG583### ...... Skull Valley Indian Reservation; and, UTG584### ...... Uintah and Ouray Indian Reservation.

General permits are not being issued starting to discharge; (2) permission is Department of Fish Wildlife and Parks- for the portions of the Navajo Indian required before starting to discharge; Jocko Fish Hatchery (no permit), and Reservation and the Goshutes Indian and (3) the lagoon system is required to SKHA-Woodcock Homesites (no Reservation in Utah since the permitting have no discharge except in accordance permit). The effluent limitations for activities for these reservations are done with the bypass provisions of the lagoons coming under categories 1 and by Region IX of EPA. Also, general permit. Coverage under the general 2 are based on the Federal Secondary permits are not being issued for the permit for the Flathead Indian Treatment Regulation (40 CFR part 133) Southern Ute Indian Reservation located Reservation coverage is limited to and best professional judgement (BPJ). in the State of Colorado and the Ute category 3 lagoon systems that are There are provisions in the general Mountain Indian Reservation located in required to have no discharge except in permits for adjusting the effluent the States of Colorado, New Mexico, and accordance with the bypass provisions limitations on total suspended solids Utah because of water quality concerns of the permit. The limited coverage is a (TSS) and pH in accordance with the in the San Juan River Basin portion of condition of certification by the provisions of the Secondary Treatment the Colorado River Basin. Because of Confederated Salish and Kootenai Regulation. If more stringent and/or comments received, a general permit Tribes of the Flathead Nation. The additional effluent limitations are will not be issued on the Wind River following facilities on the Flathead considered necessary to comply with Indian Reservation in Wyoming. Indian Reservation will not be eligible applicable water quality standards, etc., With the exception of the general for coverage under the general permit: those limitations may be imposed by permit for the Flathead Indian Charlo Water and Sewer District (MT– written notification to the permittee. Reservation, coverage under the general 0022551), Town of Hot Springs (MT– Lagoon systems under category 3 are permits will be limited to lagoon 0020591), City of Polson (MT–0020559), required to have no discharge except in systems treating primarily domestic City of Ronan (MT–0021474), Town of accordance with the bypass provisions wastewater and will include the St. Ignatius (MT–0020524), Salish & of the permit. Self-monitoring following three categories: (1) lagoons Kootenai Housing Authority-St. Ignatius requirements and routine inspection where no permission is required before Southside (MT–0029017), Montana requirements are included in all 58384 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices permits. Based on comments received, U.S.C. 552b), notice is hereby given that to the geographic scope of the monitoring requirements for category 3 at 9:51 a.m. on Tuesday, October 27, Agreement. facilities were increased to three times 1998, the Board of Directors of the By Order of the Federal Maritime per week during the first week of Federal Deposit Insurance Corporation Commission. discharge and once per week thereafter. met in closed session to consider Dated: October 26, 1998. If the discharge lasts less than one week matters relating to the Corporation’s Joseph C. Polking, in duration, three samples must be liquidation, corporate, supervisory and Secretary. collected, i.e. beginning, middle, and administrative enforcement activities. [FR Doc. 98–29083 Filed 10–29–98; 8:45 am] end of discharge. In calling the meeting, the Board With the exception of the Flathead determined, on motion of Vice BILLING CODE 6730±01±M Indian Reservation and the Fort Peck Chairman Andrew C. Hove, Jr., Indian Reservation, where the Tribes seconded by Director Julie Williams have Clean Water Act section 401(a)(1) (Acting Comptroller of the Currency), FEDERAL RESERVE SYSTEM certification authority, EPA has certified concurred in by Director Ellen S. Sunshine Act Meeting that the permit complies with the Seidman (Director, Office of Thrift applicable provisions of the Clean Water Supervision), and Chairman Donna AGENCY HOLDING THE MEETING: Board of Act so long as the permittees comply Tanoue, that Corporation business Governors of the Federal Reserve with all permit conditions. The permits required its consideration of the matters System. will be issued for a period of five years, on less than seven days’ notice to the TIME AND DATE: 10:00 a.m., Wednesday, with the permit effective date of public; that no earlier notice of the November 4, 1998. December 1, 1998 and an expiration meeting was practicable; that the public PLACE: Marriner S. Eccles Federal date of September 30, 2003. interest did not require consideration of Reserve Board Building, C Street Economic Impact (Executive Order the matters in a meeting open to public entrance between 20th and 21st Streets, 12866): EPA has determined that the observation; and that the matters could N.W., Washington, D.C. 20551. issuance of this general permit is not a be considered in a closed meeting by STATUS: Open. ‘‘significant regulatory action’’ under authority of subsections (c)(4), (c)(6), MATTERS TO BE CONSIDERED: the terms of Executive Order 12866 (58 (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10) Summary Agenda: Because of their FR 51735, October 4, 1993) and is of the ‘‘Government in the Sunshine routine nature, no discussion of the therefore not subject to formal OMB Act’’ (5 U.S.C. 552b(c)(4), (c)(6), (c)(8), following items is anticipated. These review prior to proposal. (c)(9)(A)(ii), (c)(9)(B), and (c)(10)), matters will be voted on without Paperwork Reduction Act: EPA has The meeting was held in the Board discussion unless a member of the reviewed the requirements imposed on Room of the FDIC Building located at Board requests that the items be moved regulated facilities in these proposed 550—17th Street, N.W., Washington, to the discussion agenda. general permits under the Paperwork D.C. 1. Proposed 1999 Private Sector Reduction Act of 1980, 44 U.S.C. 3501 Dated: October 27, 1998. Adjustment Factor. et seq. The information collection Federal Deposit Insurance Corporation 2. Cost of Federal Reserve notes in requirements of these permits have James D. LaPierre, 1999. already been approved by the Office of Deputy Executive Secretary. Discussion Agenda: Management and Budget in submissions 3. Proposed 1999 fee schedules for [FR Doc. 98–29260 Filed 10–28–98; 11:45 made for the NPDES permit program am] priced services. under the provisions of the Clean Water 4. Any items carried forward from a BILLING CODE 6717±01±M Act. Regulatory Flexibility Act (RFA) as previously announced meeting. amended by the Small Business Note: This meeting will be recorded for the Regulatory Enforcement Fairness Act benefit of those unable to attend. Cassettes (SBREFA): After review of the facts FEDERAL MARITIME COMMISSION will then be available for listening in the present in the notice printed above, I Board’s Freedom of Information Office, and hereby certify pursuant to the Notice of Agreement(s) Filed copies can be ordered for $6 per cassette by provisions of 5 U.S.C. 605(b) that these calling 202–452–3684 or by writing to: The Commission hereby gives notice Freedom of Information Office, Board of general permits will not have a of the filing of the following Governors of the Federal Reserve System, significant impact on a substantial agreement(s) under the Shipping Act of Washington, D.C. 20551. number of small entities. 1984. Interested parties can review or CONTACT PERSON FOR MORE INFORMATION: Authority: Clean Water Act, 33 U.S.C. 1251 obtain copies of agreements at the Lynn S. Fox, Assistant to the Board; et seq. Washington, DC offices of the 202–452–3204. Commission, 800 North Capitol Street, Dated: October 20, 1998. SUPPLEMENTARY INFORMATION: You may N.W., Room 962. Interested parties may Kerrigan G. Clough, call 202–452–3206 for a recorded submit comments on an agreement to Assistant Regional Administrator, Office of announcement of this meeting; or you the Secretary, Federal Maritime Partnerships and Regulatory Assistance. may contact the Board’s Web site at Commission, Washington, DC 20573, [FR Doc. 98–29160 Filed 10–29–98; 8:45 am] http://www.federalreserve.gov for an within 10 days of the date this notice BILLING CODE 6560±50±P electronic announcement. (The Web site appears in the Federal Register. also includes procedural and other Agreement No.: 202–011572–003. information about the open meeting.) Title: Colombia Independent Carrier FEDERAL DEPOSIT INSURANCE Agreement. Dated: October 28, 1998. CORPORATION Parties: Frontier Liner Services, King Robert deV. Frierson, Sunshine Act Meeting Ocean de Colombia, Seaboard Marine Associate Secretary of the Board. Ltd. [FR Doc. 98–29257 Filed 10–28–98; 11:09 Pursuant to the provisions of the Synopsis: The proposed amendment am] ‘‘Government in the Sunshine Act’’ (5 would add the Pacific Coast of Colombia BILLING CODE 6210±01±P Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58385

FEDERAL RESERVE SYSTEM FEDERAL RETIREMENT THRIFT 8. Annual ethics briefing. INVESTMENT BOARD Sunshine Act Meeting Notice CONTACT PERSON FOR MORE INFORMATION: Sunshine Act Meeting Thomas J. Trabucco, Director, Office of AGENCY HOLDING THE MEETING: Board of External Affairs, (202) 942–1640. Governors of the Federal Reserve TIME AND DATE: 9:00 a.m. (EST) System. November 9, 1998. DATE: October 27, 1998. TIME AND DATE: Approximately 10:30 PLACE: 4th Floor, Conference Room, John J. O’Meara, a.m., Wednesday, November 4, 1998, 1250 H Street, N.W., Washington, D.C. Secretary to the Board, Federal Retirement following a recess at the conclusion of STATUS: Open. Thrift Investment Board. the open meeting. MATTERS TO BE CONSIDERED: [FR Doc. 98–29183 Filed 10–27–98; 4:41 pm] PLACE: Marriner S. Eccles Federal 1. Approval of the minutes of the BILLING CODE 6760±01±M Reserve Board Building, 20th and C October 13, 1998, Board member Streets, N.W., Washington, D.C. 20551. meeting. STATUS: Closed. 2. Thrift Savings Plan activity report by the Executive Director. MATTERS TO BE CONSIDERED: FEDERAL TRADE COMMISSION 3. Review of KPMG Peat Marwick 1. Proposals regarding the final audit reports: design, budget, and construction Granting of Request for Early activities for a Federal Reserve Bank’s ‘‘Pension and Welfare Benefits Termination of the Waiting Period building project. Administration Review of the Under the Premerger Notification 2. Personnel actions (appointments, Policies and Procedures of the Rules promotions, assignments, Federal Retirement Thrift reassignments, and salary actions) Investment Board Staff’’ Section 7A of the Clayton Act, 15 ‘‘Pension and Welfare Benefits involving individual Federal Reserve U.S.C. 18a, as added by Title II of the Administration Review of the Thrift System employees. Hart-Scott-Rodino Antitrust Savings Plan Abandonment Policies 3. Any matters carried forward from a Improvements Act of 1976, requires previously announced meeting. of the Federal Retirement Thrift Investment Board’’ persons contemplating certain mergers CONTACT PERSON FOR MORE INFORMATION: ‘‘Pension and Welfare Benefits or acquisitions to give the Federal Trade Lynn S. Fox, Assistant to the Board; Administration Data Security Commission and the Assistant Attorney 202–452–3204. Vulnerability Study at the United General advance notice and to wait SUPPLEMENTARY INFORMATION: You may States Department of Agriculture, designated periods before call 202–452–3206 beginning at National Finance Center’’ consummation of such plans. Section approximately 5 p.m. two business days ‘‘Pension and Welfare Benefits 7A(b)(2) of the Act permits the agencies, before the meeting for a recorded Administration Year 2000 Program in individual cases, to terminate this announcement of bank and bank Analysis of the Thrift Savings Plan waiting period prior to its expiration holding company applications at the Federal Retirement Thrift and requires that notice of this action be scheduled for the meeting; or you may Investment Board and the U.S. published in the Federal Register. contact the Board’s Web site at http:// Department of Agriculture, National www.federalreserve.gov for an Finance Center’’ The following transactions were electronic announcement that not only ‘‘Pension and Welfare Benefits granted early termination of the waiting lists applications, but also indicates Administration Detailed Analysis of period provided by law and the procedural and other information about Thrift Savings Plan Accounts for premerger notification rules. The grants the meeting. Valid Social Security Numbers’’ were made by the Federal Trade 4. Review of status of audit Commission and the Assistant Attorney Dated: October 28, 1998. recommendations. General for the Antitrust Division of the Robert deV. Frierson, 5. Labor Department audit briefing. Department of Justice. Neither agency Associate Secretary of the Board. 6. Quarterly investment policy intends to take any action with respect [FR Doc. 98–29258 Filed 10–28–98; 11:09 review. to these proposed acquisitions during am] 7. Approval of criteria for selection of the applicable waiting period. BILLING CODE 6210±01±P S and I Fund managers.

TRANSACTION GRANTED EARLY TERMINATION

Transaction ET date No. ET req status Party name

28±SEP±98 ...... 19984720 G Shorewood Packaging Corporation. G Queens Group, Inc. G Queens Group, Inc. 19984726 G Meridian Diagnostics, Inc. G Fresenius A.G. G Gull Laboratories, Inc. 19984729 G Windward Capital Associates, L.P. G Fleming Companies, Inc. G Fleming Companies, Inc. 19984733 G Mead Corporation (The). G Louisiana-Pacific Corporation. G Creative Point, Inc. 19984735 G Petroleos de Venezuela, S.A. G Amerada Hess Corporation. 58386 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

TRANSACTION GRANTED EARLY TERMINATIONÐContinued

Transaction ET date No. ET req status Party name

G Hess Oil Virgin Islands Corp. 19984736 G Amerada Hess Corporation. G Amerada Hess Corporation. G Hess Oil Virgin Islands Corp. 19984737 G Hanover Compressor Company. G Eureka Energy Systems, Inc. G Eureka Energy Systems, Inc. 19984738 G Chancellor Media Corporation. G BCI Growth III, L.P. G The Primedia Broadcast Group. 19984749 G Tribune Company. G Jon S. Kelly. G Kelly Television Co. 19984751 G Johnson & Johnson. G BioCryst Pharmaceuticals, Inc. G BioCryst Pharmaceuticals, Inc. 19984755 G Meredith Corporation. G Tribune Company. G WGNX Inc. 19984759 G CHB Capital Partners, L.P. G Ha-Marque Fabricators, Inc. G Ha-Marque Fabricators, Inc. 19984763 G Ford Motor Company. G Jimmy C. Payton. G Payton-Wright Ford Sales, Inc. 29±SEP±98 ...... 19984296 G Reilly Family Limited Partnership. G Outdoor Communications, Inc. G Outdoor Communications, Inc. 19984350 G Dairy Farmers of America. G California Gold Dairy Products. G California Gold Dairy Products. 19984388 G Stryker Corporation. G Pfizer Inc. G Howmedica Worldwide Business. 19884531 G General Electric Company. G Airplanes Limited. G Airplanes Limited. 19984546 G Park-Ohio Holdings Corp. G C. Charles Watterson. G Charken Company, Inc. 19984547 G Park-Ohio Holdings, Corp. G Kenneth P. Watterson. G Charken Company, Inc. 19984579 G Genstar Capital Partners II, L.P. G Union Pacific Corporation. G Skyway Freight Systems, Inc. 19984621 G Hanson PLC. G Condux Corporation. G Condux Corporation. 19984642 G Gibraltar Steel Corporation. G Anthony & Frances Fortuna. G Rock River Heat Treating Company. G Harbor Metal Treating Co. G Harbor Metal Treating of Indiana, Inc. 19984643 G Tele-Communications, Inc. G Cable TV Fund 14±A, Ltd. G Cable TV Fund 14±A, Ltd. 19984675 G GS Capital Partners II, L.P. G Bechtel Group, Inc. G East Syracuse Generating Company, L.P. 19984677 G GS Capital Partners II, L.P. G PG&E Corporation. G East Syracuse Generating Company, L.P. 19984709 G Cedar Creek Partners LLC. G Netcom, Inc. G Netcom, Inc. 19984717 G Cogeneration Corporation of America. G Northern States Power Company. G Oklahoma Loan Acquisition Corporation. 19984718 G Amedisys, Inc. G Columbia/HCA Healthcare Corporation. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58387

TRANSACTION GRANTED EARLY TERMINATIONÐContinued

Transaction ET date No. ET req status Party name

G Crestwood Healthcare, L.P. G Galen Hospital Corporation of Texas, Inc. G and 28 other subsidiaries. G Montgomery Regional Hospital, Inc. G Selma Medical Center, Inc. 19984731 G Franklin P. Perdue. G IMASCO Limited. G GOL±PAK Holdings, Inc. 19984772 G Norsk Hydro ASA. G Meridian Technologies Inc. G Meridian Technologies Inc. 30±SEP±98 ...... 19981707 G N.V. Koninklije Nederlandsche Petroleum Maatschap. G The Coastal Corporation. G ANR Field Services Company; ANR Production Company. 19983799 G Medtronic, Inc. G Physio-Control International Corporation. G Physio-Control International Corporation. 19984508 G CMS Energy Corporation. G Carolyn Louise Adams. G Continental Natural Gas, Inc. 19984584 G Carolyn Louise Adams. G CMS Energy Corporation. G CMS Energy Corporation. 19984641 G Tele-Communications, Inc. G Jones Growth Partners L.P. G Jones Growth Partners L.P. 19984670 G American Financial Group, Inc. G Old Republic Life Insurance Group, Inc. G Old Republic Life Insurance Company of New York. 19984697 G First Investors Financial Services Group., Inc. G Fortis AG S.A. G Auto Lenders Acceptance Corporation. 19984698 G irst Investors Financial Services Group, Inc. G Fortis AMEV N.V. G Auto Lenders Acceptance Corporation. 19984707 G HK Systems, Inc. G Endura Software Corporation. G Endura Software Corporation. 19984712 G Rhone Captial LLC. G Michael A. Bumstead. G Bumstead Manufacturing, Inc. G Bumstead Manufacturing, Inc. Charitable Remainder Trust. 19984713 G Rhone Captial LLC. G Steven G. Bumstead. G Bumstead Manufacturing, Inc. G Bumstead Manufacturing, Inc. Charitable Remainder Trust. 19984756 G Met-Pro Corporation. G Vivendi, a French company. G Flex-Kleen Corporation. 01±OCT±98 ...... 19982847 G Metallgesellschaft AG. G Cyprus Amax Minerals Corporation. G Cyprus Foote Mineral Corporation. 19984514 G Hitachi, Ltd. G AB Volvo. G Euclid-Hitachi Heavy Equipment, Inc. 19984683 G John J. Rigas. G Doris Holdings, L.P. G SVHH Cable Acquisition, L.P. 19984757 G Fresenius Aktiengesellschaft. G Pharmacia & Upjohn, Inc. G Pharmacia & Upjohn, Co. 02±OCT±98 ...... 19984568 G Heritage Fund II, L.P. G BankAmerica Corporation. G Duo-Tang, Inc. 19984571 G Florida Dairy Farmers' Association. G Tampa Independent Dairy Farmers' Association, Inc. G Tampa Independent Dairy Farmers' Association, Inc. 19984638 G Tele-Communications, Inc. G Cable TV Fund 15±A, Ltd. G Cable TV Fund 15±A, Ltd. 19984659 G John D. Phillips. 58388 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

TRANSACTION GRANTED EARLY TERMINATIONÐContinued

Transaction ET date No. ET req status Party name

G World Access, Inc. G World Access, Inc. 19984673 G HCC Insurance Holdings, Inc. G Howard V. Barton. G Sun Employer Services, Inc. 19984689 G Dumas M. Simeus. G Imasco Limited. G Imasco Holdings, Inc. G Fast Food Merchandisers, Inc. 19984694 G Schurz Investment Partnership. G Arvida/JMB Partners, L.P. G Gulf and Pacific Communications Limited Partnership. 19984699 G Michael Lambert. G Roy Speer. G Speer Communications Holding I Limited Partnership. G WNAB Limited Partnership. G WNAB Channel 58 Nashville Inc. 19984710 G Golder, Thoma, Cressey, Rauner Fund V, L.P. G Curtis L. and LaVonne A. Hough. G Hough Real Estate Company. G H & H Trucking, Inc. G Cambridge Metals & Plastics, Inc. 19984711 G Dean Foods Company. G Berkeley Farms, Inc. G Berkeley Farms, Inc., a California Corporation. 19984727 G Enron Corp. G Kafus Environmental Industries, Ltd. G Kafus Environmental Industries, Ltd. 19984742 G Michael R. Cannon. G Unique Casual Restaurants, Inc. G Fuddruckers, Inc. 19984753 G Infocure Corporation. G Reynolds and Reynolds Company (The). G Health Care Systems Division. 19984760 G Fujirebio Inc. G Centocor, Inc. G CDP Holdings Corp. G Centocor Diagnostics of Pennsylvania, Inc. 19984766 G R&B Falcon Corporation. G Cliffs Drilling Company. G Cliffs Drilling Company. 19984771 G Watsco, Inc. G Leon P. Brassard. G Heat, Inc. 19984776 G Ocean Group plc. G Kenneth Lashutka. G A.W. Fenton. 19984777 G America Online, Inc. G Geraldine Bond Laybourne and Lawrence C. Laybourne. G Oxygen Media, Inc. 19984782 G Organization Real, S.A. De C.V. G White Cap, Inc. G White Cap, Inc. 19984783 G Enrique Garcia Gamboa. G White Cap, Inc. G White Cap, Inc. 19984786 G CKS Group, Inc. G USWeb Corporation. G USWeb Corporation. 19984787 G USWeb Corporation. G CKS Group, Inc. G CKS Group, Inc. 19984789 G Beverly Enterprises, Inc. G Rodney K. Kebo and Kathleen S. Kebo. G M±K Home Medical, Inc. 19984790 G MAAX, Inc. G Sunbeam Corporation. G Coleman Spas, Inc. 19984791 G General Parts, Inc., a North Carolina Corporation. G APS Holding Corporation, a Delaware Corporation. G APS Holding Corporation, a Delaware Corporation. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58389

TRANSACTION GRANTED EARLY TERMINATIONÐContinued

Transaction ET date No. ET req status Party name

19984798 G Carriage Services, Inc. G Service Corporation International. G RMG Trust; SCI Oklahoma Funeral Services, Inc. G SCI Virginia Funeral Services, Inc. 19984801 G Wella AG. G Smith Investment Company. G Belvedere Company. 19984803 G The Reader's Digest Association, Inc. G Rodale Press, Inc. G Leman Publications, Inc. 19984809 G British-Borneo Petroleum Syndicate, P.L.C. G Hardy Oil & Gas plc. G Hardy Oil & Gas plc. 19984810 G English China Clays plc. G Minco Acquisition Corporation. G Minco Acquisition Corporation. 19984811 G Jacor Communications, Inc. G Kenneth J. Roberts. G KADM(FM), L.P. G Kelsho Communications, L.P. 19984820 G Chancellor Media Corporation. G General Electric Company G Pegasus Broadcasting of San Juan, L.L.C. 19984821 G Coloniale S.r.l. G John E. Nahra. G DASI Products, Inc. G DASI Manufacturing. 05±OCT±98 ...... 19984660 G World Access, Inc. G James R. Elliott. G Cherry Communications, Inc. 19984702 G MEI Holdings, L.P. G HR Funding, L.P. G Houlihan's Restaurant Group, Inc. 19984703 G HR Funding, L.P. G MEI Holdings, L.P. G Malibu Entertainment Worldwide, Inc. 19984823 G Sybron International Corporation. G Thomas Lansing. G Pinnacle Products of Wisconsin, Inc. 19984824 G Walter Scott, Jr. G Commonwealth Telephone Enterprises, Inc. G Commonwealth Telephone Enterprises, Inc. 19984828 G Flathead Electric Cooperative, Inc. G PacifiCorp. G PacifiCorp. 06±OCT±98 ...... 19984624 G Shamrock Holdings, Inc. G Brierley Investments Limited. G Brierley Investments Limited. 19984654 G Sulzer AG. G Harsco Corporation. G Harsco UK. 19984778 G Geraldine Bond Laybourne and Lawrence C. Laybourne. G America Online, Inc. G America Online, Inc. G Mom's Club, Inc. G AOLV Health Living Channel, Inc. 19984785 G Winbond Electronics Corporation. G Information Storage Devices, Inc. G Information Storage Devices, Inc. 19984836 G Triumph Group, Inc. G DV Industries, Inc. G DV Industries, Inc. 07±OCT±98 ...... 19984633 G Catholic Healthcare West. G UniHealth. G Unihealth. 19984745 G DST Systems, Inc. G USCS International, Inc. G USCS International, Inc. 19984752 G Sundstrand Corporation. G Harnischfeger Industries, Inc. 58390 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

TRANSACTION GRANTED EARLY TERMINATIONÐContinued

Transaction ET date No. ET req status Party name

G The Horsburg & Scott Co. 19984754 G Norwest Corporation. G Trivest Fund I, Ltd. G Norwesco, Inc. 19984781 G Welsh Carson Anderson & Stowe, IV, L.P. G MedQuist Inc. G MedQuist Inc. 08±OCT±98 ...... 19984582 G E.I. du Pont de Nemours and Company. G Hewlett-Packard Company. G Hewlett-Packard Company. 19984739 G Carlyle Bottling, L.L.C. G Ace Ginger Beer, Inc. G Ace Ginger Beer, Inc. 19984740 G Cadbury Schweppes plc. G Ace Ginger Beer, Inc. G Ace Ginger Beer, Inc. 19984792 G Welsh, Carson, Anderson & Stowe VIII, L.P. G Concentra Managed Care Inc. G Concentra Managed Care Inc. 09±OCT±98 ...... 19984581 G Franz Haniel & CIE, GmbH. G Marvin and Mildred Conney (husband and wife). G Conney Safety Products Co., Inc. 19984652 G The SKM Equity Fund II, L.P. G Hayim Abulafia. G World Bazaars, Inc. 19984704 G Windward Capital Associates, L.P. G Robert Llorens. G Lorro, Inc. 19984725 G Darigold Farms. G Jack Bruni. G Echo Spring Dairy, Inc. 19984769 G Stephen E. Myers. G Narragansett Capital Partners-A, L.P. G Fanch Cablevision of Colorado, Limited Partnership. 19984774 G Basic American Inc. G Diageo plc. G The Pillsbury Company. 19984788 G Queensway Financial Holdings Limited. G The Allstate Corporation. G Pembridge Insurance Services Corp. + 19984793 G Paul G. Allen. G Kelso Investment Associates V, L.P. G CCA Holdings Corp, CCT Holdings Corp. G Charter Communications Long Beach, Inc. 19984794 G Paul G. Allen. G Charter Communications Group. G Charter Communications Inc. 19984817 G Associated British Ports Holdings PLC. G Johnson Controls Inc. G Johnson Controls World Services, Inc. 19984819 G Paul G. Allen. G Charterhouse Equity Partners II, L.P. G Charter Comm II, Inc., Charter Comm, L.L.C. 19984825 G Stichting Administratiekantoor ABN AMRO Holding. G Dr. Aloysio de Andrade Faria. G Taluk S.A. 19984833 G Centex Corporation. G Calton, Inc. G Calton Homes, Inc. 19984842 G Rhone Capital LLC. G John H. Hoag. G Flintlock, Ltd. 19984843 G Dynamex, Inc. G Robert J. Mitzman. G Q International Courier, Inc. 19984845 G The Kroger Co. G Hilander Foods, Inc. G Hilander Foods, Inc. 19984847 G George L. Argyros. G DST Systems, Inc. G DST Systems, Inc. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58391

TRANSACTION GRANTED EARLY TERMINATIONÐContinued

Transaction ET date No. ET req status Party name

19984849 G Medtronic, Inc. G Midas Rex, L.P. G Midas Rex, L.P. 19984851 G Wolseley plc. G John L. Meyer, Jr. G L&H Plumbing and Heating Supplies Inc. 19984854 G TSO Holding Corp. G David Baird, IV. G Haddonfield Lumber Co., U.S. Components, Inc. 19984855 G New American Healthcare Corporation. G Lucius O. Crosby Memorial Hospital. G Lucius O. Crosby Memorial Hospital. 19984856 G UBS AG. G CHB Capital Partners, L.P. G Trussway Holdings, Inc. 19984857 G The Dll Group, Inc. G Hewlett-Packard Company. G Hewlett-Packard Company. 19984861 G Charter plc. G Aluminum Company of America. G Alcotec Wire Company. 19984863 G EOTT Energy Partners, L.P. G Koch Industries. G Koch Industries. 19984866 G Quorum Health Group, Inc. G Northwest Health System, Inc. G Northwest Health System, Inc. 19984867 G MNBA Corporation. G Union Planters Corporation. G Union Planters Corporation. 19990003 G General Motors Corporation. G Asbury Villanova L.L.C. G Asbury Automotive Texas L.L.C., Coggin Saturn, Inc. 19990008 G Ford Motor Company. G Gerald Vanderstyne, Jr. G Vanderstyne Ford, Inc., Vanderstyne Ford of Avon, I. 19990011 G Asif A. Sayeed. G Maxicare Health Plans, Inc. G Maxicare Health Plans of the Midwest, Inc. 19990015 G Kotio Manufacturing Co., Ltd. G Hella KG Hueck & Co. G HNA NAL Holding, Inc. 19990020 G Hoak Communications Partners, L.P. G Trinity plc. G Trinity 101 Limited, Trinity Holdings Inc. 19990021 G Group Maintenance America Corp. G William Witz. G Continental Electrical Construction. 19990024 G Cameron Ashley Building Products, Inc. G Ian and Linda Kramer. G IBEX Industries, Inc. 19990030 G Charles R. Wolf. G Robert Waxman, Inc. G Robert Waxman, Inc. 19990041 G George Rosenthal. G Time Warner Inc. G Warner Hollywood Studios. 19990042 G Mark Rosenthal. G Time Warner Inc. G Warner Hollywood Studios. 58392 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

FOR FURTHER INFORMATION CONTACT: which provides for grants to Indian grant made under this part to a tribal Sandra M. Peay or Parcellena P. tribal organizations representing organization for FY 1992 and for each Fielding, Contact Representatives, federally recognized Tribes for the subsequent fiscal year shall be not less Federal Trade Commission, Premerger provision of nutritional and supportive than the amount of the grant made Notification Office, Bureau of services to Indian elders. under this part to the tribal organization Competition, Room 303, Washington, The 1978 Amendments to the Older for FY 1991 as stated under section DC 20580, (202) 326–3100. Americans Act created title VI, Grants 614A(a) of the Act. If the funds for Indian Tribal Organizations. The By Direction of the Commission. appropriated to carry out this part in a purpose of this title is to promote the Benjamin I. Berman, fiscal year subsequent to FY 1991 delivery of supportive and nutritional exceed the funds appropriated to carry Acting Secretary. services for Indian elders that are out this part in FY 1991, then the [FR Doc. 98–29151 Filed 10–29–98; 8:45 am] comparable to services provided under amount of the grant (if any) made under BILLING CODE 6750±01±M title III of the Older Americans Act. this part to a tribal organization for the (Title III of the Older Americans Act, subsequent fiscal year shall be: (1) entitled ‘‘Grants for State and Increased by such amount as the DEPARTMENT OF HEALTH AND Community Programs on Aging’’ is the Assistant Secretary considers to be HUMAN SERVICES nationwide program of supportive and appropriate, in addition to the amount nutritional services which serves of any increase required by subsection Office of the Secretary persons over age 60 of all ethnic (a), so that the grant equals or more [Program Announcement 13655.911] groups.) closely approaches the amount of the In the Older Americans Act grant made under this part to the tribal Grants to Indian Tribal Organizations Amendments of 1987, the name of title organization for FY 1980; or (2) an for Supportive and Nutritional Services VI was changed to Grants for Native amount the Assistant Secretary for Older Indians Americans, and part B—Native considers to be sufficient if the tribal Hawaiian Programs—was added. organization did not receive a grant AGENCY: Administration on Aging Nutritional services and information under this part for either FY 1980 or FY (AoA), OS, HHS. and assistance services are required by 1991. ACTION: Announcement of availability of the Act. Nutritional services include Applications from current grantees funds and opportunity to apply under congregate meals and home-delivered who are a part of a consortium and wish the Older Americans Act, Title VI, meals. Supportive services include to leave the consortium will be treated Grants for Native Americans, Part A– information and assistance, as new grant applications. Successful Indian Program. transportation, chore services, and other new grant applications for both current supportive services which contribute to grantees who are leaving a consortium SUMMARY: The Administration on Aging the welfare of older Native Americans. will accept applications for funding in and tribal organizations who are not fiscal year (FY) 1999 under the Older 2. Eligibility of an Indian Tribal current grantees will be funded pending Americans Act, title VI, Grants for Organization or Indian Tribe to Receive availability of additional funds. Native Americans, part A–Indian a Grant Information on typical grant levels in Program, from all current title VI, part To be eligible to receive a grant, a FY 1998 is given below as a guide to A grantees, current grantees who wish tribal organization or Indian tribe must possible funding levels for Tribes to leave a consortium and apply as a meet the application requirements representing the following documented new grantee, and eligible federally contained in sections 612(a) and 612(b) numbers of Indian elders over age 60: recognized Indian tribal organizations of the Act, which are: ‘‘(1) the tribal Population range (number of Amounts of that are not now participating in title VI organization represents at least 50 older Indians age 60 years and awards in and would like to apply as a new individuals who are 60 years of age or over, represented by the tribal FY 1998 grantee. Successful applications from older; and (2) the tribal organization organization) (dollars) new grantees will be funded if funds demonstrates the ability to deliver permit. supportive services, including 50 to 100 ...... 57,180 nutritional services.’’ For purposes of 101 to 200 ...... 64,880 DATE: Applications must be received or 201 to 300 ...... 73,670 postmarked on or before January 28, title VI, part A, the terms ‘‘Indian tribe’’ 301 to 400 ...... 83,020 1999. and ‘‘tribal organization’’ have the same 401 to 500 ...... 91,810 meaning as in section 4 of the Indian ADDRESSES: See Appendix A. 501 to 1500 ...... 106,350 Self-Determination and Education 1501+ ...... 139,640 FOR FURTHER INFORMATION CONTACT: Assistance Act (25 U.S.C. 450b). M. Yvonne Jackson, Ph.D., Office for This announcement concerns all 4. Application Process American Indian, Alaskan Native, and federally recognized Indian tribal Native Hawaiian Programs, organizations, those currently Applicants should submit Administration on Aging, Department of participating in title VI, part A applications, describing their proposed Health and Human Services, Wilbur J. individually or as members of a plans for nutritional and supportive Cohen Federal Building, Room 4743, consortium and those that are not services for older Indians for project 330 Independence Avenue, SW, currently participating in title VI, part period April 1, 1999–March 31, 2002, as Washington, DC 20201, telephone (202) A. described in section 5 below, ‘‘Content 619–2713. of the Application.’’ SUPPLEMENTARY INFORMATION: 3. Available Funds A three year project period was Distribution of funds among tribal chosen in order to reduce the paperwork 1. Background and Program Purpose organizations is subject to the burden on the grantees. It is the intent The Administration on Aging (AoA) is availability of appropriations to carry of this agency to conduct on site responsible for administering title VI, out title VI, part A. As stated in section monitoring at least once during the part A of the Older Americans Act, 614A(b) of the Act, the amount of the three year project period. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58393

The Program Performance and delivering meals, and the estimated wholly or partly by title VI, part A Financial Status reports, due on a semi- number of persons to be served. The funds. The description should include annual basis, will be reviewed for nutrition services provided, either what supportive services will be compliance with the program directly or by way of a grant or contract, provided and how they will be regulations. Failure to submit the must be substantially in compliance provided. The approximate number of required reports during the project with the provisions of part C, title III, persons to be served by each service period may result in loss of future funds which include: should be stated. and possibly termination of the grant 1. Provide at least one hot or other Legal assistance and ombudsman within the project period. appropriate meal a day, 5 or more days services may be provided, but are not Thirty days prior to the end of each a week in a congregate setting, any required. However, if provided, they budget period within the three year additional meals which the recipient of should be reported as ‘‘Supportive project period grantees shall notify AoA a grant may elect to provide. A ‘‘meal’’, Services.’’ as to their desire to continue as a as used in section 307(a)(13), 308(b)(7), If a tribal organization elects to grantee. Failure to submit this 311(a)(4), 331(1), 336, 338(a)(1), 339, provide legal services, it must documentation within the required and 339A of the Act and § 1321.17, substantially comply with the timeframe may result in loss of grant § 1321.59 and § 1321.64, is a planned requirements in title 45 of the Code of funding. At the beginning of each event in a day at which a variety of Federal Regulations § 1321.71, and all budget period within the three year prepared foods are provided to an legal assistance providers must comply project period grantees will be notified individual. These meals shall comply fully with the requirements in of the funding level for the subsequent with the U.S. Dietary Guidelines for § 1321.71(d) through § 1321.71(k). year. Americans published by the Secretary of Transportation of persons to nutrition One original application, signed by the Department of Agriculture. sites or other places is to be considered the principal official of the Tribe, and Additionally, the meals must provide as a ‘‘Supportive Service.’’ two copies of the complete application, the nutrients specified in the current, (d) Coordination with title III. The including all attachments, must be daily Recommended Dietary application should provide a submitted to the Administration on Allowances, as established by the Food description of how title VI and title III Aging, Grants Management Division, and Nutrition Board of the National resources and services are to be Margaret Tolson, Director, 330 Research Council of the National coordinated within the title VI service Independence Avenue, SW, Academy of Sciences as specified in area, including information and Washington, DC 20201. Incomplete Section 339(2) unless the meal is a assistance service. applications and applications special meal provided to meet the postmarked after the closing date will health, religious, or ethnic (2) Evaluation Criteria not be considered for funding. considerations of eligible individuals. The application must discuss the 5. Content of the Application Snacks, partial meals, and second criteria to be used to evaluate the results helpings are not considered meals. The application must meet the criteria and successes of the program, based on 2. Provide at least one home delivered the objectives and results or benefits in sections 614(a) and (b) of the Act, and hot, cold, frozen, dried, canned, or title 45 of the Code of Federal expected indicated in Item A and B supplemental food (with a satisfactory above. It will also explain the Regulations, § 1326.19. The application storage life) meal per day, 5 or more may be presented in any format selected methodology that will be used to days a week, and any additional meals determine if the needs identified and by the tribal organization. Contact the which the recipient of a grant may elect AoA Regional Office in your geographic discussed are being met and if the to provide. The above definition of a results and benefits identified in Item B area if you have questions concerning meal also applies here. Thus, neither above are being achieved. the content of the application. The individual grocery items nor food application must include the following vouchers may be used in lieu of home D. Geographic Location information: delivered meals. The application must include an A. Objectives and Need for Assistance If no title VI, part A funds are to be appropriate narrative description of the used for nutrition services, the This section must include objectives, geographical area to be served and an application must state how such assurance that procedures will be expressed in measurable terms, which services are provided in other ways, and are related to the current supportive and adopted to ensure against duplicate how they are financed. services being provided to the same nutrition service needs of the elders to (b) Information and Assistance. recipients. A map of the designated be represented by the Tribal Information and assistance services are service area may be included in the Organization. This section must also required. They must be available for application. include a discussion of how the needs older Indians living in the title VI, part were evaluated. A service area and there should be a E. Additional Information description of what information and B. Results or Benefits Expected (1) Older Indians in the Title VI, Part A assistance services will be provided and Service Area The application should describe the how they will be provided. The results or benefits expected from each estimated number of individuals to be The law requires that a tribal service proposed. served should be stated. If no title VI, organization must represent at least 50 C. Approach part A funds are to be used for persons aged 60 years or over in order information and assistance services, the to be eligible for title VI funding. (1) Description and Method of Delivery application must state how such Therefore, the number of persons aged of Each Service services are provided in other ways, and 60 or over living in the proposed title (a) Nutrition. Nutrition services are how they are financed. VI service area must be stated in the required. There should be a description (c) Other Supportive Services. The application. The tribal organization may of the methods, facilities, and staff to be application must describe any other use Bureau of Statistics population used in preparing, serving, and supportive services to be provided figures, or may develop its own 58394 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices population statistics, but they must be the entire project period, April 1, 1999– Region II (DC, DE, MD, NY, NJ, PA, PR, VA, approved by the Bureau of Indian March 31, 2002. VI, WV) Affairs in order to establish eligibility, Copies of the title III and title VI Bob O’Connell, Bi-Regional Administrator, as required in section 614(b) of the current law and regulations, and of part 26 Federal Plaza, Room 38–102, New Older American Act, as amended. The 92, may be obtained from the Regional York, New York 10278, (212) 264–2976, FAX (212) 264–0114 amount of the grant is based on the Administrator for the Administration on number of Indians or Alaskan Natives Aging. (See appendix A) Region IV (AL, FL, GA, KY, MS, NC, SC, TN) aged 60 years or over in the proposed (4) Certification Forms John Diaz, Bi-Regional Administrator, 101 service area. Thus, the application Marietta Tower, Suite 1702, Atlanta, GA should include only the number of Certifications are required of the 30323, (404) 331–5900, FAX (404) 331– Indians and Alaskan Natives aged 60 applicant regarding (a) lobbying; (b) 2017 years or over in the proposed service debarment, suspension, and other Region V (IL, IN, MI, MN, OH, WI) area and not the total population census responsibility matters; and (c) drug-free of all tribal members, age 60 and above, Larry Brewster, Bi-Regional Administrator, workplace requirements. Please note 105 West Adams Street, 10th Floor, unless all the tribal members live in the that a duly authorized representative of Chicago, Illinois 60603, (312) 353–3141, proposed service area. If there is overlap the applicant organization must attest to FAX (312) 886–8533 between two or more title VI, part A the applicant’s compliance with these Region VI (AR, LA, OK, NM, TX) applicants, as stated under ‘‘Geographic certifications. Location’’, the eligible elders can only John Diaz, Bi-Regional Administrator, 1301 be counted once and included in one (5) Identifying Information Young Street, Room 736, Dallas, Texas application. The applicants are 75201, (214) 767–2971, FAX (214) 767– Applications must identify both the 2951 responsible for determining how the principal official of the tribal eligible elders will be counted. The organization, and the proposed title VI Region VII (IA, KS, MO, NE) same elder may not be counted by more program director: Name, Title, Address Larry Brewster, Bi-Regional Administrator, than one applicant. This must be stated including Zip Code, Telephone Number, 1150 Grand Avenue, suite 600, Kansas clearly in the application and signed by and, if available, the FAX Number and City, MIssouri 64106, (816) 374–6015, the principal official of the tribal E-mail address. The tribal organization’s FAX (816) 374–6020 organization. EIN (Employer Identification Number) Region VIII (CO, MT, ND, SD, UT, WY) As a separate matter, the regulations must also be included. Percy Devine, III, Bi-Regional Administrator, allow a Tribe to define, based on its own If the applicant tribal organization is 1961 Stout Street, Room 908, Federal criteria, who the Tribe will consider to a consortium, the applicant must list the Office Building, Denver, Colorado be an ‘‘older Indian’’ for purposes of federally recognized tribes which are 80294–3538, (303) 844–2951, FAX (303) eligibility to receive title VI services. If included. The tribal resolution from 844–2943 a Tribe selects a different definition of each tribe in the consortium must be Region IX (AS, AZ, CA, CNMI, GU, HI, NV, ‘‘older Indian’’ for service delivery, the included in the application. TTPI) application must state the age selected, (6) Closing Date for Application Percy Devine, III, Bi-Regional Administrator, and the number of Indians under age 60 50 United Nations Plaza, Room 455, San eligible to be served. All Tribes in a To be eligible for consideration, Francisco, California 94102, (415) 437– consortium must use the same age for applications must be received or 8780, FAX (415) 437–8782 ‘‘older Indian.’’ postmarked on or before January 28, Region X (AK, ID, OR, WA) (2) Resolution 1999. (Applicants are cautioned to Chisato Kawabori, Regional Administrator, request a legibly dated U.S. Postal Blanchard Plaza, MS-RX-33; Room 1202, The tribal organization representing a Service postmark, or to obtain a legibly federally recognized Tribe must submit 2201 Sixth Avenue, Seattle, Washington dated receipt from a commercial carrier 98121–1828, (206) 615–2298, FAX (206) an original copy of the Tribal council or the U.S. Postal Service. Private 615–2305 resolution authorizing participation in metered postmarks are not acceptable as Appendix B title VI, part A for the grant period April proof of timely mailing.) 1, 1999 to March 30, 2002. If the tribal Older Americans Act—Section 614(a)—No organization represents a consortium of (7) Action on Applications grant may be made under this part unless the more than one Tribe, a resolution is eligible tribal organization submits an Awards will be made by the Assistant required from each participating Tribe, application to the Assistant Secretary which Secretary for Aging. Funding decisions specifically authorizing representation meets such criteria as the Assistant Secretary will be announced as soon as possible. by the tribal organization for the may by regulation prescribe. Each such purpose of title VI, part A of the Older (Catalog of Federal Domestic Assistance application shall— Americans Act for the grant period Program #93.655 Grants to Indian Tribes and (1) Provide that the eligible tribal organization will evaluate the need for April 1, 1999 to March 31, 2002. Native Hawaiians. This Program Announcement is not subject to E.O. 12372.) supportive and nutrition services among (3) Program Assurances Dated: October 23, 1998. older Indians to be represented by the tribal organizations; Title VI, part A Program Assurances Jeanette C. Takamura, (2) Provide for the use of such methods of must be included in the application. Assistant Secretary for Aging. administration as are necessary for the proper and efficient administration of the program to The title VI, part A Program Assurances Appendix A are those provisions identified in be assisted; section 614(a) of the Older Americans Regional Offices (3) Provide that the tribal organization will make such reports in such form and Act, and in title 45 of the Code of Region I (CT, MA, ME, NH, RI, VT) containing such information, as the Assistant Federal Regulations § 1326.19(d), issued Bob O’Connell, Bi-Regional Administrator, Secretary may reasonably require, and August 31, 1988 (see appendix B). The John F. Kennedy Building, Room 2075, comply with such requirements as the tribal organization must state that it Boston, Massachusetts 02203, (617) 565– Assistant Secretary may impose to assure the agrees to abide by all the provisions for 1158, FAX (617) 565–4511 correctness of such reports; Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58395

(4) Provide for periodic evaluation of (6) The services provided under this part to determine violations of the federal or state activities and projects carried out under the will be coordinated, where applicable, with criminal drug statutes. application; services provided under title III of the Act. ‘‘Criminal drug statute’’ means a federal or (5) Establish objectives consistent with the non-federal criminal statute involving the purposes of this part toward which activities U.S. Department of Health and Human manufacture, distribution, dispensing, use, or under the application will be directed, Service possession of any controlled substance. identify obstacles to the attainment of such Certification Regarding Drug-Free ‘‘Employee’’ means the employee of a objectives, and indicate the manner in which Workplace Requirements Grantees Other grantee directly engaged in the performance the tribal organization proposes to overcome Than Individuals of work under a grant, including (i) all ‘‘in such obstacles; direct charge’’ employees; (ii) all ‘‘direct By signing and/or submitting this (6) Provide for establishing and charge’’ employees unless their impact or application or grant agreement, the grantee is maintaining information and assistance involvement is insignificant to the providing the certification set out below. services to assure that older Indians to be performance of the grant; and, (iii) temporary This certification is required by regulations served by the assistance made available personnel and consultants who are directly implementing the Drug-Free Workplace Act under this part will have reasonably engaged in the performance of work under of 1988, 45 CFR Part 76, Subpart F. The convenient access to such services; the grant and who are on the grantee’s regulations, published in the May 25, 1990 (7) Provide a preference for Indians aged 60 payroll. This definition does not include Federal Register, require certification by and older for full or part-time staff positions workers not on the payroll of the grantee grantees that they will maintain a drug-free whenever feasible; (e.g., volunteers, even if used to meet a workplace. The certification set out below is (8) Provide assistance that either directly or matching requirement; consultants or a material representation of fact upon which by way of grant or contract with appropriate independent contractors not on the grantee’s reliance will be placed when the Department entities nutrition services will be delivered to payroll or employees of subrecipients or of Health and Human Services (HHS) older Indians represented by the tribal subcontractors in covered workplaces). determines to award the grant. If it is later organization substantially in compliance The grantee certifies that it will or will determined that the grantee knowingly with the provisions of part C of title III, rendered a false certification, or otherwise continue to provide a drug-free workplace by: except that in any case in which the need for violates the requirements of the Drug-Free (a) Publishing a statement notifying nutritional services for older Indians Workplace Act, HHS, in addition to any other employees that the unlawful manufacture, represented by the tribal organization is remedies available to the Federal distribution, dispensing, possession or use of already met from other sources, the tribal Government, may take action authorized a controlled substance is prohibited in the organization may use the funds otherwise under the Drug-Free Workplace Act. False grantee’s workplace and specifying the required to be expended under this clause for certification or violation of the certification actions that will be taken against employees supportive services; shall be grounds for suspension of payments, for violation of such prohibition; (9) Contain assurance that the provision of suspension or termination of grants, or (b) Establishing an ongoing drug-free sections 307(a)(14)(A) (i) and (iii), government-wide suspension or debarment. awareness program to inform employees 307(a)(14)(B), and 307(a)(14)(C) will be Workplaces under grants, for grantees other about: complied with whenever the application than individuals, need not be identified on (1) The dangers of drug abuse in the contains provisions for the acquisition, the certification. If known, they may be workplace; (2) The grantee’s policy of alteration, or renovation of facilities to serve identified in the grant application. If the maintaining a drug-free workplace; (3) Any as multipurpose senior centers; grantee does not identify the workplaces at available drug counseling, rehabilitation, and (10) Provide that any legal or ombudsman the time of application, or upon award, if employee assistance programs, and, (4) The services made available to older Indians there is no application, the grantee must keep penalties that may be imposed upon represented by the tribal organization will be the identity of the workplace(s) on file in its employees for drug abuse violations substantially in compliance with the office and make the information available for occurring in the workplace; provisions of title III relating to the federal inspection. Failure to identify all (c) Making it a requirement that each furnishing of similar services; and known workplaces constitutes a violation of employee to be engaged in the performance (11) Provide satisfactory assurance that the grantee’s drug-free workplace of the grant be given a copy of the statement fiscal control and fund accounting requirements. required by paragraph (a); procedures will be adopted as may be Workplace identifications must include the (d) Notifying the employee in the statement necessary to assure proper disbursement of, actual address of buildings (or parts of required by paragraph (a) that, as a condition and accounting for, Federal funds paid under buildings) or other sites where work under of employment under the grant, the employee this part to the tribal organization, including the grant takes place. Categorical descriptions will: any funds paid by the tribal organization to may be used (e.g., all vehicles of a mass (1) Abide by the terms of the statement; a recipient of a grant or contract. transit authority or state highway department and, (2) Notify the employer in writing of his 45 CFR 1326.19 * * * The application while in operation, state employees in each or her conviction for a violation of a criminal shall provide for: (d) Assurances as local unemployment office, performers in drug statute occurring in the workplace no prescribed by the Assistant Secretary that: concert halls or radio studios). later than five calendar days after such (1) A tribal organization represents at least If the workplace identified to HHS changes conviction; 50 individuals who have attained 60 years of during the performance of the grant, the (e) Notifying the agency in writing, within age or older; grantee shall inform the agency of the ten calendar days after receiving notice under (2) A tribal organization shall comply with change(s), if it previously identified the subparagraph (d)(2) from an employee or all applicable State and local license and workplaces in question (see above). otherwise receiving actual notice of such safety requirements for the provision of those Definitions of terms in the conviction. Employers of convicted services; Nonprocurement Suspension and Debarment employees must provide notice, including (3) If a substantial number of the older common rule and Drug-Free Workplace position title, of every grant officer or other Indians residing in the service area are of common rule apply to this certification. designee on whose grant activity the limited English-speaking ability, the tribal Grantees’ attention is called, in particular, to convicted employee was working unless the organization shall utilize the services of the following definitions from these rules: federal agency has designated a central point workers who are fluent in the language ‘‘Controlled substance’’ means a controlled for the receipt of such notices. Notice shall spoken by a predominant number of older substance in Schedules I through V of the include the identification number(s) of each Indians; Controlled Substance Act (21 U.S.C. 812) and affected grant; (4) Procedures to ensure that all services as further defined by regulation (21 CFR (f) Taking one of the following actions, under this part are provided without use of 1308.11 through 1308.15). within 30 calendar days of receiving notice any means tests; ‘‘Conviction’’ means a finding of guilt under subparagraph (d)(2), with respect to (5) A tribal organization shall comply with (including a plea of nolo contendere) or any employee who is so convicted: all requirements set forth in § 1326.7 through imposition of sentence, or both, by any (1) Taking appropriate personnel action § 1326.17; and judicial body charged with the responsibility against such an employee, up to and 58396 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices including termination, consistent with the for this covered transaction. If necessary, the (2) If any funds other than federal requirements of the Rehabilitation Act of prospective participant shall submit an appropriated funds have been paid or will be 1973, as amended; or, (2) Requiring such explanation of why it cannot provide the paid to any person for influencing or employee to participate satisfactorily in a certification. The certification or explanation attempting to influence an officer or drug abuse assistance or rehabilitation will be considered in connection with the employee of any agency, a member of program approved for such purposes by a Department of Health and Human Services congress, an officer of employee of congress, federal, state, or local health, law (HHS) determination whether to enter into or an employee of a member of congress in enforcement, or other appropriate agency; this transaction. However, failure of the connection with this federal contract, grant, (g) Making a good faith effort to continue prospective primary participant to furnish a loan or cooperative agreement, the to maintain a drug-free workplace through certification or an explanation shall undersigned shall complete and submit implementation of paragraphs (a), (b), (c), (d), disqualify such person from participation in Standard Form-LLL, ‘‘Disclosure Form to (e) and (f). The grantee may insert in the this transaction. Report Lobbying,’’ in accordance with its space provided below the site(s) for the The prospective primary participant agrees instructions. performance of work done in connection that by submitting this proposal, it will (3) The undersigned shall require that the with the specific grant (use attachments, if include the clause entitled ‘‘Certification language of this certification be included in needed): Regarding Debarment, Suspension, the award documents for all subawards at all Place of Performance (Street Address, City, Ineligibility, and Voluntary Exclusion— tiers (including subcontracts, subgrants, and County, State, Zip Code) Lower Tier Covered Transactions’’, provided contracts under grants, loans, and lllllllllllllllllllll below, without modification in all lower tier cooperative agreements) and that all Check ll if there are workplaces on file covered transactions and in all solicitations subrecipients shall certify and disclose that are not identified here. Sections for lower tier covered actions. accordingly. 76.630(c) and (d)(2) and 76.635(a)(1) and (b) Certification Regarding Debarment, This certification is a material provide that a Federal agency may designate Suspension, Ineligibility and Voluntary representation of fact upon which reliance a central receipt point for state-wide and Exclusions—Lower Tier Covered was placed when this transaction was made state agency-wide certifications, and for Transactions (To be supplied to Lower Tier or entered into. Submission of this notification of criminal drug convictions. For Participants) certification is a prerequisite for making or the Department of Health and Human entering into this transaction imposed by Services, the central receipt point is: Grants By signing and submitting this lower tier section 1352, title 31, U.S. Code. Any person Management Division; 330 Independence proposal, the prospective lower tier who fails to file the required certification Avenue, SW, Room 4256–Cohen; participant, as defined in 45 CFR Part 76, shall be subject to a civil penalty of not less Washington, D.C. 20201 certifies to the best of its knowledge and that $10,000 and not more than $100,000 for Signature llllllllllllllll belief that it and its principals: each such failure. Date llllllllllllllllll (a) Are not presently debarred, suspended, lllllllllllllllllllll Title llllllllllllllllll proposed for debarment, declared ineligible, Organization Organization llllllllllllll or voluntarily excluded from participation in lllllllllllllllllllll DGMO Form #2 Revised May 1990 this transaction by any federal department or agency. Authorized Signature Title Date Certification Regarding Debarment, (b) Where the prospective lower tier Note: If Disclosure Forms are required, Suspension, and Other Responsibility participant is unable to certify to any of the please contact: Margaret A. Tolson, Director; Matters—Primary Covered Transactions above, such prospective participant shall Grants Management Division, 330 By signing and submitting this proposal, attach an explanation of this proposal. Independence Avenue, SW, Room 4256- the applicant, defined as the primary The prospective lower tier participant Cohen; Washington, DC 20201–0001. further agrees by submitting this proposal participant in accordance with 45 CFR Part [FR Doc. 98–29088 Filed 10–29–98; 8:45 am] 76, certifies to the best of its knowledge and that it will include this clause entitled BILLING CODE 4130±01±M belief that its principals involved: ‘‘Certification Regarding Debarment, (a) Are not presently debarred, suspended, Suspension, Ineligibility and Voluntary proposed for debarment, declared ineligible, Exclusions—Lower Tier Covered or voluntarily excluded from covered Transactions’’ without modification in all DEPARTMENT OF HEALTH AND transactions by any federal department or lower tier covered transactions and in all HUMAN SERVICES agency; solicitations for lower tier covered (b) Have not within a 3-year period transactions. Centers for Disease Control and Signature llllllllllllllll Prevention preceding this proposal been convicted of or llllllllllllllllll had a civil judgement rendered against the Date Title llllllllllllllllll Peer Review Meeting of the Draft principal for commission of fraud or a llllllllllllll criminal offense in connection with Organization Research Protocol of the Full obtaining, attempting to obtain, or Certification Regarding Lobbying Ensemble Fire Testing of Fire Fighters' performing a public (federal, state, or local) Protective Clothing and Equipment transaction or contract under a public Certification for Contracts, Grants, Loans, transaction; violation of federal or state And Cooperative Agreements The National Institute for antitrust statutes or commission of The undersigned certifies, to the best of his Occupational Safety and Health embezzlement, theft, forgery, bribery, or her knowledge and belief, that: (NIOSH) of the Centers for Disease falsification or destruction of records, making (1) No federal appropriated funds have Control and Prevention (CDC) false statements, or receiving stolen property; been paid or will be paid, by or on behalf of announces the following meeting. (c) Are not presently indicted or otherwise the undersigned, to any person for criminally or civilly charged by a government influencing or attempting to influence an Name: Peer Review meeting on the entity (federal, state or local) with officer or employee of any agency, a member NIOSH-funded study by the National commission of any of the offenses of congress, an officer or employee of Institute of Standards and Technology enumerated in paragraph (1)(b) of this congress, or an employee of a member of (NIST) entitled: ‘‘Full Ensemble Fire certification; and congress in connection with the awarding of Testing of Fire Fighters’ Protective (d) Have not within a 3-year period any federal contract, the making of any Clothing and Equipment.’’ preceding this application/proposal had one federal grant, the making of any federal loan, or more public transactions (federal, state, or the entering into of any cooperative Time and Date: 8 a.m.—5 p.m., local) terminated for cause or default. agreement, and the extension, continuation, December 2, 1998. The inability of a person to provide the renewal, amendment, or modification of any Location: National Institute of certification required above will not federal contract, grant, loan, or cooperative Standards and Technology, Lecture necessarily result in denial of participation agreement. Room D, Administration Building 101, Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58397

Building and Fire Research Laboratory, Dated: October 23, 1998. PRA (44 U.S.C. 3507), FDA has Gaithersburg, MD 20899–0001. Carolyn J. Russell, submitted the following proposed Status: Open to the public, limited Director, Management Analysis and Services collection of information to OMB for only by the space available. The meeting Office, Centers for Disease Control and review and clearance. Prevention (CDC). room accommodates approximately 50 [FR Doc. 98–29098 Filed 10–29–98; 8:45 am] Medical Devices; FDAMA Third-Party people. BILLING CODE 4160±19±P Review (OMB Control Number 0910– Purpose: To provide peer review of 0375—Extension) the draft research protocol of a study of Section 210 of FDAMA establishes a burn hazards associated with full DEPARTMENT OF HEALTH AND new section 523 of the Federal Food, ensemble fire fighters’ protective HUMAN SERVICES Drug, and Cosmetic Act (the act), clothing and equipment. Also, to Food and Drug Administration directing FDA to accredit persons in the exchange information among private sector to review certain government, Page 2 stakeholders, and [Docket No. 98N±0331] premarket applications and interested parties on the scientific, Agency Information Collection notifications. As with the Third-Party procedural, and related aspects of the Review Pilot Program previously study. Activities; Submission for OMB Review; Comment Request; Medical conducted by FDA, participation in this Participants will provide NIOSH with Devices; FDAMA Third-Party Review Third-Party Review Pilot Program by their individual advice and comments accredited persons is entirely voluntary. regarding the technical and scientific AGENCY: Food and Drug Administration, A third party wishing to participate will aspects of the study protocol, ‘‘Full HHS. submit a request for accreditation. Ensemble Fire Testing of Fire Fighters’ ACTION: Notice. Accredited third-party reviewers will Protective Clothing and Equipment.’’ have the ability to review a SUMMARY: The Food and Drug manufacturer’s 510(k) submission for Matters to be Discussed: The agenda Administration (FDA) is announcing selected devices. After reviewing a will include a review of the NIST that the proposed collection of submission, the reviewer will forward a research plan; request for field information listed below has been copy of the 510(k) submission, along experience and other information and submitted to the Office of Management with the reviewer’s documented review scientific input on the planned research and Budget (OMB) for review and and recommendation, to FDA. Third- topics; and scientific discussion on the clearance under the Paperwork party reviewers should maintain records types and usage of thermal sensors of Reduction Act of 1995 (PRA). of their 510(k) reviews and a copy of the relevance to exposure estimation. DATES: Submit written comments on the 510(k) for a reasonable period of time. Viewpoints and suggestions from collection of information by November This information collection will allow industry, labor, academia, other 30, 1998. FDA to implement the Accredited government agencies, and the public are ADDRESSES: Submit written comments Person Review Program established by invited. Written comments will also be on the collection of information to the FDAMA and improve the efficiency of considered. Office of Information and Regulatory 510(k) review for low- to moderate-risk Contact Person for Additional Affairs, OMB, New Executive Office devices. Bldg., 725 17th St. NW., rm. 10235, Information: Thomas K. Hodous, M.D., Description of Respondents: Washington, DC 20503, Attn: Desk Project Officer, Division of Safety Businesses or other for profit Officer for FDA. Research, NIOSH, CDC, M/S P–1172, organizations. FOR FURTHER INFORMATION CONTACT: 1095 Willowdale Road, Morgantown, Margaret R. Schlosburg, Office of In the Federal Register of August 4, West Virginia 26505–2888. Telephone Information Resources Management 1998 (63 FR 41575), the agency 304/285–5943, E-mail [email protected]. (HFA–250), Food and Drug requested comments on the proposed Copies of the draft protocol may be Administration, 5600 Fishers Lane, collections of information. No obtained by contacting Dr. Hodous. Rockville, MD 20857, 301–827–1223. significant comments were received. SUPPLEMENTARY INFORMATION: In FDA estimates the burden of this compliance with section 3507 of the collection of information as follows:

TABLE 1.ÐESTIMATED ANNUAL REPORTING BURDEN1

No. of Re- Item No. of sponses per Total Annual Hours per Total Hours Respondents Respondent Responses Respondent

Requests for accreditation 40 1 40 24 960 510(k) reviews conducted by accredited third parties 35 4 140 40 5,600 Total hours 6,560 1There are no capital costs or operating and maintenance costs associated with this collection of information. 58398 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

TABLE 2.ÐESTIMATED ANNUAL RECORDKEEPING BURDEN1

Annual Item No. of Frequency per Total Annual Hours per Total Hours Recordkeepers Recordkeeping Records Recordkeeper

510(k) reviews 35 4 140 10 1,4002 1There are no capital costs or operating and maintenance costs associated with this collection of information. 2Due to clerical error, the recordkeeping burden hours for 510(k) reviews that appeared in a notice issued in the FEDERAL REGISTER of August 4, 1998 (63 FR 41575), were incorrect. Table 2 of this document contains the correct estimates.

The burdens are explained as follows: DEPARTMENT OF HEALTH AND Program for the Twenty-first Century 1. Reporting HUMAN SERVICES (UME–21) initiative to develop and implement curricular change during the a. Requests for accreditation: Under Health Resources And Services clinical years. This project aims to bring the agency’s Third-Party Review Pilot Administration about change in the clinical phase of Program, the agency received 37 medical education so that medical applications for recognition as third- Agency Information Collection students are better prepared for party reviewers, of which the agency Activities: Proposed Collection: residency training and practice. The recognized 7. Under this expanded Comment Request program, the agency anticipates that it selected schools must institute specific In compliance with the requirement changes in their clinical education will not see a significant increase in the for opportunity for public comment on number of applicants. Therefore, the programs, including the addition of proposed data collection projects content related to clinical practice in a agency is estimating that it will receive (section 3506(c)(2)(A) of Title 44, United 40 applications. The agency anticipates managed care environment and the States Code, as amended by the introduction of primary care based that it will accredit 35 of the applicants Paperwork Reduction Act of 1995, Pub. clinical experiences that cut across the to conduct third-party reviews. L. 104–13), the Health Resources and b. 510(k) reviews conducted by generalist disciplines. UME–21 is Services Administration (HRSA) accredited third parties: In 18 months publishes periodic summaries of administered by the Bureau of Health under the Third-Party Review Pilot proposed projects being developed for Professions of the Health Resources and Program, FDA received only 22 510(k)’s submission to OMB under the Services Administration. The surveys that were requested and were eligible Paperwork Reduction Act of 1995. To are designed to: (1) Obtain the opinions for review by third parties. Because the request more information on the of graduating seniors regarding their new program is not as limited in time, proposed project or to obtain a copy of education in selected topics important and is expanded in scope, the agency the data collection plans and draft for practice in the changing health care anticipates that the number of 510(k)’s instruments, call the HRSA Reports environment, and (2) determine whether submitted for third-party review will Clearance Officer on (301) 443–1891. the physicians who supervise the increase. The agency anticipates that it Comments are invited on: (a) Whether graduatesduring their first year of will receive approximately 140 third- the proposed collection of information party review submissions annually, i.e., residency believe that these graduates is necessary for the proper performance approximately 4 annual reviews per possess appropriate knowledge, skills, of the functions of the agency, including each of the estimated 35 accredited and attitudes. whether the information shall have reviewers. The surveys are being conducted as practical utility; (b) the accuracy of the 2. Recordkeeping agency’s estimate of the burden of the part of a broader evaluation of the proposed collection of information; (c) overall UME–21 initiative. The study Third-party reviewers are required to population of students will consist of keep records of their review of each ways to enhance the quality, utility, and clarity of the information to be 2,400 seniors at the eight medical submission. The agency anticipates schools, evenly distributed between the approximately 140 annual submissions collected; and (d) ways to minimize the graduating classes of 1999 and 2000. of 510(k)’s for third-party review. The burden of the collection of information The study population of residency agency estimates that each third-party on respondents, including through the reviewer will require approximately 10 use of automated collection techniques program directors will consist of annual hours to maintain records of or other forms of information approximately 1,200 physicians in their reviews and reports. technology. residency programs throughout the country determined by the residency Proposed Project: Surveys to Assess the Dated: October 26, 1998. locations of the graduating seniors in Outcomes of Curricular Changes at William K. Hubbard, each year. Associate Commissioner for Policy Eight Medical Schools—NEW Coordination. In July, 1998, eight medical schools The estimated respondent burden is as [FR Doc. 98–29108 Filed 10–29–98; 8:45 am] were awarded federal funding under the follows: BILLING CODE 4160±01±F Undergraduate Medical Education

Responses Hours per Respondent Number of per response Total Burden respondents respondent (minutes) hours

Students ...... 2,400 1 7 280 Program Directors ...... 1,200 2 7 280 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58399

Responses Hours per Respondent Number of per response Total Burden respondents respondent (minutes) hours

3,600 ...... 560

Send comments to Susan G. Queen, publishes abstracts of information The Application for NHSC Ph.D., HRSA Reports Clearance Officer, collection requests under review by the Recruitment and Retention Assistance Room 14–33, Parklawn Building, 5600 Office of Management and Budget, in submitted by sites or clinicians requests Fishers Lane, Rockville, MD 20857. compliance with the Paperwork information on the practice site, Written comments should be received Reduction Act of 1995 (44 U.S.C. sponsoring agency, recruitment contact, within 60 days of this notice. Chapter 35). To request a copy of the staffing levels, service users, site’s 5- Dated: October 23, 1998. clearance requests submitted to OMB for year infant mortality or low birth rate Jane Harrison, review, call the HRSA Reports averages, and next nearest site. The Director, Division of Policy Review and Clearance Office on (301) 443–1129. information on the application is used Coordination. The following request has been for determining eligibility of sites and to [FR Doc. 98–29111 Filed 10–29–98; 8:45 am] submitted to the Office of Management verify the need for NHSC providers. BILLING CODE 4160±15±P and Budget for review under the Sites must submit applications annually Paperwork Reduction Act of 1995: or when they need a provider. Proposed Project: Application for NHSC DEPARTMENT OF HEALTH AND Estimates of annualized reporting Recruitment and Retention Assistance HUMAN SERVICES burden are as follows: (in Use Without Approval) Health Resources and Services The National Health Service Corps Administration (NHSC) of the HRSA’s Bureau of Agency Information Collection Primary Health Care assists underserved Activities: Submission for OMB communities through the development, Review; Comment Request recruitment, and retention of primary health care clinicians dedicated to Periodically, the Health Resources serving people in health professional and Services Administration (HRSA) shortage areas.

Responses Type of report Number of per Hours per Total burden respondents respondent response hour

Application ...... 1,000 1 .75 750

Written comments and SUMMARY: This Federal Register notice Government to resolve these matters. recommendations concerning the sets forth the OIG’s recently-issued Based on insights gained from a pilot proposed information collection should Provider Self-Disclosure Protocol. This program undertaken as part of be sent within 30 days of this notice to: Self-Disclosure Protocol offers health Operation Restore Trust, discussions Wendy A. Taylor, Human Resources care providers specific steps, including with the provider community and the and Housing Branch, Office of a detailed audit methodology, that may growing need for an effective disclosure Management and Budget, New be undertaken if they wish to work mechanism, the OIG has now developed Executive Office Building, Room 10235, openly and cooperatively with the OIG a more open-ended process, or protocol, Washington, DC 20503. to efficiently quantify a particular for making a disclosure and allowing a Dated: October 23, 1998. problem and, ultimately, promote a health care provider to cooperative work Jane Harrison, higher level of ethical and lawful with the OIG. Unlike the previous conduct throughout the health care voluntary disclosure pilot programs, Director, Division of Policy Review and Coordination. industry. this self-disclosure protocol gives detailed guidance to the provider on [FR Doc. 98–29112 Filed 10–29–98; 8:45 am] FOR FURTHER INFORMATION CONTACT: Ted what information is appropriate to BILLING CODE 4160±15±P Acosta, Office of Counsel to the Inspector General, (202) 619–2078. include as part of an investigative report and how to conduct an audit of the SUPPLEMENTARY INFORMATION: The OIG matter, while setting no limitations on DEPARTMENT OF HEALTH AND has long stressed the role of the health the conditions under which a health HUMAN SERVICES care industry in combating health care care provider may disclose information fraud, and believes that health care to the OIG. Office of Inspector General providers can play a cooperative role in identifying and voluntarily disclosing A reprint of the OIG’s Provider Self- Publication of the OIG's Provider Self- program abuses. The OIG’s use of Disclosure Protocol follows. Disclosure Protocol voluntary self-disclosure programs, for Provider Self-disclosure Protocol example, is premised on a belief that AGENCY: Office of Inspector General I. Introduction (OIG), HHS. health care providers must be willing to police themselves, correct underlying The Office of Inspector General (OIG) ACTION: Notice. problems and work with the 58400 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Health and Human Services (HHS) providing viable opportunities for self- conducts a national review of a relies heavily upon the health care disclosure. By establishing this Protocol, particular billing practice, providers industry to help identify and resolve the OIG renews its commitment to should consider the option of matters that adversely affect the Federal promote an environment of openness conducting a limited assessment of the health care programs (as defined in 42 and cooperation. The Protocol has no practice under OIG review, rather than U.S.C. 1320a–7b(f)). The OIG believes rigid requirements or limitations. incur the expense of a comprehensive that, as participants in the Federal Rather, it provides the OIG’s views on audit. In such cases, an audit that health care programs, health care what are the appropriate elements of an conforms to the Protocol’s guidelines providers have an ethical and legal duty effective investigative and audit may be appropriate only in instances to ensure the integrity of their dealings working plan to address instances of where a preliminary assessment with these programs. This duty includes non-compliance. Providers that follow suggests the provider has in fact an obligation to take measures, such as the Protocol expedite the OIG’s engaged in the practices under OIG instituting a compliance program, to verification process and thus diminish scrutiny. detect and prevent fraudulent, abusive the time it takes before the matter can II. The Provider Self-Disclosure Protocol and wasteful activities. It also be formally resolved. Failure to conform encompasses the need to implement to each element of the Protocol is not Unlike the earlier pilot program, there specific procedures and mechanisms to necessarily fatal to the provider’s are no pre-disclosure requirements, examine and resolve instances of non- disclosure, but will likely delay the applications for admission or compliance with program requirements. resolution of the matter. preliminary qualifying characteristics Whether as a result of voluntary self- The OIG’s principal purpose in that must be met. The Provider Self- assessment or in response to external producing the Protocol is to provide Disclosure Protocol is open to all health forces, health care providers must be guidance to health care providers that care providers, whether individuals or prepared to investigate such instances, decide voluntarily to disclose entities, and is not limited to any assess the potential losses suffered by irregularities in their dealings with the particular industry, medical specialty or the Federal health care programs, and Federal health care programs. Because a type of service. While no written make full disclosure to the appropriate provider’s disclosure can involve agreement setting out the terms of the authorities. To encourage providers to anything from a simple error to outright self-assessment will be required, the make voluntary disclosures, the OIG fraud, the OIG cannot reasonably make OIG expects the commitment of the issues this Provider Self-Disclosure firm commitments as to how a health care provider to disclose specific Protocol (Protocol). particular disclosure will be resolved or information and engage in specific self- The concept of voluntary self- the specific benefit that will enure to the evaluative steps relating to the disclosed disclosure is not new to the OIG. For disclosing entity. In our experience, matter. In contrast to the pilot many years, the OIG has worked however, opening lines of disclosure program, the fact that a informally with providers and suppliers communication with, and making full disclosing health care provider is that came forward to cooperate with disclosure to, the investigative agency at already subject to Government inquiry OIG to resolve billing, marketing or an early stage generally benefits the (including investigations, audits or quality of care problems. In 1995, as individual or company. In short, the routine oversight activities) will not part of the Operation Restore Trust Protocol can help a health care provider automatically preclude a disclosure. (ORT) initiative, HHS and the initiate with the OIG a dialogue directed The disclosure, however, must be made Department of Justice (DOJ) announced at resolving its potential liabilities. in good faith. The OIG will not continue a pilot voluntary disclosure program, The decision to follow the OIG’s to work with a provider that attempts to which embraced OIG’s longstanding suggested Protocol rests exclusively circumvent an ongoing inquiry or fails policy favoring voluntary self- with the provider. While the OIG can to fully cooperate in the self-disclosure disclosure. The demonstration program offer only limited guidance on what is process. In short, the OIG will continue was developed in coordination with inherently a case-specific judgement, its practice of working with providers representatives of the OIG, DOJ, various there are several considerations that that are the subject of an investigation United States Attorneys’ Offices, the should influence the decision. First, a or audit, provided that the collaboration Federal Bureau of Investigation and the provider that uncovers an ongoing fraud does not interfere with the efficient and Health Care Financing Administration scheme within its organization effective resolution of the inquiry. (HCFA). The pilot program was limited immediately should contact the OIG, The Provider Self-Disclosure Protocol to five States (New York, Florida, but should not follow the Protocol’s is intended to facilitate the resolution of Illinois, Texas and California) and four suggested steps to investigate or only matters that, in the provider’s different types of providers (home quantify the scope of the problem. If the reasonable assessment, are potentially health agencies, skilled nursing provider follows the Protocol in this violative of Federal criminal, civil or facilities, durable medical equipment type of situation without prior administrative laws. Matters exclusively suppliers, and hospice providers). It consultation with the OIG, there is a involving overpayments or errors that gave those qualifying entities a formal substantial risk that the Government’s do not suggest that violations of law mechanism for disclosing and seeking subsequent investigation will be have occurred should be brought the resolution of matters relating to the compromised. directly to the attention of the entity Medicare and Medicaid programs. In Second, the OIG anticipates that a (e.g., a contractor such as a carrier or an 1997, the pilot voluntary disclosure provider will apply the Protocol’s intermediary) that processes claims and program was concluded. While there suggested steps only after an initial issues payment on behalf of the was limited participation in the pilot, assessment substantiates there is a Government agency responsible for the the OIG gained valuable insight into the problem with non-compliance with particular Federal health care program variables influencing the decision to program requirements. The initial (e.g., HCFA for matters involving make a disclosure to the Government. identification of potential risk areas Medicare). The program contractors are The OIG believes it must continue should be less intensive and need not responsible for processing the refund encouraging the health care industry to conform to the Protocol’s suggested and will review the circumstances conduct voluntary self-evaluations and procedures. Similarly, when the OIG surrounding the initial overpayment. If Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58401 the contractor concludes that the pertinent relationships and the names IV. Internal Investigation Guidelines overpayment raises concerns about the and addresses of any related entities, as All disclosures to the OIG under the integrity of the provider, the matter may well as any affected corporate divisions, Provider Self-Disclosure Protocol be referred to the OIG. Accordingly, the departments or branches. Additionally, should include a report based on an provider’s initial decision of where to provide the name and address of the internal investigation conducted by the refer a matter involving non-compliance disclosing entity’s designated health care provider. While a provider with program requirements should be representative for purposes of the is free to discuss its preliminary made carefully. voluntary disclosure. findings with the OIG prior to The OIG is not bound by any findings 2. Indicate whether the provider has completion of its investigation, the made by the disclosing provider under knowledge that the matter is under matter cannot be resolved until a the Provider Self-Disclosure Protocol current inquiry by a Government agency comprehensive assessment has been and is not obligated to resolve the or contractor. If the provider has completed pursuant to the following matter in any particular manner. knowledge of a pending inquiry, guidelines: Nevertheless, the OIG will work closely identify any such Government entity or with providers that structure their individual representatives involved. A. Nature and Extent of the Improper or disclosures in accordance with the The provider must also disclose Illegal Practice Provider Self-Disclosure Protocol in an whether it is under investigation or A voluntary disclosure report should effort to coordinate any investigatory other inquiry for any other matters demonstrate that a full examination of steps or other activities necessary to relating to a Federal health care program the practice has been conducted. The reach an effective and prompt and provide similar information relating report should contain a written resolution. It is important to note that, to those other matters. narrative that— upon review of the provider’s disclosure 3. A full description of the nature of 1. Identifies the potential causes of submission and/or reports, the OIG may the matter being disclosed, including the incident or practice (e.g., intentional conclude that the disclosed matter the type of claim, transaction or other conduct, lack of internal controls, warrants a referral to DOJ for conduct giving rise to the matter, the circumvention of corporate procedures consideration under its civil and/or names of entities and individuals or Government regulations); criminal authorities. Alternatively, the believed to be implicated and an 2. Describes the incident or practice provider may request the participation explanation of their roles in the matter, in detail, including how the incident or of a representative of DOJ or a local and the relevant periods involved. practice arose and continued; United States Attorney’s Office in 4. The type of health care provider 3. Identifies the division, settlement discussions in order to implicated and any provider billing departments, branches or related resolve potential liability under the numbers associated with the matter entities involved and/or affected; False Claims Act or other laws. In either disclosed. Include the Federal health 4. Identifies the impact on, and risks case, the OIG will report on the care programs affected, including to, health, safety, or quality of care provider’s involvement and level of Government contractors such as posed by the matter disclosed, with cooperation throughout the disclosure carriers, intermediaries and other third- sufficient information to allow the OIG process to any other Government party payers. to assess the immediacy of the impact agencies affected by the disclosed 5. The reasons why the disclosing and risks, the steps that should be taken matter. provider believes that a violation of to address them, as well as the measures III. Voluntary Disclosure Submission Federal criminal, civil or administrative taken by the disclosing entity; law may have occurred. 5. Delineates the period during which The disclosing provider will be the incident or practice occurred; expected to make a submission as 6. A certification by the health care 6. Identifies the corporate officials, follows. provider or, in the case of an entity, an authorized representative on behalf of employees or agents who knew of, A. Effective Disclosure the disclosing entity stating that, to the encouraged, or participated in, the The disclosure must be made in best of the individual’s knowledge, the incident or practice and any individuals writing and must be submitted to the submission contains truthful who may have been involved in Assistant Inspector General for information and is based on a good faith detecting the matter; Investigative Operations, Office of effort to bring the matter to the 7. Identifies the corporate officials, Inspector General, Department of Health Government’s attention for the purpose employees or agents who should have and Human Services, 330 Independence of resolving any potential liabilities to known of, but failed to detect, the Avenue, SW, Cohen Building, Room the Government. incident or practice based on their job responsibilities; and 5409, Washington, DC 20201. C. Substantive Information Submissions by telecopier, facsimile or 8. Estimates the monetary impact of other electronic media will not be As part of its participation in the the incident or practice upon the accepted. disclosure process, the disclosing health Federal health care programs, pursuant care provider will be expected to to the Self-Assessment Guidelines B. Basic Information conduct an internal investigation and a below. The submission should include the self-assessment, and then report its B. Discovery and Response to the following— findings to the OIG. The internal review Matter 1. The name, address, provider may occur after the initial disclosure of The internal investigation report identification number(s) and tax the matter. The OIG will generally agree, should relate the circumstances under identification number(s) of the for a reasonable period of time, to forego which the disclosed matter was disclosing health care provider. If the an investigation of the matter if the discovered and fully document the provider is an entity that is owned, provider agrees that it will conduct the measures taken upon discovery to controlled or is otherwise part of a review in accordance with the Internal address the problem and prevent future system or network, include a Investigation Guidelines and the Self- abuses. In this regard, the report description or diagram describing the Assessment Guidelines set forth below. should— 58402 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

1. Describe how the incident or Revenue Service) in connection with the recommendation to DOJ for resolution practice was identified, and the origin of disclosed matter. of the provider’s False Claims Act or the information that led to its discovery. C. The internal investigation report other liability. Among the issues that 2. Describe the entity’s efforts to must include a certification by the should be addressed in the plan are the investigate and document the incident health care provider, or in the case of an following— or practice (e.g., use of internal or entity an authorized representative on 1. Review Objective—There should be external legal, audit or consultative behalf of the disclosing health care a statement clearly articulating the resources). provider, indicating that, to the best of objective of the review and the review 3. Describe in detail the chronology of the individual’s knowledge, the internal procedure or combination of procedures the investigative steps taken in investigation report contains truthful applied to achieve the objective. connection with the entity’s internal information and is based on a good faith 2. Review Population—The plan inquiry into the disclosed matter effort to assist the OIG in its inquiry and should identify the population, which is including the following— verification of the disclosed matter. the group about which information is needed. In addition, there should be an (a) A list of all individuals V. Self-Assessment Guidelines interviewed, including each explanation of the methodology used to To estimate the monetary impact of individual’s business address and develop the population and the basis for the disclosed matter, the health care telephone number, and their positions this determination. provider also should conduct an and titles in the relevant entities during 3. Sources of Data—The plan should internal financial assessment and both the relevant period and at the time provide a full description of the source prepare a report of its findings. This the disclosure is being made. For all of the information upon which the self-assessment may be performed at the individuals interviewed, provide the review will be based, including the legal same time as the internal investigation, dates of those interviews and the subject or other standards to be applied, the or commenced after the scope of the matter of each interview, as well as sources of payment data and the non-compliance with program summaries of the interview. The health documents that will be relied upon (e.g., requirements has been established. In care provider will be responsible for employment contracts, rental either case, the OIG will verify a advising the individual to be agreements, etc.). provider’s calculation of Federal health interviewed that the information the 4. Personnel Qualifications—The plan care program losses and it is strongly individual provides may, in turn, be should identify the names and titles of recommended that, at a minimum, the provided to the OIG. Additionally, those individuals involved in any aspect review conform to the following include a list of those individuals who of the self-assessment, including guidelines. statisticians, accountants, auditors, refused to be interviewed and provide A. Approach the reasons cited; consultants and medical reviewers, and The self-assessment should consist of describe their qualifications. (b) A description of files, documents, a review of either—(1) all of the claims and records reviewed with sufficient affected by the disclosed matter for the C. Sample Elements particularity to allow their retrieval, if relevant period; or (2) a statistically If the provider, in consultation with necessary; and valid sample of the claims that can be the OIG, determines that the financial (c) A summary of auditing activity projected to the population of claims review will be based upon a sample, the undertaken and a summary of the affected by the matter for the relevant work plan should also include the documents relied upon in support of the period. This determination should be sampling plan as follows— estimation of losses. These documents based on the size of the population 1. Sampling Unit—The plan should and information must accompany the believed to be implicated, the variance define the sampling unit, which is any report, unless the calculation of losses is of characteristics to be reviewed, the of the designated elements that undertaken pursuant to the Self- cost of the self-assessment, the available comprise the population of interest. Assessment Guidelines, which contain resources, the estimated duration of the 2. Sampling Frame—The plan should specific reporting requirements. review, and other factors as appropriate. identify the sampling frame, which is 4. Describe the actions by the health the totality of the sampling units from B. Basic Information care provider to stop the inappropriate which the sample will be selected. In conduct. Regardless of which of these two addition, the plan should document 5. Describe any related health care approaches is used, the disclosing how the audit population differs from businesses affected by the inappropriate provider should submit to the OIG a the sampling frame and what effect this conduct in which the health care work plan describing the self- difference has on conclusions reached provider is involved, all efforts by the assessment process. The OIG will as a result of the audit. health care provider to prevent a review the proposal and, where 3. Sample Size—The size of the recurrence of the incident or practice in appropriate, provide comments on the sample must be determined through the the affected division as well as in any plan in a timely manner. At its option, use of a probe sample. Accordingly, the related health care entities (e.g., new the OIG may choose to carry out any plan should include a description of accounting or internal control necessary activities at any stage of the both the probe sample and the full procedures, increased internal audit review to verify that the process is sample. At a minimum, the full sample efforts, increased supervision by higher undertaken correctly and to validate the must be designed to generate an management or through training). review findings. While the OIG is not estimate with a ninety (90) percent level 6. Describe any disciplinary action obligated to accept the results of a of confidence and a precision of twenty- taken against corporate officials, provider’s self-assessment, findings five (25) percent. The probe sample employees and agents as a result of the based upon procedures which conform must contain at least thirty (30) sample disclosed matter. to the Protocol will be given substantial units and cannot be used as part of the 7. Describe appropriate notices, if weight in determining any program full sample. applicable, provided to other overpayments. In addition, the OIG will 4. Random Numbers—Both the probe Government agencies, (e.g., Securities use the validated provider self- sample and the sample must be selected and Exchange Commission and Internal assessment report in preparing a through random numbers. The source of Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58403 the random numbers used must be review. In preparing the report, enough without the OIG’s prior consent. If the shown in the sampling plans. The OIG details must be provided to clearly OIG consents, the disclosing provider strongly recommends the use of its indicate what estimates are reported. will be required to agree in writing that Office of Audit Services’ Statistical the acceptance of the payment does not D. Certification Sampling Software, also known as constitute the Government’s agreement ‘‘RAT-STATS,’’ which is currently Upon completion of the self- as to the amount of losses suffered by available free of charge through the assessment, the disclosing health care the programs as a result of the disclosed ‘‘internet’’ at ‘‘www.hhs.gov/progorg/ provider, or in the case of an entity its matter, and does not affect in any oas/ratstat.html’’. authorized representative, must submit manner the Government’s ability to 5. Sample Design—Unless the to the OIG a certification stating that, to pursue criminal, civil or administrative disclosing provider demonstrates the the best of the individual’s knowledge, remedies or to obtain additional fines, need to use a different sample design, the report contains truthful information damages or penalties for the matters the self-assessment should use simple and is based on a good faith effort to disclosed. random sampling. If necessitated, the assist OIG in its inquiry and verification provider may use stratified or multistage of the disclosed matter. VIII. Cooperation and Removal from the Provider Self-Disclosure Protocol sampling. Details about the strata, stages VI. OIG’s Verification and clusters should be included in the The disclosing entity’s diligent and Upon receipt of a health care description of the audit plan. good faith cooperation throughout the provider’s disclosure submission, the 6. Estimate of Review Time per entire process is essential. Accordingly, OIG will begin its verification of the Sample Item—The plan should estimate the OIG expects to receive documents disclosure information. The extent of the time expended to locate the sample and information from the entity that the OIG’s verification effort will depend, items and the staff hours expended to relate to the disclosed matter without in large part, upon the quality and review a sample item. the need to resort to compulsory 7. Characteristics Measure by the thoroughness of the internal methods. If a provider fails to work in Sample—The sampling plan should investigative and self-assessment good faith with the OIG to resolve the identify the characteristics used for reports. Matters uncovered during the disclosed matter, that lack of testing each sample item. For example, verification process, which are outside cooperation will be considered an in a sample drawn to estimate the value of the scope of the matter disclosed to aggravating factor when the OIG of overpayments due to duplicate the OIG, may be treated as new matters assesses the appropriate resolution of payments, the characteristics under outside the Provider Self-Disclosure the matter. Similarly, the intentional consideration are the conditions that Protocol. submission of false or otherwise must exist for a sample item to be a To facilitate the OIG’s verification and untruthful information, as well as the duplicate. The amount of the duplicate validation processes, the OIG must have intentional omission of relevant payment is the measurement of the access to all audit work papers and information, will be referred to DOJ or overpayment. The sampling plan must other supporting documents without the other Federal agencies and could, in also contain the decision rules for assertion of privileges or limitations on itself, result in criminal and/or civil determining whether a sample item the information produced. In the normal sanctions, as well as exclusion from entirely meets the criterion for having course of verification, the OIG will not participation in the Federal health care characteristics or only partially meets request production of written programs. the criterion. communications subject to the attorney- 8. Missing Sample Items—The client privilege. There may be Dated: October 21, 1998. sampling plan must include a documents or other materials, however, June Gibbs Brown, discussion of how missing sample items that may be covered by the work Inspector General. were handled and the rationale. product doctrine, but which the OIG [FR Doc. 98–29064 Filed 10–29–98; 8:45 am] 9. Other Evidence—Although sample believes are critical to resolving the BILLING CODE 4150±04±P results should stand on their own in disclosure. The OIG is prepared to terms of validity, sample results may be discuss with provider’s counsel ways to combined with other evidence in gain access to the underlying DEPARTMENT OF HEALTH AND arriving at specific conclusions. If information without the need to waive HUMAN SERVICES appropriate, indicate what other the protections provided by an substantiating or corroborating evidence appropriately asserted claim of National Institutes of Health was developed. privilege. 10. Estimation Methodology—Because National Cancer Institute: the general purpose of the review is to VII. Payments Opportunities for Cooperative estimate the monetary losses to the Because of the need to verify the Research and Development Federal health care programs, the information provided by a disclosing Agreements (CRADAs) for the Joint methodology to be used must be health provider, the OIG will not accept Evaluation and Development of variables sampling using the difference payments of presumed overpayments Methods to Generate and Expand In- estimator. To estimate the amount determined by the health care provider Vitro Modified Dendritic Cell implicated in the disclosed matter, the prior to the completion of the OIG’s Populations in Order to Elicit provider must use the mean point inquiry. However, the provider is Phenotype Specific Immune estimate. The statistical estimates must encouraged to place the overpayment Responses be reported using a ninety (90) percent amount in an interest-bearing escrow confidence level. The use of RAT- account to minimize further losses. The NCI is looking for CRADA STATS to calculate the estimates is While the matter is under OIG inquiry, Collaborators to jointly develop this strongly recommended. the disclosing provider must refrain dendritic cell immunology technology. 11. Reporting Results—The sampling from making payment relating to the AGENCY: National Cancer Institute, plan should indicate how the results disclosed matter to the Federal health National Institutes of Health, PHS, will be reported at the conclusion of the care programs or their contractors DHHS. 58404 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

ACTION: Notice for CRADA Frederick Cancer Research & be outlined in the CRADA opportunities. Development Center, phone: 301–846– Collaborator’s proposal. 1491; FAX: 301–846–6022. 5. The willingness to commit best SUMMARY: Pursuant to the Federal EFFECTIVE DATE: Confidential CRADA effort and demonstrated resources to the Technology Transfer Act of 1986 (FTTA, research, development and 15 U.S.C. 3710; and Executive Order statements of interest describing the proposed research, preferably one page commercialization of this technology. 12591 of April 10, 1987, as amended by 6. The demonstration of expertise in the National Technology Transfer and or less, must be submitted to NCI on or before December 29, 1998. Guidelines the commercial development, Advancement Act of 1995), the National production, marketing and sales of Cancer Institute (NCI) of the National for preparing full CRADA proposals will be communicated shortly thereafter to products related to this area of Institutes of Health (NIH) of the Public technology. Health Service (PHS) of the Department all respondents who have been selected on the basis of mutual scientific interest. 7. The willingness to cooperate with of Health and Human Services (DHHS) the National Cancer Institute in the SUPPLEMENTARY INFORMATION: seeks Cooperative Research and timely publication of research results. Development Agreements (CRADAs) Technology Available 8. The agreement to be bound by the with pharmaceutical or biotechnology appropriate DHHS regulations relating The Immunotherapy Laboratory of the companies to evaluate and develop to human subjects, and all PHS policies NCI Clinical Services Program at the methods to generate, expand and relating to the use and care of laboratory Frederick Center Research and modify dendritic cells to act in an animals. Development Center has expertise in the immunologically specific manner. The 9. The willingness to accept the legal following technological areas: Collaboration will focus on the provisions and language of the CRADA • Experience generating frequent, development and evaluation of with only minor modifications, if any. large dendritic cell (DC) preparations. conditions for specific These provisions govern the licensing of • Experience generating in excess of immunomodulatory maneuvers focused patent rights to CRADA inventions. on induction of Th1 and Tc1 biased 80 DC preparations, from both normal immune responses by dendritic cells. donors and cancer patients. Dated October 21, 1998. Additionally, the collaboration will • Well established, extensive systems Kathleen Sybert, include the characterization of human for functional and phenotypic Acting Director, Technology Development & dendritic cell phenotypic subsets evaluation of dendritic cell preparations Commercialization Branch National Cancer including the generation of subset and their responses to various immune Institute National Institutes of Health. specific reagents. These research efforts mediators. [FR Doc. 98–29074 Filed 10–29–98; 8:45 am] would be directed by our evolving • Access to Good Manufacturing BILLING CODE 4140±01±M understanding of dendritic cell biology Practice (GMP) monoclonal antibody which includes both the production facility. characterization of cytokine expression • Established human tumor antigen DEPARTMENT OF HEALTH AND by dendritic cells (production and systems for final functional evaluations HUMAN SERVICES regulation of production) and the of immune response. National Institutes of Health characterization of dendritic cell NCI’s Dendritic Cell Patents and responses to both known and as yet Patent Applications: Government-Owned Inventions; uncharacterized cytokines. 1. A Method and Compositions for Availability for Licensing Any CRADA for the biomedical use of Making Dentritic Cells from Expanded this technology will be considered. The Populations of Monocytes and for AGENCY: National Institutes of Health, CRADAs would have an expected Activating T Cells, filed in the United Public Health Service, DHHS. duration of one (1) to five (5) years. The States Patent and Trademark Office May ACTION: Notice. goals of the CRADAs include the rapid 21, 1997. publication of research results and The role of the National Cancer SUMMARY: The inventions listed below timely commercialization of products, Institute in this CRADA will include, are owned by agencies of the U.S. diagnostics and treatments that result but not be limited to: Government and are available for from the research. The CRADA 1. Providing intellectual, scientific, licensing in the U.S. in accordance with Collaborators will have an option to and technical expertise and experience 35 U.S.C. 207 to achieve expeditious negotiate the terms of an exclusive or to the research project. commercialization of results of nonexclusive commercialization license 2. Providing the Collaborator with federally-funded research and to subject inventions arising under the data from in-vitro and in-vivo studies. development. Foreign patent CRADAs which are the subject of the 3. Planning research studies and applications are filed on selected CRADA Research Plan. interpreting research results. inventions to extend market coverage ADDRESSES: Statements of interest, 4. Publishing research results. for companies and may also be available proposals and questions about this The role of the CRADA Collaborator for licensing. CRADA opportunity may be addressed may include, but not be limited to: ADDRESSES: Licensing information and to Gary Cuchural, Technology 1. Providing significant intellectual, copies of the U.S. patent applications Development & Commercialization scientific, and technical expertise or listed below may be obtained by writing Branch, National Cancer Institute- experience to the research project. to the indicated licensing contact at the Frederick Cancer Research & 2. Planning research studies and Office of Technology Transfer, National Development Center, Fairview Center, interpreting research results. Institutes of Health, 6011 Executive Room 502, Frederick, MD 21701 (phone: 3. Providing technical expertise and/ Boulevard, Suite 325, Rockville, 301–846–5465, fax: 301–846–6820). or financial support for (e.g. facilities, Maryland 20852–3804; telephone: 301/ Scientific inquiries may be addressed to personnel and expertise) CRADA related 496–7057; fax: 301/402–0220. A signed Dr. Edward Nelson, Immunotherapy Government activities. Confidential Disclosure Agreement will Laboratory, NCI Clinical Services 4. Accomplishing objectives be required to receive copies of the Program, National Cancer Institute- according to an appropriate timetable to patent applications. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58405

Cannabinoids As Neuroprotectants specifically reactive to a soluble CD97 α The meeting will be closed to the A Hampson, J Axelrod, M Grimaldi subunit. Further, it should be noted that public in accordance with the (NIMH) these compositions and methods have provisions set forth in sections DHHS Reference Nos. E–287–97/0 filed in vitro utility in the construction of 552b(c)(4) and 552(b)(c)(6), Title 5 21 Apr 98 and E–287–97/1 filed 10 proteins and subsequences thereof for U.S.C., as amended. The grant Aug 98 the construction of antibodies, and applications and the discussions could Licensing Contact: Stephen Finley, 301/ nucleic acids and subsequences thereof disclose confidential trade secrets or 496–7735 ext. 215 for use as probes. commercial property such as patentable material, and personal information This technology describes the Genetic Polymorphisms Of Interleukin- concerning individuals associated with neuroprotective properties of 1 Alpha And Beta Associated With the grant applications, the disclosure of cannabidiol (CBD), 2-[3-Methyl-6-(1- Early Onset Periodontitis methylethenyl)-2-cyclohexen-1y1]-5- which would constitute a clearly SR Diehl, HA Schenkein, YF Wang pentyl-1,3-benzenediol. Cannabidiol is a unwarranted invasion of personal (NIDR) privacy. neuroprotective cannabinoid that does Serial No. 09/035,220 filed 05 Mar 97 not possess the psychoactive qualities Licensing Contact: Dennis Penn, 301/ Name of Committee: National Institute of which have previously hampered the 496–7056 ext. 211 Diabetes and Digestive and Kidney Diseases development of cannabinoid-based Special Emphasis Panel. Periodontal disease occurs in 10–20% Date: December 7–9, 1998. therapeutics. Cannabidiol is an effective of adults, and constitutes a major cause blood-brain barrier permeable Time: December 7, 1998, 7:30 PM to of tooth loss. About 0.5% of U.S. Adjournment. antioxidant, that is more potent than adolescents between the ages of 14 to 17 Agenda: To review and evaluate grant either tocopherol or ascorbate. As years old (about 70,000) have localized applications. reported in PNAS 95, 8268–73 (July early onset periodontitis and 0.1% Place: Durham Hilton, 3800 Hillsborough 1998), CBD can protect neurons from (17,000) have the more destructive form Road, Durham, NC 27705. both glutamate and free radical induced known as generalized early onset Contact Person: FRANCISCO O. CALVO, PHD, Chief, S.E.P. Section, Chief, Special toxicity. It is believed that CBD may periodontitis. Both types of early onset present a viable alternative for treatment Emphasis Panel, Review Branch, DEA, periodontitis often lead to tooth loss NIDDK, Natcher Building, Room 6AS–37E, of ischemia or physical traumas. This before the age of 20. Extrapolation of technology is currently available for National Institutes of Health, Bethesda, MD these figures up to age 35 leads to 20892–6600, (301) 594–8897. either licensing or collaborative efforts estimates of early onset periodontitis under a Cooperative Research and (Catalogue of Federal Domestic Assistance having a major impact on the dental Program Nos. 93.847, Diabetes, Development Agreement (CRADA). health of 400,000 individuals in the U.S. Endocrinology and Metabolic Research; Methods and Compositions for population. Discovery of genetic 93.848, Digestive Diseases and Nutrition Inhibiting Inflammation and polymorphisms at the interleukin 1 Research; 93.849, Kidney Diseases, Urology Angiogenesis alpha and 1 beta genes significantly and Hematology Research, National Institutes of Health, HHS) K Kelly (NCI) associated with disease risk allows genetic testing to be used to predict Dated: October 26, 1998. PCT/US97/19772 filed 24 Oct 97 LaVerne Y. Stringfield, (claiming priority of USSN 60/ disease prior to onset. This can be used Committee Management Officer, NIH. 027,871 filed 25 Oct 96) to target clinical efforts for disease Licensing Contact: Charles Maynard, prevention to those individuals at [FR Doc. 98–29067 Filed 10–29–98; 8:45 am] 301/496–7735 ext. 243 greatest risk. The genetic test can also BILLING CODE 4140±01±M The invention provides compositions justify more aggressive therapeutic and methods directed to isolated α treatments for individuals already affected by the early onset periodontitis DEPARTMENT OF HEALTH AND subunits of the 7TM protein CD97. HUMAN SERVICES CD97 is a heterodimer existing in three who, based on their genetic profile, are predicted to exhibit very rapid disease isoforms, namely three forms of α National Institutes of Health subunit and one invariant β subunit. progression. The invention provides compositions Dated: October 24, 1998. National Institute of Dental Research; and methods for detecting a subunit of Jack Spiegel, Notice of Closed Meetings CD97, a T-cell protein which is Director, Division of Technology Development upregulated in activated T-cells and is and Transfer, Office of Technology Transfer. Pursuant to section 10(d) of the involved in the onset and maintenance [FR Doc. 98–29072 Filed 10–29–98; 8:45 am] Federal Advisory Committee Act, as of inflammation and angiogenesis. The BILLING CODE 4140±01±M amended (5 U.S.C. Appendix 2), notice invention provides an isolated protein is hereby given of the following comprising a soluble CD97 α subunit, meetings. and an isolated nucleic acid encoding a DEPARTMENT OF HEALTH AND The meetings will be closed to the soluble CD97 α subunit protein. The HUMAN SERVICES public in accordance with the invention also provides methods for provisions set forth in sections identifying compounds which inhibit National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., α soluble CD97 subunit expression. The National Institute of Diabetes and as amended. The grant applications and invention may be used to inhibit Digestive and Kidney Diseases; Notice the discussions could disclose angiogenesis associated with chronic of Closed Meeting confidential trade secrets or commercial inflammation in a mammal by property such as patentable material, administering a therapeutically effective Pursuant to section 10(d) of the and personal information concerning amount of a CD97 antagonist. Another Federal Advisory Committee Act, as individuals associated with the grant application includes determining the amended (5 U.S.C. Appendix 2), notice applications, the disclosure of which degree of inflammation at a site in a is hereby given of the following would constitute a clearly unwarranted mammal with an antibody composition meeting. invasion of personal privacy. 58406 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Name of Committee: National Institute of property such as patentable material, property such as patentable material, Dental Research Special Emphasis Panel 99– and personal information concerning and personal information concerning 02, RFA DE97–002, P60s. individuals associated with the grant individuals associated with the grant Date: November 18–19, 1998. applications, the disclosure of which applications, the disclosure of which Time: 8:30 am to 5:00 pm. Agenda: To review and evaluate grant would constitute a clearly unwarranted would constitute a clearly unwarranted applications. invasion of personal privacy. invasion of personal privacy. Place: Hyatt Dulles, Dulles Corner Blvd., Name of Committee: National Institute of Name of Committee: National Institute of Herndon, VA 20171. Mental Health Special Emphasis Panel. Arthritis and Musculoskeletal and Skin Contact Person: YONG A. SHIN, PHD, Date: November 23, 1998. Diseases Special Emphasis Panel, NIAMS Scientific Review Administrator, 4500 Center Time: 2:00 PM to 3:30 PM. Research Trial. Drive, Natcher Building, Rm. 4AN44F, Agenda: To review and evaluate grant Date: November 5, 1998. National Institutes of Health, Bethesda, MD applications. Time: 8:00 AM to 5:00 PM. 20892, (301) 594–2372. Place: Parklawn Building—Room 9C–26, Agenda: To review and evaluate grant Name of Committee: National Institute of 5600 Fishers Lane, Rockville, MD 20857, applications. Dental Research Special Emphasis Panel 99– (Telephone Conference call). Place: Hyatt Regency Bethesda, One 08, Centers of Discovery. Contact Person: Victoria S. Levin, MSW, Bethesda Metro Center, Bethesda, MD 20814. Date: December 7–8, 1998. Scientific Review Administrator, Division of Contact Person: Melody Maryland, NIAMS, Time: 8:30 am to 5:00 pm. Extramural Activities, National Institute of 45 Center Drive Rm. 5AS 25 U, Bethesda, MD Agenda: To review and evaluate grant Mental Health, NIH, Parklawn Building, 5600 20892. applications. Fishers Lane, Room 9C–26, Rockville, MD This notice is being published less than 15 Place: Hotel Edgewater, 2411 Alaskan Way, 20857, 301–443–6470. days prior to the meeting due to the timing Seattle, WA 98121. Name of Committee: National Institute of limitations imposed by the review and Contact Person: H. George Hausch, PHD, Mental Health Special Emphasis Panel. funding cycle. Chief, Grants Review Section, 4500 Center Date: December 3, 1998. Name of Committee: National Institute of Drive, Natcher Building, Rm. 4AN44F, Time: 9:00 AM to 7:00 PM. Arthritis and Musculoskeletal and Skin National Institutes of Health, Bethesda, MD Agenda: To review and evaluate grant Diseases Special Emphasis Panel, NIAMS 20892, (301) 594–2372. applications. SDRC Review. Name of Committee: National Institute of Place: One Washington Circle, 1 Date: November 16–17, 1998. Dental Research Special Emphasis Panel 99– Washington Circle, NW., Washington, DC Time: 8:30 AM to 5:00 PM. 13, P01 Review. 20037. Agenda: To review and evaluate grant Date: December 9–10, 1998. Contact Person: Ron Schoenfeld, PHD, applications. Time: 8:30 am to 5:00 pm. Scientific Review Administrator, Division of Place: Bethesda Holiday Inn, Bethesda, MD Agenda: To review and evaluate grant Extramural Activities, National Institute of 20017. applications. Mental Health, NIH, Parklawn Building, 5600 Contact Person: Melody Maryland, NIAMS, Place: Hotel Edgewater, 2411 Alaskan Way, Fishers Lane, Room 9–101, Rockville, MD 45 Center Drive, Rm. 5AS 25U, Bethesda, MD Seattle, WA 98121. 20857, 301–443–3936. 20892. Contact Person: H. George Hausch, PHD, (Catalogue of Federal Domestic Assistance Name of Committee: National Institute of Chief, Grants Review Section, 4500 Center Program Nos. 93.242, Mental Health Research Arthritis and Musculoskeletal and Skin Drive, Natcher Building, Rm. 4AN44F, Grants; 93.281, Scientist Development Diseases Special Emphasis Panel, NIAMS National Institutes of Health, Bethesda, MD Award, Scientist Development Award for 004–CCMD SEP. 20892, (301) 594–2372. Clinicians, and Research Scientist Award; Date: November 18–19, 1998. (Catalogue of Federal Domestic Assistance 93.282, Mental Health National Research Time: 8:30 AM to 5:00 PM. Program Nos. 93.121, Oral Diseases and Service Awards for Research Training, Agenda: To review and evaluate grant Disorders Research, National Institutes of National Institutes of Health, HHS) applications. Place: Bethesda Holiday Inn, 8120 Health, HHS) Dated: October 26, 1998. Wisconsin Avenue, Bethesda, MD 20852. Dated: October 26, 1998. LaVerne Y. Stringfield, Contact Person: Melody Maryland, NIAMS, LaVerne Y. Stringfield, Committee Management Officer, NIH. 45 Center Drive, Rm. 5AS 25U, Bethesda, MD Committee Management Officer, NIH. [FR Doc. 98–29069 Filed 10–29–98; 8:45 am] 20892. [FR Doc. 98–29068 Filed 10–29–98; 8:45 am] BILLING CODE 4140±01±M (Catalogue of Federal Domestic Assistance BILLING CODE 4140±01±M Program Nos. 93.846, Arthritis, Musculoskeletal and Skin Diseases Research, DEPARTMENT OF HEALTH AND National Institutes of Health, HHS) DEPARTMENT OF HEALTH AND HUMAN SERVICES Dated: October 26, 1998. HUMAN SERVICES LaVerne Y. Stringfield, National Institutes of Health Committee Management Officer, NIH. National Institutes of Health [FR Doc. 98–29070 Filed 10–29–98; 8:45 am] National Institute of Arthritis and National Institute of Mental Health; Musculoskeletal and Skin Diseases; BILLING CODE 4140±70±M Notice of Closed Meetings Notice of Closed Meetings Pursuant to section 10(d) of the Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Federal Advisory Committee Act, as HUMAN SERVICES amended (5 U.S.C. Appendix 2), notice amended (5 U.S.C. Appendix 2), notice is hereby given of the following is hereby given of the following National Institutes of Health meetings. meetings. Center for Scientific Review; Notice of The meetings will be closed to the The meetings will be closed to the Closed Meetings public in accordance with the public in accordance with the provisions set forth in sections provisions set forth in sections Pursuant to section 10(d) of the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal Advisory Committee Act, as as amended. The grant applications and as amended. The grant applications and amended (5 U.S.C. Appendix 2), notice the discussions could disclose the discussions could disclose is hereby given of the following confidential trade secrets or commercial confidential trade secrets or commercial meetings. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58407

The meetings will be closed to the Agenda: To review and evaluate grant Place: Holiday Inn Georgetown, 2101 public in accordance with the applications. Wisconsin Avenue, N.W., Washington, DC provisions set forth in sections Place: Ramada Inn, 1775 Rockville Pike, 20007. Rockville, MD 20852. Contact Person: Syed M. Quadri, PHD, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Scientific Review Administrator, Center for as amended. The grant applications and Contact Person: Houston Baker, PHD, Scientific Review Administrator, Center for Scientific Review, National Institutes of the discussions could disclose Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4144, confidential trade secrets or commercial Health, 6701 Rockledge Drive, Room 5128, MSC 7804, Bethesda, MD 20892, (301) 435– property such as patentable material, MSC 7854, Bethesda, MD 20892–7854, (301) 1211. and personal information concerning 435–1175. This notice is being published less than 15 individuals associated with the grant This notice is being published less than 15 days prior to the meeting due to the timing applications, the disclosure of which days prior to the meeting due to the timing limitations imposed by the review and funding cycle. would constitute a clearly unwarranted limitations imposed by the review and funding cycle. Name of Committee: Center for Scientific invasion of personal privacy. Review Special Emphasis Panel. Name of Committee: Center for Scientific Name of Committee: Center for Scientific Date: November 2, 1998. Review Special Emphasis Panel. Review Special Emphasis Panel. Time: 1:00 PM to 2:00 PM. Date: November 1–3, 1998. Date: November 2–3, 1998. Agenda: To review and evaluate grant Time: 8:30 AM to 5:00 PM. Time: 8:00 AM to 11:30 AM. applications. Agenda: To review and evaluate grant Agenda: To review and evaluate grant Place: NIH, Rockledge 2, Bethesda, MD applications. applications. 20892, (Telephone Conference Call). Place: Loews Summit New York Hotel, Place: Gaithersburg Hilton Hotel, 620 Perry Contact Person: Ramesh K. Nayak, PHD, New York, NY 10022. Parkway, Gaithersburg, MD 20877. Scientific Review Administrator, Center for Contact Person: Marjam G. Behar, PHD, Contact Person: Nabeeh Mourad, PHD, Scientific Review, National Institutes of Scientific Review Administrator, Center for Scientific Review Administrator, Center for Health, 6701 Rockledge Drive, Room 5146, Scientific Review, National Institutes of Scientific Review, National Institutes of MSC 7840, Bethesda, MD 20892, (301) 435– Health, 6701 Rockledge Drive, Room 4178, Health, 6701 Rockledge Drive, Room 4212, 1026. MSC 7806, Bethesda, MD 20892, (301) 435– MSC 7812, Bethesda, MD 20892, (301) 435– This notice is being published less than 15 1180. 1222. days prior to the meeting due to the timing This notice is being published less than 15 This notice is being published less than 15 limitations imposed by the review and funding cycle. days prior to the meeting due to the timing days prior to the meeting due to the timing limitations imposed by the review and limitations imposed by the review and Name of Committee: Center for Scientific funding cycle. funding cycle. Review Special Emphasis Panel ZRG1–SSS– 8 (52). Name of Committee: Center for Scientific Name of Committee: Center for Scientific Date: November 2, 1998. Review Special Emphasis Panel. Review Special Emphasis Panel. Time: 2:00 PM to 4:00 PM. Date: November 1, 1998. Date: November 2–3, 1998. Time: 8:00 AM to 5:00 PM. Agenda: To review and evaluate grant Time: 7:30 PM to 10:00 PM. applications. Agenda: To review and evaluate grant Agenda: To review and evaluate grant applications. Place: NIH, Rockledge 2, Bethesda, MD applications. 20892, (Telephone Conference Call) . Place: St. James Hotel, Washington, DC Place: St. James Hotel, Washington, DC 20037. Contact Person: Nadarajen Vydelingum, 20037. PHD, Scientific Review Administrator, Contact Person: Bruce Maurer, PHD, Contact Person: Bruce Maurer, PHD, Scientific Review Administrator, Center for Special Study Section-8, Center for Scientific Scientific Review Administrator, Center for Review, National Institutes of Health, 6701 Scientific Review, National Institutes of Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5108, Rockledge Drive, MSC 7854, Rm 5122, Health, 6701 Rockledge Drive, Room 5108, Bethesda, MD 20892, (301) 435–1176. MSC 7852, Bethesda, MD 20892, (301) 435– MSC 7852, Bethesda, MD 20892, (301) 435– 1167. This notice is being published less than 15 1167. days prior to the meeting due to the timing This notice is being published less than 15 This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and days prior to the meeting due to the timing funding cycle. limitations imposed by the review and limitations imposed by the review and Name of Committee: Center for Scientific funding cycle. funding cycle. Review Special Emphasis Panel. Name of Committee: Center for Scientific Name of Committee: Health Promotion and Date: November 2, 1998. Review Special Emphasis Panel. Disease Prevention Initial Review Group, Time: 2:00 PM to 3:00 PM. Date: November 2–3, 1998. Epidemiology and Disease Control Agenda: To review and evaluate grant Time: 8:30 AM to 6:00 PM. Subcommittee 2. applications. Date: November 2–4, 1998. Agenda: To review and evaluate grant Place: NIH, Rockledge 2, Bethesda, MD Time: 8:00 AM to 5:00 PM. applications. 20892, (Telephone Conference Call). Agenda: To review and evaluate grant Place: Holiday Inn, 5520 Wisconsin Ave, Contact Person: Ramesh K. Nayak, PHD, applications. Chevy Chase, MD 20815. Scientific Review Administrator, Center for Place: Holiday Inn Old Town Alexandria, Contact Person: Gloria B. Levin, PHD, Scientific Review, National Institutes of Alexandria, VA 22314. Scientific Review Administrator, Center for Health, 6701 Rockledge Drive, Room 5146, Contact Person: H. Mac Stiles, DDS, PHD, Scientific Review, National Institutes of MSC 7840, Bethesda, MD 20892, (301) 435– MPH, Scientific Review Administrator, Health, 6701 Rockledge Drive, Room 5206, 1026. Center for Scientific Review, National MSC 7848, Bethesda, MD 20892, (301) 435– This notice is being published less than 15 Institutes of Health, 6701 Rockledge Drive, 1017. days prior to the meeting due to the timing Room 4108, MSC 7816, Bethesda, MD 20892, This notice is being published less than 15 limitations imposed by the review and 301–435–1785. days prior to the meeting due to the timing funding cycle. This notice is being published less than 15 limitations imposed by the review and Name of Committee: Center for Scientific days prior to the meeting due to the timing funding cycle. Review Special Emphasis Panel. limitations imposed by the review and Name of Committee: Center for Scientific Date: November 2, 1998. funding cycle. Review Special Emphasis Panel. Time: 12:30 PM to 2:00 PM. Name of Committee: Center for Scientific Date: November 2, 1998. Agenda: To review and evaluate grant Review Special Emphasis Panel. Time: 8:30 AM to 5:30 PM. applications. Date: November 2–3, 1998. Agenda: To review and evaluate grant Place: NIH, Rockledge 2, Bethesda, MD Time: 8:00 AM to 5:00 PM. applications. 20892. 58408 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Contact Person: Deniel B. Berch, PHD, Review, National Institutes of Health, 6701 Scientific Review, National Institutes of Scientific Review Administrator, Center for Rockledge Drive, Room 4106, MSC 7814, Health, 6701 Rockledge Drive, Room 4120, Scientific Review, National Institutes of Bethesda, MD 20892, (301) 435–1786. MSC 7818, Bethesda, MD 20892, (301) 435– Health, 6701 Rockledge Drive, Room 5204, This notice is being published less than 15 1016, [email protected]. MSC 7848, Bethesda, MD 20892, (301) 435– days prior to the meeting due to the timing This notice is being published less than 15 1256. limitations imposed by the review and days prior to the meeting due to the timing This notice is being published less than 15 funding cycle. limitations imposed by the review and days prior to the meeting due to the timing Name of Committee: Cardiovascular funding cycle. limitations imposed by the review and Sciences Initial Review Group, Pharmacology Name of Committee: Center for Scientific funding cycle. Study Section. Review Special Emphasis Panel. Name of Committee: Center for Scientific Date: November 5–6, 1998. Date: November 6, 1998. Review Special Emphasis Panel, ZRG1 Time: 8:00 AM to 5:00 PM. Time: 8:00 AM to 6:00 PM. AARR–4 (01). Agenda: To review and evaluate grant Agenda: To review and evaluate grant Date: November 3–4, 1998. applications. applications. Time: 7:00 PM to 5:00 PM. Place: Hyatt Regency Hotel, One Bethesda Place: Double Tree Hotel, 1750 Rockville Agenda: To review and evaluate grant Metro Center, Bethesda, MD 20814. Pike, Rockville, MD 20852. applications. Contact Person: Jeanne N. Ketley, PHD, Contact Person: Gopa Rakhit, PHD, Place: Holiday Inn Chevy Chase, 5520 Scientific Review Administrator, Center for Scientific Review Administrator, Center for Wisconsin Avenue, Chevy Chase, MD 20815. Scientific Review, National Institutes of Scientific Review, National Institutes of Contact Person: Mohindar Poonian, PHD, Health, 6701 Rockledge Drive, Room 4103, Health, 6701 Rockledge Drive, Room 4154, Scientific Review Administrator, Center for MSC 7814, Bethesda, MD 20892, (301) 435– MSC 7806, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of 1789. 1721 Health, 6701 Rockledge Drive, Room 5110, This notice is being published less than 15 This notice is being published less than 15 MSC 7852, Bethesda, MD 20892, (301) 435– days prior to the meeting due to the timing days prior to the meeting due to the timing 1168. limitations imposed by the review and limitations imposed by the review and This notice is being published less than 15 funding cycle. funding cycle. days prior to the meeting due to the timing Name of Committee: Cell Development and Name of Committee: Center for Scientific limitations imposed by the review and Function Initial Review Group, Biological Review Special Emphasis Panel. funding cycle. Sciences Subcommittee 2. Date: November 6, 1998. Name of Committee: Center for Scientific Date: November 5–6, 1998. Time: 8:30 AM to 5:00 PM. Review Special Emphasis Panel (ZRG1 SSS– Time: 8:00 AM to 4:00 PM. Agenda: To review and evaluate grant Z). Agenda: To review and evaluate grant applications. Date: November 4–5, 1998. applications. Place: Double Tree Hotel, 1750 Rockville Time: 8:00 AM to 5:00 PM. Place: Georgetown Holiday Inn, Pike, Rockville, MD 20852. Agenda: To review and evaluate grant Washington, DC 20007. Contact Person: Betty Hayden, PHD, applications. Contact Person: Anthony Carter, PHD, Scientific Review Administrator, Center for Place: Ramada Inn, Rockville, MD 20852. Scientific Review Administrator, Center for Scientific Review, National Institutes of Contact Person: Ron Manning, PHD, Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4206, Scientific Review Administrator, Center for Health, 6701 Rockledge Drive, Room 5142, MSC 7812, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of MSC 7840, Bethesda, MD 20892, (301) 435– 1223. Health, 6701 Rockledge Drive, Room 4158, 1024. This notice is being published less than 15 MSC 7806, Bethesda, MD 20892, (301) 435– This notice is being published less than 15 days prior to the meeting due to the timing 1723. days prior to the meeting due to the timing limitations imposed by the review and This notice is being published less than 15 limitations imposed by the review and funding cycle. days prior to the meeting due to the timing funding cycle. Name of Committee: Center for Scientific limitations imposed by the review and Name of Committee: Musculoskeletal and Review Special Emphasis Panel, ZRG1–SSS– funding cycle. Dental Science Initial Review Group, General X (11). Name of Committee: Center for Scientific Medicine A Subcommittee 1. Date: November 9, 1998. Review Special Emphasis Panel. Date: November 5–6, 1998. Time: 8:00 AM to 4:00 PM. Date: November 4, 1998. Time: 8:30 AM to 5:00 PM. Agenda: To review and evaluate grant Time: 8:00 AM to 5:00 PM. Agenda: To review and evaluate grant applications. Agenda: To review and evaluate grant applications. Place: Holiday Inn Central, 1501 Rhode applications. Place: San Diego Paradise Point Resort, Island Ave, NW., Washington, DC 20005. Place: Double Tree Hotel, 1750 Rockville 1404 West Vacation Road, San Diego, CA Contact Person: Lee Rosen, PHD, Scientific Pike, Rockville, MD 20852. 92109–7905. Review Administrator, Center for Scientific Contact Person: Daniel B. Berch, PHD, Contact Person: Harold M. Davidson, PHD, Review, National Institutes of Health, 6701 Scientific Review Administrator, Center for Scientific Review Administrator, Center for Rockledge Drive, Room 5116, MSC 7854, Scientific Review, National Institutes of Scientific Review, National Institutes of Bethesda, MD 20892, (301) 435–1171. Health, 6701 Rockledge Drive, Room 5204, Health, 6701 Rockledge Drive, Room 4216, Name of Committee: Center for Scientific MSC 7848, Bethesda, MD 20892. (301) 435– MSC 7814, Bethesda, MD 20892, (301) 435– Review Special Emphasis Panel, ZRG1 1256. 1776. AARR–03 01. This notice is being published less than 15 This notice is being published less than 15 Date: November 9, 1998. days prior to the meeting due to the timing days prior to the meeting due to the timing Time: 8:30 AM to 5:30 PM. limitations imposed by the review and limitations imposed by the review and Agenda: To review and evaluate grant funding cycle. funding cycle. applications. Name of Committee: Musculoskeletal and Name of Committee: Center for Scientific Place: Double Tree Hotel, 1750 Rockville Dental Sciences Initial Review Group, Review Special Emphasis Panel. Pike, Rockville, MD 20852. Geriatrics and Rehabilitation Medicine. Date: November 5, 1998. Contact Person: Mohindar Poonian, PHD, Date: November 4–5, 1998. Time: 1:00 PM to 3:30 PM. Scientific Review Administrator, Center for Time: 8:30 AM to 5:00 PM. Agenda: To review and evaluate grant Scientific Review, National Institutes of Agenda: To review and evaluate grant applications. Health, 6701 Rockledge Drive, Room 5110 applications. Place: Washington National Airport Hilton, MSC 7852, Bethesda, MD 20892, (301) 435– Place: Georgetown Inn, 1310 Wisconsin 2399 Jefferson Davis Highway, Arlington, VA 1168. Ave., N.W., Washington, DC 20007. 22202. Name of Committee: Center for Scientific Contact Person: Jo Pelham, Scientific Contact Person: Everett E. Sinnett, PHD, Review Special Emphasis Panel ZRG1– Review Administrator, Center for Scientific Scientific Review Administrator, Center for AARR–7(01). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58409

Date: November 10–11, 1998. the grant of a limited field of use public inspection, and, to the extent Time: 8:30 AM To 5:00 PM. exclusive world-wide license to practice permitted by law will not be released Agenda: To review and evaluate grant the invention embodied in U.S. Patent under the Freedom of Information Act, applications. No. 5,562,905, issued October 8, 1996 5 U.S.C. 552. Place: Holiday Inn Chevy Chase, 5520 Wisconsin Avenue, Chevy Chase, MD 20815. (U.S. Patent Application Serial No. 07/ Dated: October 21, 1998. Contact Person: Mary Clare Walker, PHD, 324,027, filed March 20, 1989), entitled Jack Spiegel, ‘‘Human Immunodeficiency Virus (HIV) Scientific Review Administrator, Center for Director, Division of Technology, Scientific Review, National Institutes of ENV-Coded Peptide Capable of Eliciting Development and Transfer, Office of Health, 6701 Rockledge Drive, Room 5104, HIV-Inhibiting Antibodies in Mammals’’ Technology Transfer. MSC 7852, Bethesda, MD 20892, (301) 435– and non-U.S. patent applications [FR Doc. 98–29073 Filed 10–29–98; 8:45 am] 1165. claiming priority to U.S. patent BILLING CODE 4140±01±M Name of Committee: Center for Scientific application SN 07/148,692 entitled Review Special Emphasis Panel, ZRZ– ‘‘Synthetic Antigen Evoking Anti-HIV AARR–03(01). Response’’ to BioQuest, Inc. of Houston, DEPARTMENT OF HEALTH AND Date: November 10, 1998. Texas, U.S.A. These patent rights are Time: 8:30 AM to 4:00 PM. HUMAN SERVICES Agenda: To review and evaluate grant either assigned or exclusively licensed applications. to the United States of America. Public Health Service Place: Double Tree Hotel, 1750 Rockville DATES: Only written comments and/or Pike, Rockville, MD 20852. application for a license which are National Institute of Environmental Contact Person: Mohindar Poonian, PHD, received by the NIH Office of Health Sciences, NIH; National Scientific Review Administrator, Center for Technology Transfer on or before Toxicology Program Scientific Review, National Institutes of January 28, 1999 will be considered. Health, 6701 Rockledge Drive, Room 5110, Notice of workshop on ‘‘Scientific MSC 7852, Bethesda, MD 20892, (301) 435– ADDRESSES: Requests for a copy of this Issues Relevant to Assessment of Health 1168. issued patent or applications, inquiries, Effects from Exposure to Name of Committee: Center for Scientific comments, and other materials relating Methylmercury’’, November 18–20, Review Special Emphasis Panel ZRG–1 to the contemplated license should be 1998, at the Brownestone Hotel in AARR–2–(02). directed to: Carol A. Salata, Technology Raleigh, North Carolina. Date: November 11, 1998. Licensing Specialist, Office of Time: 7:30 PM to 10:00 PM. Technology Transfer, National Institutes Background Place: Hyatt Regency Bethesda, One of Health, 6011 Executive Boulevard, At the request of the White House Bethesda Metro Center, Bethesda, MD 20814. Suite 325, Rockville, MD 20852–3804; Office of Science and Technology an Contact Person: Sami A. Mayyasi, PHD, Telephone: (301) 496–7735 ext 232; Scientific Review Administrator, Center for interagency committee has organized Scientific Review, National Institutes of Facsimile: (301) 402–0220; E-Mail: the subject workshop to discuss and Health, 6710 Rockledge Drive, Room 5112, [email protected]. evaluate the major epidemiological MSC 7852, Bethesda, MD 20892, (301) 435– SUPPLEMENTARY INFORMATION: The patent studies associating methylmercury 1169. describes the use of a chemically exposure with an array of (Catalogue of Federal Domestic Assistance synthesized 15 amino acid peptide, developmental measures in children. Program Nos. 93.306, Comparative Medicine, designated peptide 1–69, which has the The organizing committee is chaired by 93.306; 93.333, Clinical Research, 93.333, sequence of amino acids numbers 308 to the National Institute of Environmental 93.337, 93.393–93.396, 93.837–93.844, 322 of the human immunodeficiency Health Sciences, National Institutes of 93.846–93.878, 93.892, 93.893, National virus-1 (HIV–1) IIIB env-coded protein Health, with representatives from the Institutes of Health, HHS) to immunize animals against HIV. Environmental Protection Agency, the Dated: October 26, 1998. Peptide 1–69 elicited antibodies in Agency for Toxic Substances and LaVerne Y. Stringfield, animals that block HIV proliferation and Disease Registry, the Food and Drug Committee Management Officer, NIH. block HIV-induced cell fusion in cell Administration, the Department of [FR Doc. 98–29071 Filed 10–29–98; 8:45 am] culture. Health and Human Services, the BILLING CODE 4140±01±M It is anticipated that this license may National Oceanic and Atmospheric be limited to the field of treatment or Administration, the Office of Science prevention of HIV using a specific 15 and Technology Policy, and the Office DEPARTMENT OF HEALTH AND amino acid peptide of Management and Budget. HUMAN SERVICES (RIQRGPGRAFVTIGK). The major studies being considered at The prospective exclusive license will the workshop are those which have National Institutes of Health be royalty-bearing and will comply with examined populations in Iraq and the the terms and conditions of 35 U.S.C. Seychelles, the Faeore Islands, and the Prospective Grant of Exclusive 209 and 37 CFR 404.7. This prospective Amazon, along with the most relevant License: Human Immunodeficiency exclusive license may be granted unless animal studies for estimating human Virus (HIV) ENV-Coded Peptide within 90 days from the date of this risks. Workshop participants will try to Capable of Eliciting HIV-Inhibiting published notice, NIH receives written reach consensus on what we can Antibodies in Mammals evidence and argument that establishes conclude and what the uncertainties are AGENCY: National Institutes of Health, that the grant of the license would not for each of the studies alone and for the Public Health Service, DHHS. be consistent with the requirements of studies taken together. The product of ACTION: Notice. 35 U.S.C. 209 and 37 CFR 404.7. the workshop should be policy relevant Applications for a license filed in and facilitate agreement on risk SUMMARY: This is notice in accordance response to this notice will be treated as assessment issues. with 15 U.S.C. 209(c)(1) and 37 CFR objections to the grant of the 404.7(a)(1)(i) that the National Institutes contemplated license. Comments and Workshop Agenda of Health (NIH), Department of Health objections submitted in response to this Scientists involved in the major and Human Services, in contemplating notice will not be made available for studies will present and discuss their 58410 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices studies. To help structure the workshop State agencies who are involved in (Please type or print clearly) the following questions have been assessing risks from methylmercury lllllllllllllllllllll developed by the organizing committee exposure. Last Name First Name Middle Initial and will be discussed with respect to A public comment session will lllllllllllllllllllll each study: provide the opportunity for additional Institution Department 1. For each study, what are the views and comments. Oral presentations lllllllllllllllllllll Address City State Zip Code relative exposures to organic or will be limited to 5 minutes in length to lllllllllllllllllllll inorganic mercury? allow for a maximum number of Office Phone FAX Number Email Address 2. What are the sources of exposure? presentations. Written statements Please mail or fax your registration, Is the consumption of fish, shellfish and should supplement and may expand on no later than November 6, 1998 to: marine mammals the dominant source? the oral presentation. Written comments Are dental amalgams, occupational may also be provided and should be NTP Liaison & Scientific Review Office, exposures or other sources significant submitted to the NTP Liaison & NTP/NIEHS, P.O. Box 12233, MD: confounders? Scientific Review Office, NIEHS, P.O. A3–01, Research Triangle Park, NC 3. What is the specificity and Box 12233, Research Triangle Park, NC 27709, fax: (919) 541–0295 sensitivity of health endpoints, e.g., 27709 and must be received by I am interested in observing the behavioral, neurological, and November 9, 1998, to be transmitted to following break-out group discussion: developmental? What are the most the workgroups prior to the workshop. ‘‘Breakout’’ Panel Sessions: (Please mark specific and sensitive tests of these first and second choices) endpoints? How are these tests The Preliminary Schedule Follows 1. Exposure Panel llllllllllll llll impacted by cultural or behavioral Wednesday, November 18, 1998 2. Neurobehavioral Endpoints Panel practices? 3. Confounders & Variables Panel lllll 8:30 am–6:00 pm Presentation and 4. Design/Statistics Panel lllllllll 4. Are the developmental tests used llllllllll comparable across different studies? Discussion of Each Epidemiology 5. Experimental Panel Across species? Study and a Presentation and Public Comment Session: 5. What are the confounders that Discussion of the major animal or I would like to make an oral affect health endpoints positively (e.g., experimental studies presentation during the Public llllll selenium, omega-3 fatty acids) and Thursday, November 19, 1998 Comment Session negatively (e.g., PCBs; alcohol use; (limit to 5 minute oral presentation, 8:30 am–Noon Moderators will lead health conditions with neurological written statements should supplement panel discussions addressing each effects, such as diabetes)? Do they and may expand on the oral of the 8 questions in the general influence the interpretation of the study. presentation) session 6. What is the variability within and A registration fee of $50.00 (US) is 1:00 pm–2:00 pm Public Comment across populations studied in mercury requested. Credit cards cannot be Session exposure and host factors (e.g., age, 2:00 pm–6:00 pm Panels develop accepted. Personal checks, cashier gender, nutritional status and practices, recommendations and conclusions checks or money orders made payable and genetic predisposition)? in separate breakout groups to: Methylmercury Workshop should be 7. For each epidemiological study of included with your registration. For interest, which features of its statistical Friday, November 20, 1998 those faxing registration, please indicate design, research protocol or execution 8:30 am–Noon Each panel will make a the date the registration fee is being in the field are particularly strong or summary presentation on their fowarded by mail. weak? To what extent do these strengths assessment of the assigned Accomodations and weaknesses affect the validity and questions reliability of scientific inferences based Noon Overview and Summary Hotel reservations can be made on these studies? 1:00 pm Adjourn directly with the Brownestone Hotel 8. What are the contributions of (919) 828–0811. A block of rooms is animal or experimental studies toward Public Participation Encouraged being held through October 30, 1998. interpretation of the human studies? The general sessions and the breakout Identify yourself as attending the NIEHS Organized panels will assess the groups are open to the public and Methylmercury Workshop. presentations with respect to the limited only by the space available. A Dated: October 21, 1998. questions above. A panel on exposure public comment session is scheduled as Samuel H. Wilson, M.D., will assess and develop a report on described above. Oral and/or written Deputy Director, NIEHS questions 1 & 2; a neurobehavioral panel comments are requested as discussed will assess and develop a report on above. [FR Doc. 98–29075 Filed 10–29–98; 8:45 am] questions 3 & 4; a panel on confounders BILLING CODE 4140±01±M and variables will address 5 & 6; and a Registration panel on design/statistics will assess To register, please provide the and report on question 7; question 8 following information: to the Workshop DEPARTMENT OF HOUSING AND will be addressed by the experimental on ‘‘Scientific Issues Relevant to URBAN DEVELOPMENT panel. Assessment of Health Effects from Invited workshop participants will Exposure to Methylmercury’’. [Docket No. FR±4375±N±04] include scientists involved in the major ‘‘Scientific Issues Relevant to studies, epidemiologists, pediatric Notice of Proposed Information Assessment of Health Effects from neuropsychiatrists, developmental Collection: Comment Request Exposure to Methylmercury’’ biologists, toxicologists, AGENCY: Office of the President of biomathematicians, biomonitoring (Open to the public, limited only by Government National Mortgage specialists and scientists who are skilled space available) Association (Ginnie Mae), HUD. at integrating diverse data sets, as well Brownestone Hotel, Raleigh, NC, ACTION: Notice. as representatives from Federal and November 18–20, 1998 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58411

SUMMARY: The proposed information information collection to OMB for Title of Proposal: Quarterly Loan collection requirement described below review, as required by the Paperwork Level Reporting will be submitted to the Office of Reduction Act of 1995 (44 U.S.C. OMB Control Number, if applicable: Management and Budget (OMB) for Chapter 35, as amended). 2503–0026 review, as required by the Paperwork The Notice is soliciting comments Description of the need for the Reduction Act. The Department is from members of the public and affected information and proposed use: The soliciting public comments on the agencies concerning the proposed Quarterly Loan Level Reporting data is subject proposal. collection of information to: (1) evaluate necessary to monitor the risk of over DATES: Comments due: December 29, whether the proposed collection of $500 billion of federally insured 1998. information is necessary for the proper mortgage-backed securities. The ADDRESSES: Interested persons are performance of the functions of the collection of loan level data gives invited to submit comments regarding agency, including whether the management a more complete this proposal. Comments should refer to information will have practical utility; understanding of the nature and trend of the proposal by name and/or OMB (2) Evaluate the accuracy of the agency’s Ginnie Mae’s portfolio of securities, as Control Number and should be sent to: estimate of the burden of the proposed well as a more detailed understanding Sonya Suarez, Office of Policy, Planning collection of information; (3) Enhance of each of the individual issuer and Risk Management, Department of the quality, utility, and clarity of the portfolios. Housing & Urban Development, 451— information to be collected; and (4) Agency form numbers, if applicable: 7th Street, SW, Room 6226, Washington, Minimize the burden of the collection of not applicable DC 20410. information on those who are to Members of affected public: For-profit FOR FURTHER INFORMATION CONTACT: respond, including through the use of businesses (mortgage companies, thrifts, Sonya Suarez, Ginnie Mae, (202) 708– appropriate automated collection savings & loans, etc.) 2772 (this is not a toll-free number) for techniques or other forms of information Estimation of the total number of copies of the proposed forms and other technology, e.g., permitting electronic hours needed to prepare the information available documents. submission of responses. collection including number of SUPPLEMENTARY INFORMATION: The This Notice also lists the following respondents, frequency of response, and Department will submit the proposed information: hours of response:

Frequency of Total annual Respondents response responses Total hours

Ginnie Mae Issuers ...... 396 4 1,584 6,336

Status of the proposed information Mark Johnston, Department of Housing DEPARTMENT OF THE INTERIOR collection: This is a reinstatement of a and Urban Development, Room 7256, previously approved collection of 451 Seventh Street SW, Washington, DC Office of the Secretary information for which approval has 20410; telephone (202) 708–1226; TTY Notice of the Secretary's Decision to expired. number for the hearing- and speech- Assume Jurisdiction and Review impaired (202) 708–2565, (these Authority: Section 3506 of the Paperwork United States v. United Mining Reduction Act of 1995, 44 U.S.C. Chapter 35, telephone numbers are not toll-free), or as amended. Corporation, and to Accept Briefs call the toll-free Title V information line From Interested Parties Dated: October 22, 1998. at 1–800–927–7588. George S. Anderson, SUPPLEMENTARY INFORMATION: In AGENCY: Office of the Secretary, Interior. Executive Vice President, Ginnie Mae. accordance with the December 12, 1988 ACTION: Notice. [FR Doc. 98–29066 Filed 10–29–98; 8:45 am] court order in National Coalition for the BILLING CODE 4210±01±M Homeless v. Veterans Administration, SUMMARY: Pursuant to a petition and a No. 88–2503–OG (D.D.C.), HUD letter requesting Secretarial review, the publishes a Notice, on a weekly basis, Secretary of the Interior has decided to DEPARTMENT OF HOUSING AND exercise his authority as set forth in 43 URBAN DEVELOPMENT identifying unutilized, underutilized, excess and surplus Federal buildings CFR 4.5 to review United States v. [Docket No. FR±4341±N±33] and real property that HUD has United Mining Corporation (United Mining), 142 IBLA 339 (1998), a Federal Property Suitable as Facilities reviewed for suitability for use to assist the homeless. Today’s Notice is for the decision that raises important mining to Assist the Homeless law issues arising under the Building purpose of announcing that no Stone Act. Of particular importance in AGENCY: Office of the Assistant additional properties have been Secretary for Community Planning and this matter is the meaning of the phrase determined suitable or unsuitable this ‘‘chiefly valuable’’ in that statute. Development, HUD. week. ACTION: Notice. In order to undertake his review, the Dated: October 22, 1998. Secretary will accept briefs on the issues SUMMARY: This Notice identifies Fred Karnas, Jr., set forth in the Supplementary unutilized, underutilized, excess, and Deputy Assistant Secretary for Economic Information according to the schedule surplus Federal property reviewed by Development. and instructions in that portion of this HUD for suitability for possible use to [FR Doc. 98–28778 Filed 10–29–98; 8:45 am] Notice. assist the homeless. BILLING CODE 4210±29±M Pending conclusion of the Secretary’s EFFECTIVE DATE: October 30, 1998. review of this matter, the decision of the FOR FURTHER INFORMATION CONTACT: IBLA is stayed. 58412 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

DATES: See Supplementary Information chiefly valuable for building stone, but mining claims under the Building Stone section for the Brief submission for aesthetic purposes. Therefore, BLM Act. See 142 IBLA at 353. schedule. concluded, mining should not be United Mining appealed Judge Child’s ADDRESSES: Briefs from interested permitted as the land does not fall decision to the Interior Board of Land parties should be submitted to the within the purview of the Building Appeals (IBLA), arguing that the Office of the Solicitor at the United Stone Act, 30 U.S.C. 161 (1994) Building Stone Act did not govern the States Department of the Interior, 1849 (Building Stone Act), which provides, in placer claims. In its decision on appeal, C Street, NW., Mail Stop 6352, pertinent part: ‘‘any person authorized a 6–4 majority of the IBLA, including a Washington, DC. 20240. Briefs should to enter lands under the mining laws of concurring opinion, found the be marked for the attention of Miriam the United States may enter lands that Holystone boulders subject to the Chapman, Attorney-Advisor, Division of are chiefly valuable for building stone Building Stone Act. 142 IBLA 339 General Law, Office of the Solicitor. under the provisions of law in relation (1998). Finding that the placer claims FOR FURTHER INFORMATION CONTACT: to placer mineral claims.’’ were properly located as building stone Karen Maloy Sprecher, Associate United Mining moved to dismiss placer claims, the IBLA found it Solicitor–Division of General Law, BLM’s complaint and presented unnecessary to revisit whether the Office of the Solicitor, United States evidence of the uncommon nature of the comparative value test applies to claims Holystone boulders, the existence of Department of the Interior, 1849 C located under the Mining Law and Holystone boulders of a marketable Street, NW., Mail Stop 6530, vacated that portion of Judge Child’s quality at each claim and the estimated Washington, DC. 20240; telephone 202– decision. The IBLA then proceeded to prices for the Holystone boulders. 208–4722. Before filing briefs, parties address what the drafters of the United Mining contended that their should contact Miriam Chapman, Building Stone Act intended when submission clearly demonstrated that Attorney-Adviser, Division of General employing the term ‘‘chiefly valuable.’’ the land was chiefly valuable for Law, by telephone at 202–208–5216, for The IBLA determined that the term was building stone. information concerning service of used in the context of statutes designed In a November 1, 1994, decision, to dispose of public lands in a manner process. Parties that have already filed Judge Child first concluded that the briefs and other documents will be that ensured land was suitable for an Holystone boulders were building stone intended purpose, namely agriculture or contacted regarding any additional within the meaning of the Building service requirements. mining. The IBLA relied on Pacific Stone Act, and that the placer claims Coast Marble Co. v. Northern Pacific SUPPLEMENTARY INFORMATION: In were subject to that Act. See 142 IBLA February 1992, United Mining R.R. Co., 25 Interior Dec. 233, 244–45 at 352. Since the Holystone boulders (1897) (Pacific Coast), as representative Corporation (United Mining) located 14 were building stone, there would have KB placer claims (placer claims) along of the Department’s view. Pacific Coast to be a determination as to whether the states in part: sections of the Big Wood River channel land in the Big Wood River area was in Idaho and filed location notices with ‘‘chiefly valuable’’ for building stone. That whatever is recognized as a mineral the Bureau of Land Management (BLM). Having concluded the Building Stone by the standard authorities on the subject, United Mining proposed to remove whether metallic or other substance, when Act applied, Judge Child proceeded to the same is found on the public lands in Holystone boulders (large basalt consider whether the comparative value quantity and quality sufficient to render the boulders that have been naturally water- of the claimed land for purposes other land more valuable on account thereof than sculpted over time) from the area. than mining (hereafter the comparative for agricultural purposes, should be treated In response to United Mining’s value test) was relevant under the as coming within the purview of the mining demonstrated interest in the Holystone general mining laws. Noting that laws. boulders, BLM performed an although the Department had rejected Applying the Pacific Coast standard, environmental assessment of the the use of comparative value in recent the IBLA found that ‘‘[a]n evaluation proposed removal. BLM’s examiners decisions, the Judge determined that strictly on the basis of the land’s determined that the Holystone boulders early Department decisions, Supreme ‘aesthetic’ and ‘geological’ worth with in the Big Wood River area comprised Court decisions and Congressional Acts no regard to its worth for agricultural a unique geological resource and favored the application of the purposes does not comport with the therefore recommended that the placer comparative value test under the 1872 intent of Congress when it enacted the claims be invalidated. General Mining Law, 30 U.S.C. 22 Building Stone Act, 30 USC 161 (1994), On March 8, 1993, United Mining (1994) (Mining Law). See 142 IBLA at or with the Department’s clearly stated submitted a notice advising the BLM of 352. He further concluded that for any interpretation of that Act since that its intent to conduct mining on the mining claim to be valid, the land must time.’’ 142 IBLA at 372. The IBLA then placer claims. BLM filed a contest be more valuable for mining than for concluded that the term ‘‘chiefly complaint (a complaint contesting other purposes. valuable’’ United Mining’s plan) on March 11, Judge Child compared the building 1993, which was assigned to stone with the aesthetic and geological contemplates a rational comparison of Administrative Law Judge Ramon Child, resources of the land in the Big Wood values, and the measurement of those values must be quantifiable, using units of and BLM issued a March 17, 1993, River area. He rejected United Mining’s measurement applicable to both sides of the decision prohibiting mining and the contention that a lack of evidence of the equation. Accepting an unquantifiable removal of stone pending the outcome value of the land for aesthetic and statement of value, such as a conclusion that of the contest proceeding. geological purposes precluded a finding the land is ‘unique,’ or ‘priceless,’ or Judge Child conducted a hearing on that the land was more valuable for such ‘irreplaceable,’ for one use and then April 4 and 5, 1994, in Idaho. At the purposes. Noting that it was impossible demanding a value of the same land hearing, BLM argued that the Holystone to place a monetary value on quantified in a dollar amount for the other boulders in the Big Wood River area irreplaceable geological features, Judge use would render any decision arbitrary. were a great natural wonder with Child concluded that the land was more Id. at 372–73. The IBLA held that unique geological attributes. BLM also valuable for geological and aesthetic Judge Child’s ‘‘chiefly valuable’’ argued that the land in question was not purposes and therefore not subject to analysis was erroneous because it Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58413 compared an unquantifiable statement proceeding in support of United Mining. 2. Response briefs by Petitioners of value (that the land was ‘‘unique’’ or The motion and brief were received on (Intervenors) and others opposing the ‘‘priceless’’ or ‘‘irreplaceable’’) for one June 10, 1998. The National Mining IBLA decision must be received by use (preservation of the land for public Association supports the IBLA decision. January 22, 1999, and are limited to a purposes) against a value of the same By letter dated June 10, 1998, the length of 25 pages; and land quantified in a dollar amount for Intervenors filed a reply brief. 3. Reply briefs from opponents must the other use (building stone) and Recognizing the importance of the be received by February 19, 1999, and reversed that portion of the Judge issues raised by the IBLA decision and are also subject to a 25-page limit. Child’s decision. Id. at 373. the differences in the views of the All briefs must be double-spaced and Four dissenting administrative judges members of the IBLA, the Secretary has use the times Roman font and 12-point noted that the language of the Building decided to review the IBLA decision type. No oral argument will be heard on Stone Act, which requires that lands be pursuant to regulations which provide: these issues. ‘‘chiefly valuable for building stone,’’ The authority reserved to the Secretary BLM, as a party in this matter, will be does not preclude taking aesthetic and includes, but is not limited to: represented by the Division of Mineral geological values into account. 142 * * * * * Resources of the Office of the Solicitor. IBLA at 379–86. Moreover, in his (2) The authority to review any decision of In order to assure that appropriate dissent, Administrative Judge Arness any employee or employees of the ethical standards are observed, all BLM noted that the lead and concurring Department, including any administrative participation in this matter will be opinions’ assumption that the relevant law judge or board of the Office [of Hearings through the Division of Mineral inquiry is made under an historical and Appeals], or to direct any such employee Resources in accordance with the understanding that only agricultural and or employees to reconsider a decision. 43 CFR 4.5 (Bracketed material added.) provisions of this Notice. mineral values are compared was Pending conclusion of the Secretary’s incorrect, as nothing in the statute To assist him in rendering a decision review of this matter, the decision of the creates such a limitation, nor has the on this matter, the Secretary will accept IBLA is stayed. Department promulgated regulations to briefs from interested parties. Briefs Dated: October 22, 1998. such effect. Further, Administrative should address the following issues: (1) Judge Arness wrote that instead of Whether the term ‘‘chiefly valuable’’ as Edward B. Cohen. making the comparisons required by the used in the Building Stone Act requires Deputy Solicitor. Building Stone Act, the majority an assessment of comparative values [FR Doc. 98–29146 Filed 10–29–98; 8:45 am] imposed a marketability test on the and whether those values could include BILLING CODE 4310±10±M Department and shifted the burden of values other them agricultural, e.g., persuasion from United Mining to the scenic, historic, recreational, and government. Finally, Administrative scientific; (2) whether the Mining Law DEPARTMENT OF THE INTERIOR Judge Arness noted that such an itself incorporates a requirement that approach is inconsistent with the there be an assessment of comparative National Informational Meeting on Building Stone Act and prior values; and (3) assuming issue (1) is Section 1115 of the Transportation Departmental practice. 142 IBLA 383– answered in the affirmative, whether the Equity Act for the 21st Century (TEA± 86. Building Stone Act was meant to create 21) On April 28, 1998, the Secretary of a new comparative value standard only AGENCY: Bureau of Indian Affairs, the Interior (Secretary) received a for building stone, or whether Congress Interior. Petition dated April 24, 1998, from the meant instead to confirm that ACTION: Notice of public meeting. Committee for Idaho’s High Desert and comparative value was part of the the Connecting Point for Public Lands Mining Law; i.e., was inclusion of SUMMARY: The Department of the (Intervenors), requesting that the ‘‘chiefly valuable’’ in the Building Stone Interior is giving notice of its intention Secretary render a final decision Act meant to incorporate or confirm a of holding an informational meeting to overturning the IBLA and reinstating the pre-existing rule under the Mining law, share information about the regulatory findings of Judge Child. Specifically, the or create a new, different rule for negotiating process in Section 1115 of Intervenors asked the Secretary to affirm building stone? The Secretary’s review the Transportation Equity Act for the Judge Child’s holding regarding the of this issue will address the teachings 21st Century (TEA–21), concerning the Mining Law, particularly his affirmation of other laws, if relevant, e.g., the Indian Reservation Roads program’s of the comparative value test for mining Mineral Leasing Act, 30 U.S.C. 481, et regulations and funding formula. claim validity. On May 11, 1998, the seq. (1994). DATES: The public meeting will be held Secretary received a letter dated May 7, In reviewing the matter, the Secretary on Monday, November 16, 1998, 1998, authored jointly by will consider the petition and letters beginning at 9:00 a.m. and ending at representatives of American Rivers, the seeking reversal of the IBLA decision, as 3:30 p.m. MST. Mineral Policy Center, the National well as other briefs that already have Wildlife Federation and the Sierra Club. been filed in support of the IBLA ADDRESSES: The meeting will be held at These groups also requested the decision, as opening briefs on this the Sheraton Uptown Albuquerque Secretary’s affirmation of the subject and will accept additional briefs Hotel, 2600 Louisiana Boulevard, NE, comparative value test. On June 8, 1998, (including amicus briefs) in opposition Albuquerque, NM 87110, (505) 881– the National Mining Association filed a to, and in favor of the petition and 0000. Motion For Leave to File an Amicus letters, from interested parties. FOR FURTHER INFORMATION CONTACT: Curiae Brief with the Secretary. Briefs must be submitted according to Additional information may be obtained Accompanying the motion were the the following schedule: from Mr. LeRoy Gishi, Chief, Division of National Mining Association’s amicus 1. Briefs opposed to the petition and Transportation, Bureau of Indian brief in opposition to the petition for letter seeking Secretarial review (i.e., Affairs, Department of the Interior, MS– secretarial review and copies of two briefs in support of the IBLA decision) 4058–MIB, 1849 C Street, NW, amicus briefs that had been filed by must be received by December 4, 1998, Washington, DC 20240, (202) 208–4359, several amici in the United Mining IBLA and my not exceed 50 pages in length; Fax (202) 208–4696. 58414 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

SUPPLEMENTARY INFORMATION: TEA–21 Farmington Field Office, (2) Mimbres Town Date/Time Location significantly amended numerous planning area of the Las Cruces Field provisions of title 23, United States Office, (3) Rio Puerco area of the Albuquerque November Albuquerque, Code, including section 202. Under Albuquerque Field Office and (4) Taos 17, 1998 at Field Of- amended section 202 (section 1115 of Field Office. The proposed dates for 7:00 pm. fice, 435 TEA–21), the Secretary of the Interior public scoping meetings are included Montano NM, Albu- shall establish regulations governing the herein. querque, Indian Reservation Roads program and DATES: Written comments regarding NM. the funding formula using the proposed issues to be addressed in November Cuba High negotiated rule making procedure. developing the draft HMPs/EISs must be 18, 1998 at School For those not able to attend, submitted by December 9, 1998. In 7:00 pm. Cafeteria, information will be available on the addition to the written comments seven Cuba, NM. Indian Reservation Roads Internet public scoping meetings will be held. Taos ...... November Taos Field 17, 1998 at Office, 226 website on the World Wide Web at See below for locations, dates and times. http://www.irr.bia.gov or at the Federal 7:00 pm. Cruz Alta ADDRESSES: Comments should be sent to Road, Lands Highways Office Internet website the following locations. Taos, NM. at http://www.fhwa.dot.gov/lands.html November BLM-New five days after the public meeting. (1) Farmington Field Office, Farmington HMP/EIS Team Leader, 1235 La Plata 18, 1998 at Mexico Scope of the National Public Meeting 7:00 pm. State Of- Highway, Farmington, NM 87401– fice, 2nd The scope of the national public 1808 Floor Con- meeting is to share information with (2) Las Cruces Field Office, Mimbres ference tribal governments, tribal organizations, HMP/EIS Team Leader, 1800 Room, individual tribal members and the Marquess Street, Las Cruces, NM 1474 public, about the regulatory negotiating 88005–3371 Rocteo Road, process. (3) Albuquerque Field Office, Rio Puerco HMP/EIS Team Leader, 435 Santa Fe, Dated: October 26, 1998. Montano Road, NE, Albuquerque, NM NM. Hilda Manuel, 87107–4935 Deputy Commissioner of Indian Affairs. (4) Taos Field Office, Taos HMP/EIS SUPPLEMENTARY INFORMATION: The four [FR Doc. 98–29150 Filed 10–29–98; 8:45 am] Team Leader, 226 Cruz Alta Road, Riparian Habitat Management Plans and BILLING CODE 4310±02±P Taos, NM 87571–5983 Environmental Impact Statements FOR FURTHER INFORMATION CONTACT: (HMPs/EISs) are being prepared to provide comprehensive riparian and DEPARTMENT OF THE INTERIOR (1) Farmington Field Office-Bob aquatic management guidance for the Moore-505–599–6311. four named areas and as a result of a Bureau of Land Management (2) Las Cruces Field Office-Bill United States District Judge Court Merhege-505–525–4369. [NM±010±1040±00] ordered settlement agreement, signed (3) Albuquerque Field Office-Jim September 10, 1998. This Federal Court Intent to prepare four Riparian Habitat Silva-505–761–8901. Order stipulated preparation of the four Management Plans and Associated (4) Taos Field Office-Pam Herrera- named Riparian Habitat Management Environmental Impact Statements 505–751–4705. Plans and Environmental Impact (HMPs/EISs) Public Meetings: The public is invited Statements (HMPs/EISs), Civil No. 96– to attend seven public scoping meetings 0693 JP/LCS. The HMPs/EISs will be prepared on to identify issues to be considered in the the riparian areas in the following preparation of the four Riparian Habitat Planning Issues: Prior to scoping the locations: (1) Farmington Field Office, Management Plans and Environmental following preliminary issues have been (2) Mimbres planning area of the Las Impact Statements (HMPs/EISs). The determined. They are use of riparian Cruces Field Office, (3) Rio Puerco area meetings will be held at the following and aquatic habitat found with each of the Albuquerque Field Office and (4) locations: area, competing demands for that Taos Field Office. habitat, recreation demands for that AGENCY: Bureau of Land Management, Town Date/Time Location habitat, livestock grazing on the habitat, Interior. and mineral development within the Farmington ... November Civic Center, habitat. During the scoping period ACTION: Notice of Intent to prepare four 17, 1998 at 200 West comments will also be accepted Riparian Habitat Management Plans and 7:00 pm. Arrington concerning planning criteria. At the Environmental Impact Statements Farming- conclusion of the scoping process final ton, NM. (HMPs/EISs) and invitation to issues and planning criteria for each of participate in the developing the Habitat Las Cruces ... November Lordsburg 17, 1998 at Civic Cen- the four different locations will be Management Plans and the developed. Environmental Impact Statement 7:00 pm. ter, 313 process. East 4th, Public Participation: Public Lordsburg, participation will include consultation SUMMARY: The Bureau of Land NM. with affected users and other agencies, November Las Cruces meetings with interested groups and Management is initiating the 18, 1998 at Field Of- preparation of four Riparian Habitat 7:00 pm. fice, 1800 individuals, media notices, Federal Management Plans and Environmental Marquess, Register Notices, public meetings and Impact Statements (HMPs/EISs). This Las distribution of the draft and final HMPs action will be located in the following Cruces, and EISs. A complete record of each of four areas in New Mexico: locations: (1) NM. the four HMPs/EISs will be available for Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58415 public review at their respective Field DEPARTMENT OF THE INTERIOR SUMMARY: The Minerals Management Office locations. Service (MMS), in accordance with Minerals Management Service Dated: October 27, 1998. Federal Regulations (40 CFR 1501.4 and 1506.6) that implement the National Linda S.C. Rundell, Environmental Documents Prepared Environmental Policy Act (NEPA), Acting Deputy State Director, Division of for Proposed Oil and Gas Operations announces the availability of NEPA- Resources Planning, Use and Protection. on the Gulf of Mexico Outer related Site-Specific Environmental [FR Doc. 98–29099 Filed 10–30–98; 8:45 am] Continental Shelf (OCS) Assessments (SEA’s) and Findings of No BILLING CODE 4310±FB±M Significant Impact (FONSI’s), prepared AGENCY: Minerals Management Service, by MMS for the following oil and gas Interior. activities proposed on the Gulf of ACTION: Notice of the availability of Mexico OCS. This listing includes all environmental documents prepared for proposals for which the FONSI’s were OCS mineral proposals on the Gulf of prepared by the Gulf of Mexico OCS Mexico OCS. Region in the period subsequent to publication of the preceding notice.

Activity/Operator Location Date

ATP Oil and Gas Corporation, Pipeline Activity, SEA No. G± Garden Banks Area, Blocks 133 and 134; East Breaks Area, 08/26/98 18810A. Block 173; and High Island Area, East Addition, South Exten- sion, Blocks A±595, A±596, A±401, and A±400; Lease OCS± G 18810; 135 miles south of Galveston Island, Texas. Texaco Exploration and Production, Inc., Pipeline Activity, SEA Main Pass Area, South and East Addition, Block 252; Viosca 07/07/98 No. G±19672A. Knoll Area, Block 786; Lease OCS±G 19672, 67 miles south of Baldwin County, Alabama. Exxon U.S.A., Pipeline Activity, SEA Nos. G±20527 and G± Mobile Area, Blocks 867, 823, and 824; Mobile Bay Area, Block 09/27/98 20528. 112; Leases OCS±G±20527 and 20528, 4 to 8 miles south of Dauphin Island, Mobile County, Alabama. Dauphin Island Gathering Partners, Pipeline Activity, SEA No. Main Pass Area, South and East Addition, Blocks 256, 252, 07/23/98 G±20538. 251, 222, and 223, Lease OCS±G 20538, 55 miles south Baldwin County, Alabama. Amoco Production Company, Pipeline Activity, SEA No. G± Main Pass Area, South and East Addition, Blocks 281 to 245, 08/18/98 20541. Lease OCS±G 20541, 65 miles south of Mobile County, Ala- bama. Destin Pipeline Company, L.L.C., Pipeline Activity, SEA Nos. Main Pass Area, South and East Addition, Blocks 284, 283, 08/27/98 G±20542, G±20543, and G±20544. 279, 280, 281, 282, 261, and 260, Leases OCS±G 20542, 20543, and 20544, 38 to 48 miles south of Jackson County, Mississippi. Destin Pipeline Company, L.L.C., Pipeline Activity, SEA No. G± Viosca Knoll Area, Blocks 900, 901, 902, 858, 859, 815, 816, 08/27/98 20547. 817, 818, 774, and 775; Main Pass Area, South and East Ad- dition, Blocks 286, 285, and 284; Lease OCS±G 20547, 74 to 86 miles south of Jackson and Mobile Counties, Alabama. AOA Geophysics Inc., G&G Activity, SEA No. T98±27 ...... Garden Banks and Keathley Canyon Areas, 130 miles south of 09/03/98 Cameron and Vermilion Parish, Louisiana. Exxon U.S.A., Development Activity, SEA No. N±6131 ...... Alaminos Canyon Area, Blocks 25 and 26, Leases OCS±G 07/08/98 10388 and 10381, 167 miles south of Galveston County, Texas. Texaco Exploration and Production, Inc., Development Activity, Mississippi Canyon Area, Block 292, Lease OCS±G 8806, 32 08/18/98 SEA No. N±6152. miles southeast of Plaquemines Parish, Louisiana. Chevron U.S.A., Exploration Activity, SEA No. N±6171 ...... Viosca Knoll Area, Block 346, Lease OCS±G 15428, 32 miles 08/18/98 south of Baldwin County, Alabama. Water Oil & Gas Corporation, Structure Removal Operations, Galveston Area, Block 350, Lease OCS±G 4721, 38 miles 08/20/98 SEA No. ES/SR 98±012A. south of Galveston County, Texas. Chevron U.S.A., Structure Removal Operations, SEA Nos. ES/ Vermilion Area, Block 245, Lease OCS±G 1146, 66.7 miles 08/20/98 SR 98±035 and 98±036. from the nearest shoreline at Vermilion Parish, Louisiana. Newfield Exploration Company, Structure Removal Operations, East Cameron Area, Block 67, Lease OCS±G 0161, 22 miles 08/25/98 SEA Nos. ES/SR 98±056. south of Cameron Parish, Louisiana. Mitchell Energy Corporation, Structure Removal Operations, Galveston Area, Block 189, Lease OCS 0092, 12 miles south of 05/27/98 SEA Nos. ES/SR 98±058 through 98±060. Galveston County, Texas. Cockrell Oil Corporation, Structure Removal Operations, SEA Vermilion Area, Block 202, Lease 14409; East Cameron Area, 08/10/98 Nos. ES/SR 98±063 and 98±064. Block 201, Lease OCS±G 11838; 55 and 57 miles south of Vermilion. OEDC Exploration & Production, L.P., Structure Removal Oper- Vermilion Area, Block 250, Lease OCS±G 1149, 64 miles south 08/31/98 ations, SEA No. ES/SR 98±065. of Vermilion Parish, Louisiana. Texaco Exploration and Production Inc., Structure Removal Op- South Marsh Island Area, Blocks 212 and 222, Lease OCS 08/31/98 erations, SEA Nos. ES/SR 98±066 and 98±067. 0130, 11 miles southeast of Vermilion Parish, Louisiana. Chevron U.S.A., Structure Removal Operations, SEA No. ES/ Eugene Island Area, Block 64, Lease OCS±G 1865, 16 miles 09/25/98 SR 98±068. south of St. Mary's Parish, Louisiana. Louisiana Land & Exploration Company, Structure Removal Op- Ship Shoal Area, Block 358, Lease OCS±G 12009, 69 miles 07/13/98 erations, SEA No. ES/SR 98±068S. south of Terrebonne Parish, Louisiana. Seagull Energy, E&P Inc., Structure Removal Operations, SEA South Marsh Island Area, Block 70, Lease OCS±G 12893, 62 07/15/98 No. ES/SR 98±070. miles south of Vermilion Parish, Louisiana. 58416 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Activity/Operator Location Date

CNG Producing Company, Structure Removal Operations, SEA West Cameron Area, Blocks 225, 229, Leases OCS±G 900 and 08/12/98 Nos. ES/SR 98±071 through 98±074. 902, 38 miles south of Cameron Parish, Louisiana. Samedan Oil Corporation, Structure Removal Operations, SEA Main Pass Area, Block 209, Lease OCS±G 5717, 45 miles east 07/24/98 No. ES/SR 98±075. of Plaquemines Parish, Louisiana. Stone Energy, Structure Removal Operations, SEA No. ES/SR Vermilion Area, Block 131, Lease OCS 0775, 32 miles south of 09/24/98 98±076. Vermilion Parish, Louisiana. Barrett Resources Corporation, Structure Removal Operations, Vermilion Area, Block 148, Lease OCS±G 8667, 36 miles south 08/12/98 SEA No. ES/SR 98±077. of Vermilion Parish, Louisiana. Forest Oil Corporation, Structure Removal Operations, SEA No. Eugene Island Area, Block 307, Lease OCS±G 1980, 67 miles 09/03/98 ES/SR 98±078. southwest of Terrebonne Parish, Louisiana. Vastar Resources, Inc., Structure Removal Operations, SEA West Delta Area, Block 133, Lease OCS±G 1106, 22 miles 08/25/98 No. ES/SR 98±079. southwest of Plaquemines Parish, Louisiana. The Houston Exploration Company, Structure Removal Oper- Galveston Area, Block 297, Lease OCS±G 12501, 22 miles 10/01/98 ations, SEA No. ES/SR 98±080. southeast of Galveston County, Texas. Mariner Energy, Inc., Structure Removal Operations, SEA No. South Timbalier Area, Block 173, Lease OCS±G 4001, 37 miles 10/15/98 ES/SR 98±081. south of Terrebonne Parish, Louisiana.

Persons interested in reviewing DEPARTMENT OF THE INTERIOR (A) Memorial to Mr. Benjamin environmental documents for the Banneker as currently proposed by H.R. proposals listed above or obtaining National Park Service 3499. information about EA’s and FONSI’s National Capital Region; National The Commission was established by prepared for activities on the Gulf of Public Law 99–652, the Commemorative Mexico OCS are encouraged to contact Capital Memorial Commission Public Meeting Works Act, to advise the Secretary and the MMS office in the Gulf of Mexico the Administrator, General Services OCS Region. Notice is hereby given in accordance Administration, (the Administrator) on FOR FURTHER INFORMATION CONTACT: with the Federal Advisory Committee policy and procedures for establishment Act that a meeting of the National of (and proposals to establish) Public Information Unit, Information Capital Memorial Commission (the commemorative works in the District of Services Section, Gulf of Mexico OCS Commission) will be held at 1:30 on Columbia and its environs, as well as Region, Minerals Management Service, Tuesday, November 10, 1998, at the such other matters as it may deem 1201 Elmwood Park Boulevard, New National Building Museum, Room 312, appropriate concerning commemorative Orleans, Louisiana 70123–2394, 5th and F Streets, NW., Washington, works. telephone (504) 736–2519. D.C. The purpose of the meeting will be to The Commission examines each SUPPLEMENTARY INFORMATION: The MMS memorial proposal for conformance to prepares EA’s and FONSI’s for discuss currently authorized and proposed memorials in the District of the Commemorative Works Act, and proposals which relate to exploration makes recommendations to the for and the development/production of Columbia and environs. In addition to discussing general Secretary and the Administrator and to oil and gas resources on the Gulf of Members and Committees of Congress. Mexico OCS. The EA’s examine the matters and routine business, the agenda is expected to include the The Commission also serves as a source potential environmental effects of of information for persons seeking to activities described in the proposals and following: I. Consultation: Memorial proponents establish memorials in Washington, present MMS conclusions regarding the will consult with the Commission on D.C., and its environs. significance of those effects. aspects of these authorized memorials: Environmental Assessments are used as The members of the Commission are A. Site selection alternatives for the as follows: a basis for determining whether or not Martin Luther King, Jr., Memorial in approval of the proposals constitutes West Potomac Park at the east end of Director, National Park Service major Federal actions that significantly Constitution Gardens; Hockey Fields; Chairman, National Capital Planning Commission affect the quality of the human Franklin Delano Roosevelt Memorial environment in the sense of NEPA Architect of the Capitol Park playing fields adjacent to Chairman, American Battle Monuments section 102(2)(C). A FONSI is prepared Independence Avenue at Ohio Drive; in those instances where the MMS finds Commission sites between Raoul Wallenberg Place, Chairman, Commission of Fine Arts that approval will not result in the Tidal Basin and Independence significant effects on the quality of the Mayor of the District of Columbia Avenue; and sites along East Capitol Administrator, General Services human environment. The FONSI briefly Street between 19th Street and Kennedy presents the basis for that finding and Administration Stadium. Secretary of Defense includes a summary or copy of the EA. B. Site selection alternatives and This notice constitutes the public design concepts for the Fourth Infantry The meeting will be open to the notice of availability of environmental Division memorial along Memorial public. Any person may file with the documents required under the NEPA Drive in Arlington, Virginia. Commission a written statement Regulations. The Commission will consider these concerning the matters to be discussed. matters and take action as appropriate Persons who wish to file a written Dated: October 23, 1998. in order to advise the Secretary of the statement or testify at the meeting or Chris C. Oynes, Interior (the Secretary). who want further information Regional Director, Gulf of Mexico OCS Region. II. Review of Legislation: The concerning the meeting may contact Ms. [FR Doc. 98–29100 Filed 10–29–98; 8:45 am] Commission will review the following Nancy Young, Executive Secretary to BILLING CODE 4310±MR±M legislative proposal: the Commission, at (202) 619–7097. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58417

Dated: October 19, 1998. any individual. Officials of the In 1934, human remains representing Joseph M. Lawler, American Museum of Natural History two individuals were recovered in Regional Director, National Capital Region. have also determined that, pursuant to Plymouth, MA by Henry and Ralph [FR Doc. 98–29184 Filed 10–29–98; 8:45 am] 43 CFR 10.2 (e), there is a relationship Hornblower and Jesse Brewer on BILLING CODE 4310±70±M of shared group identity which can be property owned by the Hornblowers reasonably traced between this item and adjacent to the Eel River. Also in 1934, the Oneida Nation of New York. these human remains were transferred DEPARTMENT OF THE INTERIOR This notice has been sent to officials to the Peabody Museum of Archaeology of the Oneida Nation of New York and and Ethnology. No known individuals National Park Service the Oneida Tribe of Wisconsin. were identified. The five associated Representatives of any other Indian tribe funerary objects include a triangular Notice of Intent to Repatriate a Cultural that believes itself to be culturally brass projectile point with attached Item in the Possession of the American affiliated with this object should contact sinew, a box of yellow ochre, a Native- Museum of Natural History, New York Martha Graham, Registrar of Cultural made ceramic sherd, and two bark City, NY Resources, American Museum of containers. During the 1950s, these objects were donated to the Plimoth AGENCY: National Park Service, Interior. Natural History, Department of Plantation by Harry Hornblower. ACTION: Notice. Anthropology, Central Park West at 79th Street, New York, NY 10024-5192; The documentation associated with the objects indicates these objects were Notice is hereby given under the telephone: (212) 769-5846 before associated with the human remains Native American Graves Protection and November 30, 1998. Repatriation of this from the Hornblower property at the Repatriation Act, 43 CFR 10.10 (a)(3), of object to the Oneida Nation of New York Peabody Museum of Archaeology and the intent to repatriate a cultural item in may begin after that date if no Ethnology. Based on the presence of the the possession of the American Museum additional claimants come forward. brass projectile point, the burials have of Natural History, New York City, NY Dated: October 22, 1998. been estimated to date to the early which meets the definition of ‘‘object of Francis P. McManamon, historic period or later, post 1600 A.D. cultural patrimony’’ under Section 2 of Departmental Consulting Archeologist, Historic documents (including the 1606 the Act. Manager, Archeology and Ethnography Champlain Map of Port Saint Louis) and The cultural item is a wampum string Program. oral tradition indicate the presence of in two pieces. The shell beads alternate [FR Doc. 98–29094 Filed 10–29–98; 8:45 am] Wampanoag in this area during this white and purple, except at one end of BILLING CODE 4310±70±F time. The Eel River in Plymouth, MA is the longer strand, which is made up of located within the traditional territory the purple wampum interspersed at two of the Wampanoag during the early places with a single white bead, and DEPARTMENT OF THE INTERIOR historic period. with a third white bead at the end. Based on the above mentioned In 1910, the American Museum of National Park Service information, officials of the Peabody Natural History purchased this Museum of Archaeology and Ethnology Notice of Inventory Completion for wampum string from Mr. Erastus Tefft and the Plimoth Plantation have as part of his collection. Mr. Tefft had Native American Human Remains and determined that, pursuant to 43 CFR acquired the string from Mr. M.R. Associated Funerary Objects in the 10.2 (d)(1), the human remains listed Harrington. According to the Museum’s Possession of the Peabody Museum of above represent the physical remains of documentation, Mr. Harrington had Archaeology and Ethnology, Harvard two individuals of Native American acquired this wampum string from Mr. University, Cambridge, MA and the ancestry. Officials of the Peabody Dan Webster in Oneida, NY. The Plimoth Plantation, Plymouth, MA Museum of Archaeology and Ethnology Museum’s records state that this and the Plimoth Plantation have also AGENCY: National Park Service, Interior. wampum string was ‘‘said to represent determined that, pursuant to 43 CFR the office of a chief in the Turtle Clan.’’ ACTION: Notice. 10.2 (d)(2), the five objects listed above Based on the Museum’s records and are reasonably believed to have been consultation with representatives of the Notice is hereby given in accordance placed with or near individual human Oneida Nation of New York, this with provisions of the Native American remains at the time of death or later as wampum string is affiliated with the Graves Protection and Repatriation Act part of the death rite or ceremony. Oneida Nation of New York. (NAGPRA), 43 CFR 10.9, of the Lastly, officials of the Peabody Museum Consultation evidence presented by completion of an inventory of human of Archaeology and Ethnology and the representatives of the Oneida Nation of remains and associated funerary objects Plimoth Plantation have determined New York also indicates that this item in the possession of the Peabody that, pursuant to 43 CFR 10.2 (e), there has ongoing historical, traditional, and Museum of Archaeology and Ethnology, is a relationship of shared group cultural importance central to the Tribe Harvard University, Cambridge, MA and identity which can be reasonably traced itself, and no individual had the right to the Plimoth Plantation, Plymouth, MA. between these Native American human alienate it. The Museum’s review of this A detailed assessment of the human remains and associated funerary objects information indicates that it is accurate. remains was made by Peabody Museum and the Wampanoag Repatriation Based on the above mentioned of Archaeology and Ethnology and Confederation on behalf of the information, officials of the American Plimoth Plantation professional staff in Wampanoag Tribe of Gay Head; and the Museum of Natural History have consultation with representatives of the Mashpee Wampanoag and the Assonet determined that, pursuant to 43 CFR Wampanoag Repatriation Confederation Band of the Wampanoag Nation, two 10.2 (d)(4), this cultural item has on behalf of the Wampanoag Tribe of non-Federally recognized Indian groups. ongoing historical, traditional, and Gay Head; and the Mashpee This notice has been sent to officials cultural importance central to the Tribe Wampanoag and the Assonet Band of of the Wampanoag Repatriation itself, and could not have been the Wampanoag Nation, two non- Confederation on behalf of the alienated, appropriated, or conveyed by Federally recognized Indian groups. Wampanoag Tribe of Gay Head; and the 58418 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Mashpee Wampanoag and the Assonet substances is consistent with the public investigated Arenol Pharmaceutical, Inc. Band of the Wampanoag Nation, two interest and with United States on a regular basis to ensure that the non-Federally recognized Indian groups. obligations under international treaties, company’s continued registration is Representatives of any other Indian tribe conventions, or protocols in effect on consistent with the public interest. that believes itself to be culturally May 1, 1971, at this time. DEA has These investigations have included affiliated with these human remains and investigated Applied Science Labs, Inc. inspection and testing of the company’s associated funerary objects should on a regular basis to ensure that the physical security systems, audits of the contact Barbara Isaac, Repatriation company’s continued registration is company’s records, verification of the Coordinator, Peabody Museum of consistent with the public interest. company’s compliance with state and Archaeology and Ethnology, 11 Divinity These investigations have included local laws, and review of the company’s Ave., Cambridge, MA 02138; telephone: inspection and testing of the company’s background and history. Therefore, (617) 496-2254; and/or Karin Goldstein, physical security systems, audits of the pursuant to 21 U.S.C. 823 and 28 CFR Curator of Original Collections, Plimoth company’s records, verification of the 0.100 and 0.104, the Deputy Assistant Plantation, PO Box 1620, Plymouth, MA company’s compliance with state and Administrator, Office of Diversion 02362; telephone (508) 746-1622, ext. local laws, and a review of the Control, hereby orders that the 379, before November 30, 1998. company’s background and history. application submitted by the above firm Repatriation of the human remains and Therefore, pursuant to Section 1008(a) for registration as a bulk manufacturer associated funerary objects to the of the Controlled Substances Import and of the basic classes of controlled Wampanoag Repatriation Confederation Export Act and in accordance with Title substances listed above is granted. on behalf of the Wampanoag Tribe of 21, Code of Federal Regulations, Section Dated: October 19, 1998. Gay Head; and the Mashpee 1301.34, the above firm is granted John H. King, registration as an importer of the basic Wampanoag and the Assonet Band of Deputy Assistant Administrator, Office of the Wampanoag Nation, two non- classes of controlled substances listed Diversion Control, Drug Enforcement Federally recognized Indian groups may above. Administration. begin after that date if no additional Dated: October 19, 1998. [FR Doc. 98–29062 Filed 10–29–98; 8:45 am] claimants come forward. John H. King, BILLING CODE 4410±09±M Dated: October 22, 1998. Deputy Assistant Administrator, Office of Francis P. McManamon, Diversion Control, Drug Enforcement Departmental Consulting Archeologist, Administration. DEPARTMENT OF JUSTICE [FR Doc. 98–29061 Filed 10–29–98; 8:45 am] Manager, Archeology and Ethnography Drug Enforcement Administration Program. Billing Code 4410±09±M [FR Doc. 98–29093 Filed 10–29–98; 8:45 am] [Docket No. 97±23] BILLING CODE 4310±70±F DEPARTMENT OF JUSTICE Bradford's Pharmacy Conditional Grant of Registration Drug Enforcement Administration DEPARTMENT OF JUSTICE On June 16, 1997, the Deputy Manufacturer of Controlled Assistant Administrator, Office of Drug Enforcement Administration Substances Notice of Registration Diversion Control, Drug Enforcement Administration (DEA), issued an Order Importer of controlled substances By Notice dated June 10, 1998, and to Show Cause to Bradford’s Pharmacy Notice of Registration published in the Federal Register on (Respondent) of Estill Springs, July 9, 1998, (63 FR 37137), Arenol By Notice dated July 17, 1998, and Tennessee, notifying it of an Pharmaceutical, Inc., which has opportunity to show cause as to why published in the Federal Register on changed its address to 2820 North August 6, 1998, (63 FR 42064), Applied DEA should not deny its application for Normandy Drive, Petersburg, Virginia registration as a retail pharmacy Science Labs, Inc., A division of Altech 23805, made application by renewal to Associates, Inc., 2701 Carolean pursuant to 21 U.S.C. 823(f), for reason the Drug Enforcement Administration, that its registration would be Industrial Drive, P.O. Box 440, State (DEA) to be registered as a bulk College, Pennsylvania 16801, made inconsistent with the public interest. By manufacturer of the basic classes of letter dated July 12, 1997, Respondent, application by renewal to the Drug controlled substances listed below: Enforcement Administration to be with counsel, timely filed a request for a hearing, and following prehearing registered as an importer of the basic Drug Schedule classes of controlled substances listed procedures, a hearing was held in below: N-Ethylamphetamine (1475) ...... I Nashville, Tennessee on November 18, Difenoxin (9168) ...... I 1997, before Administrative Law Judge Drug Schedule Amphetamine (1100) ...... II Gail A. Randall. At the hearing, both Methamphetamine (1105) ...... II parties called witnesses to testify and Heroin (9200) ...... I introduced documentary evidence. After Morphine (9300) ...... II This firm plans to manufacture listed the hearing, both parties submitted controlled substances to produce proposed findings of fact, conclusions of The firm plans to import these pharmaceutical products for its law and argument. controlled substances for the customers. On May 28, 1998, Judge Randall manufacture of reference standards. DEA has considered the factors in issued her Opinion and Recommended No comments or objections have been Title 21, United States Code, Section Ruling, recommending that received. DEA has considered the 823(a) and determined that the Respondent’s application for factors in Title 21, United States Code, registration of Arenol Pharmaceutical, registration be granted. Neither party Section 823(a) and determined that the Inc. to manufacture the listed controlled filed exceptions to the Administrative registration of Applied Science Labs, substances is consistent with the public Law Judge’s recommended decision, Inc. to import the listed controlled interest at this time. DEA has and on June 29, 1998,. Judge Randall Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58419 transmitted the record of these Suspension of Registration on Prince registration, Mr. Bradford disclosed his proceedings to the Acting Deputy Drug Store. At that time, Mr. Bradford criminal convictions and the actions Administrator. voluntarily surrendered the pharmacy’s against his previous DEA registration The Acting Deputy Administrator has DEA registration. and sate licenses. considered the record, and pursuant to On September 27, 1989, Mr. Bradford, At the hearing before Judge Randall, 21 CFR 1316.67, hereby issues his final both individually and on behalf of Mr. Bradford acknowledged dispensing order based upon findings of fact and Prince Drug Store, entered into an controlled substances without a conclusions of law as hereinafter set Agreed Final Order with the Pharmacy physician’s authorization and explained forth. The Acting Deputy Administrator Board, whereby he agreed to the that he had difficulty saying ‘‘no’’ and adopts, except as specifically noted revocation of the pharmacy’s license that he did want to lose customers. Mr. below, the Opinion and Recommended and his pharmacist license. Bradford testified that he takes full Ruling of the Administrative Law Judge, On November 17, 1989, Mr. Bradford responsibility for his actions, and his adoption is in no manner was sentenced to two years in jail for specifically stating that: each of the four felony counts, to be diminished by any recitation of facts, I left James R. Bradford of ‘88 and ‘89 in issues and conclusions herein, or of any served concurrently. He served Franklin County Jail when I was released. He failure to mention a matter of fact or approximately six months in jail, and is no more. I’ve learned from my mistakes law. was released on probation. Mr. and I’m a different person. It just won’t The Acting Deputy Administrator Bradford’s probation officer testified at happen again. I realize what is to be lost finds that James R. Bradford 1 is a the hearing in this matter that after one ** * I lost a thriving business. I lost my licensed pharmacist and the owner of year of probation, Mr. Bradford was livelihood. I lost the respect of the citizens Respondent pharmacy. In 1989, Mr. discharged from active supervision. of Franklin County. I lost my privilege of Bradford owned and operated Prince According to the probation officer, Mr. practicing the profession that I had trained Drug Store in Winchester, Tennessee. Bradford was ‘‘an exceptional for. I lost everything—everything except my family. And at times, it was even hard to face An investigation of Prince Drug Store probationer,’’ he has been rehabilitated, them. was conducted in March 1989. During a and he has not committed any further routine compliance inspection by the offenses. Mr. Bradford further testified that his Tennessee Board of Pharmacy The sheriff of Franklin County practice of pharmacy is different now (Pharmacy Board), it was noted that testified that while incarcerated, Mr. than it was in the late 1980’s. Judge there was an excessive amount of Bradford served as a trustee. Trustees Randall found that he credibly testified telephone prescriptions for controlled have work assignments and are selected that ‘‘[t]he patients in the late ‘80s—my substances. An investigator contacted because they are believed to be main objective was filling their some of the physicians whose names trustworthy. In the sheriff’s opinion, Mr. prescriptions, keeping them coming to appeared on the prescriptions and Bradford is rehabilitated. my store, and I did anything to do that. learned that the physicians had not On September 28, 1993, the Pharmacy Now my main objective is the safety and authorized the prescriptions. As a Board entered a Consent Order well-being of my patients.’’ According result, Mr. Bradford was arrested on reinstating Mr. Bradford’s pharmacist to Mr. Bradford, he now contacts May 2, 1989. license on condition that he perform physicians if he believes a patient is On June 15, 1989, investigators 160 hours of internship within two- overutilizing drugs and he does not obtained more records from months of the order and that he prematurely refill prescriptions. Respondent. After interviewing complete 15 hours of continuing Additionally, he currently participates approximately 20 physicians, the education. Mr. Bradford fulfilled these in managed care networks, and as a investigators calculated that Respondent conditions, and his license was result, if he tried to prematurely refill a dispensed over 60,000 dosage units of reinstated and placed on probation for prescription, the pharmacy’s computer controlled substances between January five years. One term of the probation would reject it and if he did refill the 1, 1988 and June 15, 1989, that were not was that Mr. Bradford could not serve prescription, he would not receive authorized by a physician. Of particular as the pharmacist in charge at a payment from the managed care note, unauthorized prescriptions pharmacy, but after two years he could network. accounting for approximately 5,500 petition the Pharmacy Board to remove The mayor of Estill Springs testified dosage units were dated after Mr. this restriction. that Respondent is the only pharmacy in Bradford’s arrest on May 2, 1989. Upon reinstatement of his pharmacist the town. The population of Estill Mr. Bradford was indicted in the license, a pharmacy submitted a request Springs is 1,500 to 1,600 people with Franklin County Circuit Court in to DEA for a waiver of 21 CFR approximately 60 percent of the Tennessee on one count each of illegally 1301.76(a), to permit Mr. Bradford to population retired. Some in the dispensing drugs, failure to keep drug work at the pharmacy with access to community lack transportation to be records, furnishing false and fraudulent controlled substances. In a letter dated able to frequent pharmacies outside of records, and obtaining controlled February 6, 1995, this request was Estill Springs. The mayor testified that substances by use of forged and altered denied based upon the fact that Mr. he considers Mr. Bradford to be an prescriptions. On July 28, 1989, Mr. Bradford would be unsupervised while outstanding professional with the Bradford pled guilty to all four felony working in the pharmacy. highest integrity and honesty. counts. On September 19, 1995, Mr. Bradford Respondent introduced into evidence On August 3, 1989, DEA served an entered into another Consent Order with the affidavit of an Estill Springs Order to Show Cause and Immediate the Pharmacy Board whereby the physician who stated that he is previous Consent Order was modified personally familiar with Mr. Bradford, 1 James R. Bradford was referred to as Dr. and Mr. Bradford’s authority to serve as his pharmacy practices, his conviction Bradford at various times throughout the transcript a pharmacist in charge was reinstated. for controlled substance violations, and of these proceedings and by Judge Randall in her On January 2, 1996, Mr. Bradford the actions by the Pharmacy Board. It is opinion. There is nothing in the record to indicate that he has a degree that warrants this title, and opened Respondent and subsequently the physician’s opinion that Mr. therefore he will be referred to as Mr. Bradford applied for a DEA registration for the Bradford displays ‘‘a high degree of throughout this final order. pharmacy. In the application for honesty, integrity and professionalism 58420 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices in the provision of pharmacy services to the manufacture, distribution, or Bradford has been rehabilitated. patients * * * [and] in relationships dispensing of controlled substances. Further, the Acting Deputy with other health care professionals.’’ (4) Compliance with applicable state, Administrator notes that Mr. Bradford Both Mr. Bradford and Respondent Federal, or local laws relating to appears to have kept abreast of changes possess state licenses issued by the controlled substances. in DEA’s regulations even though he has Pharmacy Board. In Tennessee, both the (5) Such other conduct which may not been handling controlled substances pharmacist and the pharmacy are threaten the public health or safety. since 1989. required to obtain a controlled These factors are to be considered in the As to factor three, it is undisputed substance registration. The Director of disjunctive; the Deputy Administrator that Mr. Bradford was convicted of four the Pharmacy Board testified at one may rely on any one or a combination felony counts related to his handling of point that Mr. Bradford’s controlled of factors and may give each factor the controlled substances. Regarding factor substance registration was reinstated by weight he deems appropriate in five, the Acting Deputy Administrator the Pharmacy Board with his determining whether a registration agrees with Judge Randall that the pharmacist license. However when later should be revoked or an application for record does not indicate any additional asked whether Respondent pharmacy registration denied. See Henry J. conduct that would threaten the public has a Tennessee controlled substance Schwarz, Jr., M.D., 54 FR 16,422 (1989). health or safety. license, he testified that ‘‘I’m sure they As to factor one, it is undisputed that The Acting Deputy Administrator probably don’t, but that’s because of the Mr. Bradford’s pharmacist license and concludes that the Government has absence of the DEA waiver, and he did the license of his previous pharmacy presented a prima facie case for denial not request that either.’’ Further, when were revoked through an Agreed Final of Respondent’s application for Order on September 27, 1989. In 1993, asked whether Mr. Bradford is licensed registration based upon Mr. Bradford’s Mr. Bradford’s pharmacist license was in the state to handle controlled unlawful dispensing of over 60,000 reinstated, but he was precluded from substances, the Director responded. ‘‘He dosage units of controlled substances, being the pharmacist in charge of a would be, but that was not requested, I his conviction, and the action of the pharmacy. Then, in 1995 all of Mr. don’t think. Without having his license Pharmacy Board. However, Mr. Bradford’s privileges were restored and in front of me, I couldn’t [say].’’ Bradford appears to be extremely he was on probation until September remorseful and to be rehabilitated. He Since there was no explanation for the 1998. has not engaged in any unlawful discrepancy in the Director’s testimony Regarding factors two and four, the conduct since 1989. Further, He and since the Government did not raise applicant’s experience in dispensing approaches the dispensing of drugs very lack of state authorization as an issue, controlled substances and compliance differently now than he did in 1989. He Judge Randall ‘‘assume[d] that [the with applicable laws relating to contacts a physician if he believes that Director’s] initial testimony about that controlled substances, Mr. Bradford’s a patient is using too much of a drug. the status of the state controlled dispensing practices while the owner Also, he participates in managed care substance registration is and pharmacist at Prince Drug Store are networks which causes his computer correct * * * [and] assume[d] that his relevant to these proceedings. DEA has system to reject a prescription if he tries testimony to the contrary was based on consistently held that a pharmacy to refill it prematurely. Finally, a misunderstanding of the question.’’ operates under the control of owners, Respondent is the only pharmacy in Therefore, Judge Randall found that stockholders, pharmacists, or other Estill Springs which has a population of Respondent pharmacy and Mr. Bradford employees, and that the conduct of approximately 1,500 people. Without a possess state authority to dispense these individuals is relevant in DEA registration, Respondent cannot controlled substances. The Acting evaluating a pharmacy’s fitness to be meet the needs of the community since Deputy Administrator agrees with Judge registered with DEA. See e.g., Rick’s it cannot dispense controlled Randall that based upon the Pharmacy Pharmacy, 62 FR 42,595 (1997); Big T substances. Therefore, the Acting Board Director’s testimony, there is Pharmacy, Inc., 47 FR 51,830 (1982). Deputy Administrator agrees with Judge confusion regarding the status of Mr. Bradford, the owner of Randall that it would be in the public Respondent’s state authorization to Respondent, admits that he dispensed interest to grant Respondent a DEA handle controlled substances. However, over 60,000 dosage units of controlled Certificate of Registration. as will be discussed further below, the substances without a physician’s However, the status of Respondent’s Acting Deputy Administrator disagrees authorization. As Judge Randall noted, state authorization to handle controlled with Judge Randall’s assumption that ‘‘[i]t is particularly troubling that Dr. substances is unclear. This is significant Respondent is authorized in Tennessee Bradford continued to dispense since DEA does not have the statutory to handle controlled substances. controlled substances without authority under the Controlled Pursuant to 21 U.S.C. 823(f), the authorization after his first arrest.’’ Substances Act to register a practitioner Deputy Administrator may deny any According to Mr. Bradford, he had unless that practitioner is authorized by application for a DEA Certificate of trouble saying ‘‘no’’ to his customers the state to handle controlled Registration if he determines that the and he did not want to lose any substances. See 21 U.S.C. 802(21) and registration would be inconsistent with business, so he dispensed drugs without 823(f). Given the Pharmacy Board the public interest. Section 823(f) authorization. Director’s testimony, there is confusion requires that the following factors be However, Mr. Bradford has accepted as to whether Respondent pharmacy is considered: responsibility for his actions and says in fact authorized by the State of (1) The recommendation of the that his main objective now is his Tennessee to handle controlled appropriate state licensing board or patients’ safety and well-being. He substances. Unlike Judge Randall, the professional disciplinary authority. recognizes how much he has to lose Acting Deputy Administrator does not (2) The applicant’s experience in should he unlawfully dispense assume that the pharmacy is properly dispensing, or conducting research with controlled substances again. In addition, licensed by the state. Therefore, the respect to controlled substances. the mayor of Estill Springs, the sheriff Acting Deputy Administrator concludes (3) The applicant’s conviction record of Franklin County and Respondent’s that Respondent pharmacy should be under Federal or state laws relating to probation officer all believe that Mr. issued a DEA Certificate of Registration Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58421 once it provides evidence to DEA that DEPARTMENT OF LABOR The petitioners or any other persons it is authorized to handle controlled showing a substantial interest in the substances in Tennessee. Employment and Training subject matter of the investigations may Administration request a public hearing, provided such Accordingly, the Acting Deputy request is filed in writing with the Administrator of the Drug Enforcement Investigations Regarding Certifications Acting Director, Office of Trade Administration, pursuant to the of Eligibility To Apply for Worker Adjustment Assistance, at the address authority vested in him by 21 U.S.C. 823 Adjustment Assistance shown below, not later than November and 824 and 28 CFR 0.100(b) and 0.104, Petitions have been filed with the 9, 1998. hereby orders that the application for a Secretary of Labor under Section 221(a) DEA Certificate of Registration Interested persons are invited to of the Trade Act of 1974 (‘‘the Act’’) and submitted by Bradford’s Pharmacy, be, submit written comments regarding the are identified in the Appendix to this and it hereby is granted upon receipt by subject matter of the investigations to notice. Upon receipt of these petitions, the Acting Director, Office of Trade the DEA Nashville office of evidence of the Acting Director of the Office of Adjustment Assistance, at the address the pharmacy’s state authorization to Trade Adjustment Assistance, shown below, not later than November handle controlled substances. This Employment and Training 9, 1998. order is effective November 30, 1998. Administration, has instituted The petitions filed in this case are investigations pursuant to Section Dated: October 23, 1998. available for inspection at the Office of Donnie R. Marshall, 221(a) of the Act. The purpose of each of the the Acting Director, Office of Trade Acting Deputy Administrator. investigations is to determine whether Adjustment Assistance, Employment [FR Doc. 98–29063 Filed 10–29–98; 8:45 am] the workers are eligible to apply for and Training Administration, U.S. BILLING CODE 4410±09±M adjustment assistance under Title II, Department of Labor, 200 Constitution Chapter 2, of the Act. The investigations Avenue, N.W., Washington, D.C. 20210. will further relate, as appropriate, to the Signed at Washington, D.C. this 5th day of determination of the date on which total October, 1998. or partial separations began or Grant D. Beale, threatened to begin and the subdivision Acting Director, Office of Trade Adjustment of the firm involved. Assistance.

APPENDIXÐPETITIONS INSTITUTED ON 10/05/98

Date of TA±W Subject firm (petitioners) Location petition Product(s)

35,040 ...... Clarks Co., N.A. (The) (Comp) ...... Kennett Square, PA .... 09/25/98 Office Management for WV Mfg Facility. 35,041 ...... JRF Enterprises (Wrks) ...... Scottsboro, AL ...... 09/21/98 T-Shirts and Sweatshirts. 35,042 ...... Western Iron Works, Inc (Comp) ...... San Angelo, TX ...... 09/22/98 Gray Iron Castings, Rings and Lids. 35,043 ...... Louis Allis Co (IUE) ...... Milwaukee, WI ...... 09/14/98 Motors and Generators. 35,044 ...... Givens Industries, Inc (Comp) ...... Moulton, AL ...... 09/21/98 Shirts and Pants for Men's and Women's. 35,045 ...... Summit Station Mfg. (UNITE) ...... Pine Grove, PA ...... 09/22/98 Fleece Sportswear. 35,046 ...... Gates Power Drive Product (Comp) ...... Dothan, AL ...... 09/18/98 Automotive Pulleys, Idlers and Tensioners. 35,047 ...... Beacon Looms, Inc (Comp) ...... Teaneck, NJ ...... 09/18/98 Curtains and Bedding Products. 35,048 ...... Beacon Looms, Inc (Comp) ...... Beacon, NY ...... 09/18/98 Curtains and Bedding Products. 35,049 ...... Borden Foods Corp (Comp) ...... Tolleson, AZ ...... 09/23/98 Dry Pasta. 35,050 ...... Leather Specialty Co (Wrks) ...... Cincinnati, OH ...... 09/16/98 File Inserts for Attache Cases. 35,051 ...... Merix Corp (Comp) ...... Forest Grove, OR ...... 09/05/98 Advanced Printed Circuit Boards. 35,052 ...... Preferred Electronic, Inc. (Wrks) ...... Somerville, CT ...... 09/08/98 Transformers, Power Supplies. 35,053 ...... Spartan Mills (Wkrs) ...... Startex, SC ...... 09/05/98 Fabric for Wallpaper Backing and Fur- niture. 35,054 ...... Malden Mills Industries (UNITE) ...... Bridgton, ME ...... 09/25/98 Polartec and Polarfleece Textiles. 35,055 ...... Courtland Manufacturing (Wrks) ...... Appomattox, VA ...... 09/22/98 Ladies' and Childrens' Apparel. 35,056 ...... Halliburton Energy Serv. (Comp) ...... Houston, TX ...... 09/28/98 Oil and Gas Exploration. 35,057 ...... Connex Pipe Systems (Comp) ...... Troutville, VA ...... 09/22/98 Pipe Fabrication. 35,058 ...... UCAR Carbon Co., Inc (OCAW) ...... Clarksburg, WV ...... 09/24/98 Elecrodes. 35,059 ...... Textron Turf Care (UAW) ...... Racine, WI ...... 09/23/98 Turf Equipment for Golf Cources. 35,060 ...... Schlumberger (Wrks) ...... Rowell, NM ...... 09/15/98 Oil Drilling. 35,061 ...... Photran Corp. (Wrks) ...... Lakeville, MN ...... 09/21/98 Coated Glass. 35,062 ...... Chicago Rawhide (Comp) ...... Gastonia, NC ...... 09/24/98 Sealing Devices. 35,063 ...... Apehead Mfg., Inc. (Wrks) ...... Cookeville, TN ...... 09/21/98 Protective Padding, Baseball Softball. 35,064 ...... Martech Medical (Wrks) ...... Harleysville, PA ...... 09/11/98 Medical Products. 35,065 ...... Cape Cod Sportswear (UNITE) ...... New Bedford, MA ...... 09/24/98 Ladies' Jackets. 35,066 ...... Funtime Sportswear (Wrks) ...... Moscow, PA ...... 09/24/98 Sports Garments for Sara Lee Knit. 35,067 ...... General Electric (EMD) (Wrks) ...... Coshocton, OH ...... 09/26/98 Copper Clad Laminates. 58422 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

[FR Doc. 98–29170 Filed 10–29–98; 8:45 am] instituted investigations pursuant to Interested persons are invited to BILLING CODE 4310±30±M Section 221(a) of the Act. submit written comments regarding the The purpose of each of the subject matter of the investigations to investigations is to determine whether the Acting Director, Office of Trade DEPARTMENT OF LABOR the workers are eligible to apply for Adjustment Assistance, at the address adjustment assistance under Title II, shown below, not later than November Employment and Training Chapter 2, of the Act. The investigations 9, 1998. Administration will further relate, as appropriate, to the determination of the date on which total The petitions filed in this case are Investigations Regarding Certifications or partial separations began or available for inspection at the Office of of Eligibility to Apply for Worker threatened to begin and the subdivision the Acting Director, Office of Trade Adjustment Assistance of the firm involved. Adjustment Assistance, Employment The petitioners or any other persons and Training Administration, U.S. Petitions have been filed with the showing a substantial interest in the Department of Labor, 200 Constitution Secretary of Labor under Section 221(a) subject matter of the investigations may Avenue, N.W., Washington, D.C. 20210. of the Trade Act of 1974 (‘‘the Act’’) and request a public hearing, provided such Signed at Washington, D.C. this 13th day are identified in the Appendix to this request is filed in writing with the of October, 1998. notice. Upon receipt of these petitions, Acting Director, Office of Trade the Acting Director of the office of Trade Adjustment Assistance, at the address Grant D. Beale, Adjustment Assistance, Employment shown below, not later than November Acting Director, Office of Trade Adjustment and Training Administration, has 9, 1998. Assistance.

APPENDIX.ÐPETITIONS INSTITUTED ON 10/13/98

Date of TA±W Subject firm (petitioners) Location petition Product(s)

35,068 ...... M. Fine and Sons Mfg Co (Wkrs) ...... Louisville, KY ...... 10/01/98 Jeans. 35,069 ...... Greenwick Air Services (Wkrs) ...... Miami, FL ...... 05/28/98 Jet Engines. 35,070 ...... CTS of Bentonville (Wkrs) ...... Bentonville, AR ...... 09/30/98 Resistors. 35,071 ...... Viskase Corp (Wkrs) ...... Chicago, IL ...... 10/02/98 Casings and Plastic Wrappings. 35,072 ...... Lone Star Steel (USWA) ...... Lone Star, TX ...... 09/29/98 Oilfield Tubular Goods. 35,073 ...... Camptown Togs, Inc (Co.) ...... Clanton, AL ...... 09/24/98 Boys', Girls' & Infants' Apparel. 35,074 ...... Woodwork Corp. of America (Wkrs) ...... Merrill, WI ...... 09/28/98 Synthetic Bowling Lanes. 35,075 ...... Cross Creek Apparel (Co.) ...... Mt. Airy, NC ...... 09/25/98 Light and Heavy Weight Fleecewear. 35,076 ...... VulcanÐBrunswick (Wkrs) ...... Antigo, WI ...... 09/28/98 Bowling Pins. 35,077 ...... William Carter Co (The) (Wkrs) ...... Centreville, MS ...... 09/22/98 Infant's and Children's Garments. 35,078 ...... BWD Automotive of Alabama (Wkrs) ...... Selma, AL ...... 09/24/98 Automotive Switches, Ignition, Locks. 35,079 ...... G.E. Industrial Systems (Wkrs) ...... Erie, PA ...... 09/24/98 DC Motors and Component Parts. 35,080 ...... International Assembly (Co.) ...... Tucson, AZ ...... 10/02/98 Computers. 35,081 ...... Fabcare, Inc (Co.) ...... Pickwick Dam, TN ...... 09/24/98 Denim Apparel Laundry Chemicals. 35,082 ...... Gibeck, Inc (Wkrs) ...... Indianapolis, IN ...... 09/22/98 Plastic Tubes for Breathing Circuits. 35,083 ...... Union Apparel, Inc/ (UNITE) ...... Novelt, PA ...... 09/22/98 Men's & Ladies' Sportcoats. 35,084 ...... MascoTech (UAW) ...... Fraser, MI ...... 10/02/98 Steel Forgings for Auto Industry. 35,085 ...... Integrated Circuit System (Co.) ...... Norristown, PA ...... 10/01/98 Electronic Circuits. 35,086 ...... North Star Steel (USWA) ...... Vidor, TX ...... 09/29/98 Wire Rods. 35,087 ...... Crown Cork and Seal (Wkrs) ...... Arlington, TX ...... 09/29/98 Plastic Lines Bottle Caps. 35,088 ...... Horace Small (Wkrs) ...... Brownsville, TX ...... 10/02/98 Uniform Apparel. 35,089 ...... Trans Texas Gas (Co.) ...... Houston, TX ...... 09/30/98 Oil and Gas. 35,090 ...... Mead Paper (Wkrs) ...... Rumford, ME ...... 10/05/98 Publishing and Specialty Paper. 35,091 ...... Miller Golf Bags (Wkrs) ...... Walnut Ridge, AR ...... 09/28/98 Golf Bags and Duffle Bags. 35,092 ...... Eastland Shoe Mfg Corp. (Co.) ...... Freeport, ME ...... 10/06/98 Men's Ladies' Shoes, Boots and Sandals.

[FR Doc. 98–29169 Filed 10–29–98; 8:45 am] (NAFTA–TAA), have been filed with investigations are to determine whether BILLING CODE 4310±30±M State Governors under Section 250(b)(1) the workers separated from employment of Subchapter D, Chapter 2, Title II, of of after December 8, 1993 (date of the Trade Act of 1974, as amended, are enactment of P.L. 103–182) are eligible DEPARTMENT OF LABOR identified in the Appendix to this to apply for NAFTA–TAA under Notice. Upon notice from a Governor Subchapter D of the Trade Act because Employment and Training that a NAFTA–TAA petition has been Administration of increased imports from or the shift in received, the Acting Director of the production to Mexico or Canada. Investigations Regarding Certifications Office Trade Adjustment Assistance (OTAA), Employment and Training The petitioners or any other persons of Eligibility to Apply for NAFTA showing a substantial interest in the Transitional Adjustment Assistance Administration (ETA), Department of Labor (DOL), announces the filing of the subject matter of the investigations may request a public hearing with the Acting Petitions for transitional adjustment petition and takes actions pursuant to paragraphs (c) and (e) of Section 250 of Director of OTAA at the U.S. assistance under the North American Department of Labor (DOL) in Free Trade Agreement—Transitional the Trade Act. Washington, DC provided such request Adjustment Assistance Implementation The purpose of the Governor’s actions is filed in writing with the Acting Act (P.L. 103–182), hereinafter called and the Labor Department’s Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58423

Director of OTAA not later than shown below not later than November 9, Signed at Washington, DC this 22nd day of November 9, 1998. 1998. October, 1998. Also, interested persons are invited to Petitions filed with the Governors are Grant D. Beale, submit written comments regarding the available for inspection at the Office of Acting Director, Office of Trade Adjustment the Acting Director, OTAA, ETA, DOL, subject matter of the petitions to the Assistance. Room C–4318, 200 Constitution Acting Director of OTAA at the address Avenue, NW., Washington, DC 20210.

APPENDIX

Date re- ceived at Subject firm Location Governor's Petition No. Articles produced office

Gillette Company (The) (USWA) ..... Janesville, WI ...... 04/27/1998 NAFTA±2,354 Writing instruments (pens, ink pencils). Megas Beauty Care (Co.) ...... Sparks, NV ...... 03/31/1998 NAFTA±2,355 Cotton balls & coils, chimneystack pads. Escalator handrail USA (Wkrs) ...... Orchard Park, NY ...... 04/30/1998 NAFTA±2,356 Escalator handrails. J.C. Viramontes (Wkrs) ...... El Paso, TX ...... 04/30/1998 NAFTA±2,357 Denim apparel. Western Reserve Products (Wkrs) .. Gallatin, TN ...... 04/23/1998 NAFTA±2,358 Plastic window frames for doors. Meyer Tomatoes (IBT) ...... King City, CA ...... 04/27/1998 NAFTA±2,359 Tomatoes. VF Knitwear (Co.) ...... Hillsville, VA ...... 05/04/1998 NAFTA±2,360 T-shirts and fleece wear. VF Knitwear (Co.) ...... Stuart, VA ...... 05/04/1998 NAFTA±2,360 T-shirts and fleece wear. Gateway Sportswear (Wkrs) ...... Masontown, PA ...... 05/01/1998 NAFTA±2,361 Women's pants, skirts, and t-shirts. Rotadyne (Wkrs) ...... Lancaster, NY ...... 05/01/1998 NAFTA±2,362 Recovering of print rollers. Sheldahl (Wkrs) ...... Aberdeen, SD ...... 04/30/1998 NAFTA±2,363 Electronic circuit boards. Paper Magic Group (The) (Wkrs) .... Scranton, PA ...... 04/30/1998 NAFTA±2,364 Halloween masks. Breed Technologies (Co.) ...... Brownsville, TX ...... 04/27/1998 NAFTA±2,365 Seat belts and air bags. Breed Technologies (Co.) ...... El Paso, TX ...... 04/27/1998 NAFTA±2,365 Seat belts and air bags. Breed Technologies (Co.) ...... Douglas, AZ ...... 04/29/1998 NAFTA±2,366 Seat belts and air bags. Independent Order of Foresters San Diego, CA ...... 05/04/1998 NAFTA±2,367 Life insurance services. (Wkrs). U.S. Timber (Wkrs) ...... Boise, ID ...... 04/27/1998 NAFTA±2,368 Appearance boards (siding, flooring etc). VF Knitwear (Co.) ...... Bakersville, NC ...... 05/04/1998 NAFTA±2,369 T-shirts and fleece wear. VF Knitwear (Co.) ...... Kinston, NC ...... 05/04/1998 NAFTA±2,369 T-shirts and fleece wear. Garland Commercial Industries Freeland, PA ...... 05/06/1998 NAFTA±2,370 Commercial cooking equipment. (Co.). Toroplast (Wkrs) ...... McAllen, TX ...... 05/05/1998 NAFTA±2,371 Plastic seat belts housing. Sinclair Technologies (CWA) ...... Tonawanda, NY ...... 05/06/1998 NAFTA±2,372 Communications base station equipment. EEX Corporation (Wkrs) ...... Houston, TX ...... 05/06/1998 NAFTA±2,373 Crude oil. EEX Corporation (Wkrs) ...... Throughout the State of, 05/06/1998 NAFTA±2,373 Crude oil. LA. EEX Corporation (Wkrs) ...... Throughout the State of, 05/06/1998 NAFTA±2, 373 Crude oil. MS. EEX Corporation (Wkrs) ...... Throughout the State of, 05/06/1998 NAFTA±2, 373 Crude oil. NY. EEX Corporation (Wkrs) ...... Throughout the State of, 05/06/1998 NAFTA±2, 373 Crude oil. WA. Towne and Country (Co.) ...... Lugoff, SC ...... 05/07/1998 NAFTA±2, 374 Ladies' sportswear. Dawn (Co.) ...... Lugoff, SC ...... 05/07/1998 NAFTA±2, 374 Ladies' sportswear. Transcity Terminal Warehouse Indianapolis, IN ...... 04/05/1998 NAFTA±2, 375 Warehousing and storage. (IBT). Horton Company (The) (UAW) ...... Jackson, MI ...... 04/23/1998 NAFTA±2, 376 Automotive components (drive & steering). Cott Manufacturing (Wkrs) ...... West Mifflin, PA ...... 05/11/1998 NAFTA±2, 377 Line indentification markers. American Lantern (USWA) ...... Newport, AR ...... 04/30/1998 NAFTA±2, 378 Lighting fixtures. Boise Cascade (WCIU) ...... Emmett, ID ...... 05/07/1998 NAFTA±2, 379 Plywood. Boise Cascade (WCIU) ...... Emmett, ID ...... 05/07/1998 NAFTA±2, 379 Softwood dismensional lumber. Boise Cascade (WCIU) ...... Cascade, ID ...... 05/07/1998 NAFTA±2, 379 Lumber. Boise Cascade (WCIU) ...... Horseshoe, ID ...... 05/07/1998 NAFTA±2, 379 Lumber. Kimberly Clark (Co.) ...... Del Rio, TX ...... 05/11/1998 NAFTA±2, 380 Nurses caps, shoe covers & stockinettes. Hasbro Manufacturing Services El Paso, TX ...... 05/11/1998 NAFTA±2, 381 Toys. (Co.). Berg Electronics (Wkrs) ...... Clearfield, PA ...... 05/12/1998 NAFTA±2, 382 Electronic connectors. Tops MaliBU (Wkrs) ...... Eugene, OR ...... 05/12/1998 NAFTA±2, 383 Novelty candles. MPM Automotive Products (Co.) ..... TuCSon, AZ ...... 05/13/1998 NAFTA±2, 384 Marketing of remanufacturing auto parts. Code alarm (Wkrs) ...... Georgetown, TX ...... 05/14/1998 NAFTA±2, 385 Wire harnesses for car alarms. Jostens Photography (Co.) ...... Webster, NY ...... 05/13/1998 NAFTA±2, 386 School photographs. GL&V Black Clawson-Kennedy Watertown, NY ...... 05/13/1998 NAFTA±2, 387 Machine paper rolls and dryers. (IAMAW). Paul-Son Gaming Supplies (Wkrs) Las Vegas, NV ...... 05/08/1998 NAFTA±2, 388 Playing cards. Gates Rubber Company (The) (Co.) Jefferson, NC ...... 05/12/1998 NAFTA±2, 389 Vulcoflex vehicular coolant hoses. Tri Clover (IAMAW) ...... KenOsha, WI ...... 05/18/1998 NAFTA±2, 390 Tubular fittings. Buena Vista (Wkrs) ...... Buena Vista, VA ...... 05/14/1998 NAFTA±2, 391 T-shirts, fleece sweatshirts. Wausau Mosinee Paper (Co.) ...... Rhinelander, WI ...... 05/15/1998 NAFTA±2,392 Technical specialty paper. Alps Electric (USA) (Co.) ...... Huntington Beach, CA ...... 03/12/1998 NAFTA±2,393 Keycaps & plastic parts for computers. Oxford Industries (Co.) ...... Wadley, GA ...... 05/18/1998 NAFTA±2,394 Men's dress shirts. 58424 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

APPENDIXÐContinued

Date re- ceived at Subject firm Location Governor's Petition No. Articles produced office

Phillips Van Heusen (Co.) ...... Geneva, AL ...... 05/18/1998 NAFTA±2,395 Men's dress and casual shirts. Phillips Van Heusen (Co.) ...... Ozark, AL ...... 05/18/1998 NAFTA±2,395 Men's dress and casual shirts. Phillips Van Heusen (Co.) ...... Augusta, AR ...... 05/14/1998 NAFTA±2,396 Men's dress and casual shirts. Siebe Appliance Controls (Co.) ...... New Stanton, PA ...... 05/18/1998 NAFTA±2,397 Appliance controls. Americold Logistics (Wkrs) ...... Nampa, ID ...... 05/13/1998 NAFTA±2,398 Packaging & storage of frozen potatoes. Robertshaw Controls (Co.) ...... Long Beach, CA ...... 05/18/1998 NAFTA±2,399 Gas heating control valves. Triquest Precision Plastics (Co.) ..... Vancouver, WA ...... 05/18/1998 NAFTA±2,400 Molded plastic housings for computers. Stella Foods (Wkrs) ...... Green Bay, WI ...... 05/18/1998 NAFTA±2,401 Administration duties. Kleinert's Inc. of Florida (Co.) ...... Largo, FL ...... 05/18/1998 NAFTA±2,402 Infants apparel. Eastman Kodak (Co.) ...... Rochester, NY ...... 05/15/1998 NAFTA±2,403 Film, black & white photographic paper. Hovland Manufacturing (Co.) ...... Cody, WY ...... 05/19/1998 NAFTA±2,404 Women's denim jeans. Price Pfister (IBT) ...... Pacoima, CA ...... 05/21/1998 NAFTA±2,405 Plumbing fixtures. Koehler Manufacturing (Co.) ...... Marlborough, MA ...... 05/20/1998 NAFTA±2,406 Battery powered portable lighting. G.F. Wright Steel and Wire (USWA) Worcester, MA ...... 05/20/1998 NAFTA±2,407 Woven hardware clothes. Willamette Industries (WCIW) ...... Eugene, OR ...... 05/18/1998 NAFTA±2,408 Softwood lumber. JPM Company (The) (Co.) ...... Winnsboro, SC ...... 05/20/1998 NAFTA±2,409 Cable assemblies and wire harnesses. Taylor Precision Products (Co.) ...... Fletcher, NC ...... 05/20/1998 NAFTA±2,410 Rain gauges and patio dials. Kowa Printing (GCIU) ...... Danville, IL ...... 05/21/1998 NAFTA±2,411 Printing business forms, booklets, books. St. Gobain (OCAW) ...... Keasbey, NJ ...... 05/22/1998 NAFTA±2,412 Refractories. S.T. and E (Co.) ...... Punxsutawney, PA ...... 05/26/1998 NAFTA±2,413 Transportation services. Sunds Defibrator Woodhandling Carthage, NY ...... 05/26/1998 NAFTA±2,414 Woodchippers machines. (IAMAW). Halmode Apparel (Co.) ...... New Castle, VA ...... 04/12/1998 NAFTA±2,415 Maternity dresses, nurses uniforms. Turner and Minter (Co.) ...... Eagle Rock, VA ...... 04/12/1998 NAFTA±2,415 Maternity dresses, nurses uniforms. Eaton Corporation (Co.) ...... Salisbury, MD ...... 05/18/1998 NAFTA±2,416 Circuit breakers for industrial. Idea Courier (Wkrs) ...... Phoenix, AZ ...... 05/26/1998 NAFTA±2,417 Printed circuit boards. Celanese (UNITE) ...... Narrows, VA ...... 05/26/1998 NAFTA±2,418 Acetate tow and acetate filament. Strategic Finishing (Wkrs) ...... Tualatin, OR ...... 05/26/1998 NAFTA±2,419 Painting and metalizing. ITT Cannon Connectors North Nogales, AZ ...... 05/26/1998 NAFTA±2,420 Receiving & inspection connectors. America (Co.). Ohmite (UPIU) ...... Huntington, IN ...... 05/29/1998 NAFTA±2,421 Passive electronic components-resistors. MacMillan Bloedel Building Mate- Spokane, WA ...... 06/01/1998 NAFTA±2,422 Reselling of lumber & lumber products. rials (Wkrs). Nutri-Metics International (USA) Cerritos, CA ...... 06/01/1998 NAFTA±2,423 Packing & shipping of skincare products. (Wkrs). Datagold (Wkrs) ...... Mocanaqua, PA ...... 06/02/1998 NAFTA±2,424 Pocket file folders. Philips Components (Wkrs) ...... Saugerties, NY ...... 06/02/1998 NAFTA±2,425 Soft ferrite cores. Virginia Apparel (Wkrs) ...... Rocky Mount, VA ...... 05/28/1998 NAFTA±2,426 Men's & women's cotton shorts & pants. Run Graphic Communicators Portland, OR ...... 06/02/1998 NAFTA±2,427 Commercial printing. (Wkrs). Forest Furniture (Co.) ...... Lapine, OR ...... 06/02/1998 NAFTA±2,428 Pine furniture. Cowtown Boots (Wkrs) ...... El Paso, TX ...... 06/02/1998 NAFTA±2,429 Western-style boots. J.L. Clark (MPWU) ...... Downers Grove, IL ...... 06/08/1998 NAFTA±2,430 Collapsible aluminum tubes. Crown Pacific Limited Partnership Sandpoint, ID ...... 06/08/1998 NAFTA±2,431 Lumber types and products. (IAMAW). Champion Pacific Timberlands (Co.) Lebanon, OR ...... 06/04/1998 NAFTA±2,432 Seedings. BTR Sealing Systems (UNITE) ...... Maryville, TN ...... 06/03/1998 NAFTA±2,433 Weather stripping & rubber doorseals. Magnetek (Co.) ...... Prairie Grove, AR ...... 06/05/1998 NAFTA±2,434 Fractional horsepower electric motors. Allied Systems (Co.) ...... Sherwood, OR ...... 06/08/1998 NAFTA±2,435 Tree skidders and winches. Wells Lamont (The) (Co.) ...... El Paso, TX ...... 06/04/1998 NAFTA±2,436 Cut leather for gloves. Henderson Sewing Machine (Co.) .. Andalusia, AL ...... 06/09/1998 NAFTA±2,437 Sewing machines. Henderson Sewing Machine (Co.) .. Multrie, GA ...... 06/09/1998 NAFTA±2,437 Sewing machines. Henderson Sewing Machine (Co.) .. Maryville, TN ...... 06/09/1998 NAFTA±2,437 Sewing machines. Gould Electronics (IBEW) ...... Newburyport, MA ...... 06/09/1998 NAFTA±2,438 Electrical fuses. Gould Electronics (IBEW)) ...... El Paso, TX ...... 06/09/1998 NAFTA±2,438 Electrical fuses. Berg Electronics Group (IBEW) ...... Franklin, IN ...... 06/05/1998 NAFTA±2,439 Radio frequency connectors. Rexworks (USWA) ...... Milwaukee, WI ...... 06/10/1998 NAFTA±2,440 Cement mixers. B and V Enterprises (Wkrs) ...... Springdale, AR ...... 05/19/1998 NAFTA±2,441 Embroidered t-shirts & sweat shirts. Intercraft (Wkrs) ...... Statesville, NC ...... 06/05/1998 NAFTA±2,442 Picture frames. Raytheon Systems (UPIU) ...... Fort Wayne, IN ...... 06/15/1998 NAFTA±2,443 Out door units. McCabe Packing (Co.) ...... Springfield, IL ...... 06/10/1998 NAFTA±2,444 Beef carcasses. Brunswick Bicycles (Co.) ...... Effingham, IL ...... 06/12/1998 NAFTA±2,445 Bicycles. BASF (Wkrs) ...... Santa Ana, CA ...... 06/11/1998 NAFTA±2,446 Polystyrene pellets. Nocona Boot (Co.) ...... Nocona, TX ...... 04/30/1998 NAFTA±2,447 Western boots. Kemet Electronics (Co.) ...... Simpsonville, SC ...... 06/22/1998 NAFTA±2,448 Tantalum capacitors. Kemet Electronics (Co.) ...... Fountain Inn, SC ...... 06/22/1998 NAFTA±2,448 Tantalum capacitors. Heinz Pet Products (Wkrs) ...... Kankakee, IL ...... 06/22/1998 NAFTA±2,449 Dog food & pet treats. Willamette Industries (Co.) ...... Saginaw, OR ...... 06/18/1998 NAFTA±2,450 Softwood laminated beams. Teledyne Electronic Technologies Scottsdale, AZ ...... 06/17/1998 NAFTA±2,451 Industrial solid state relays. (Co.). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58425

APPENDIXÐContinued

Date re- ceived at Subject firm Location Governor's Petition No. Articles produced office

Tarantola Trucking (IBT) ...... Flemington, NJ ...... 06/18/1998 NAFTA±2,452 Transportation and distribution. Accuride (UAW) ...... Henderson, KY ...... 06/15/1998 NAFTA±2,453 Tubed wheel. General Electric (IUE) ...... Memphis, TN ...... 06/17/1998 NAFTA±2,454 Miniature lamps & halogen lamps. Gorge Lumber (Co.) ...... Portland, OR ...... 06/16/1998 NAFTA±2,455 Lumber boards. Durotest Lighting (IUE) ...... Clifton, NJ ...... 06/11/1998 NAFTA±2,456 Lamps (incandescent and fluorescent units). National Garment (Wkrs) ...... Columbia, MO ...... 06/18/1998 NAFTA±2,457 Children's clothing. Trident Automotive (Co.) ...... Blytheville, AR ...... 06/16/1998 NAFTA±2,458 Automotive cables. Bennett Uniform (Co.) ...... Greensboro, NC ...... 06/22/1998 NAFTA±2,459 Uniform clothing. Unity Knitting Mills (Wkrs) ...... Wadesboro, NC ...... 06/25/1998 NAFTA±2,460 Thermal undershirts & drawers & t-shirts. Kellerman Logging (Wkrs) ...... Joseph, OR ...... 06/23/1998 NAFTA±2,461 Various stages of logging. Alcoa Fujikura (Co.) ...... El Paso, TX ...... 06/23/1998 NAFTA±2,462 Wire harnesses. Triple A In The USA (Co.) ...... Bellaire, OH ...... 06/23/1998 NAFTA±2,463 Ladies swimwear and sportswear. International Jensen (Co.) ...... Lumberton, NC ...... 06/29/1998 NAFTA±2,464 Automotive loud loudspeakers. Paragon Electric (IBEW) ...... Two Rivers, WI ...... 06/26/1998 NAFTA±2,465 Motor controls. Sanyo E and E (Co.) ...... San Diego, CA ...... 06/24/1998 NAFTA±2,466 Refrigerators and freezers. J.E. Morgan Knitting Mills (Wkrs) .... Gilbertsville, PA ...... 06/24/1998 NAFTA±2,467 Thermal underwear. Pennsylvania Textile (UNITE) ...... West Hazleton, PA ...... 06/30/1998 NAFTA±2,468 Dyed and finished fabric. Columbia Lighting (IBEW) ...... Houston, TX ...... 06/25/1998 NAFTA±2,469 Fluorescent lighting fixtures. American Meter (IUE) ...... Erie, PA ...... 06/30/1998 NAFTA±2,470 Gas meters. Angelica Image Apparel (Co.) ...... Waynesboro, TN ...... 06/25/1998 NAFTA±2,471 Men's and women's work pants and shirts. General Instrument (Co.) ...... Hickory, NC ...... 07/02/1998 NAFTA±2,472 Digital satellite integrated receivers. Pfaltzgraff Company (The) (Wkrs) .. Bendersville, PA ...... 06/30/1998 NAFTA±2,473 Stoneware and dinnerware. Pfaltzgraff Company (The) (Wkrs) .. Dove, PA ...... 06/30/1998 NAFTA±2,473 Stoneware and dinnerware. Pfaltzgraff Company (The) (Wkrs) .. York, PA ...... 06/30/1998 NAFTA±2,473 Stoneware and dinnerware. Pfaltzgraff Company (The) (Wkrs) .. Thomasville, PA ...... 06/30/1998 NAFTA±2,473 Stoneware and dinnerware. Johnson Controls (UAW) ...... Greenfield, OH ...... 07/07/1998 NAFTA±2,474 Foam armrests and headrests. Klamath Veneer (Wkrs) ...... Klamath Falls, OR ...... 06/30/1998 NAFTA±2,475 Green and day veneer products. Johnson and Johnson Medical (Co.) Menlo Park, CA ...... 07/03/1998 NAFTA±2,476 Intravenous specialty catheters. Bosch Automotive Motor Systems Hendersonville, TN ...... 06/29/1998 NAFTA±2,477 Fractional horsepower DC motor. (Co.). Sivaco New York (USWA) ...... Tonawanda, NY ...... 06/26/1998 NAFTA±2,478 Steel wire. Therm-O-Disc (Co.) ...... Honeoye Falls, NY ...... 06/26/1998 NAFTA±2,479 Water flow products. Kodak Polychrome Graphics Binghamton, NY ...... 07/06/1998 NAFTA±2,480 Film (pre-press & printing industry). (ICWU). Parker Hannifin (Wkrs) ...... Niles, IL ...... 07/06/1998 NAFTA±2,481 Hydraulic valves. Lucas Variety (UAW) ...... Mt. Vernon, OH ...... 07/07/1998 NAFTA±2,482 Brake drums & caplipers. Crown Cork and Seal (Co.) ...... Arden, NC ...... 07/07/1998 NAFTA±2,483 Metal containers (tin cans). Johnson Controls (Wkrs) ...... Pulaski, TN ...... 07/02/1998 NAFTA±2,484 Foram headrests and armrests. Midwest Folding Carton (UNITE) .... Rockford, MI ...... 06/01/1998 NAFTA±2,485 Paperboard. Bindicator (Wkrs) ...... Port Hurton, MI ...... 06/15/1998 NAFTA±2,486 Level instruments. Walbro (UAW) ...... Cass City, MI ...... 07/02/1998 NAFTA±2,487 Small enginers carburetors. Boydston and Franzen Service Cody, WY ...... 07/09/1998 NAFTA±2,488 Crude oil and natural gas. (Co.). Control Elements (Wkrs) ...... Portland, OR ...... 07/08/1998 NAFTA±2,489 Control valves. TKC Apparel (Wkrs) ...... Reidsville, GA ...... 07/06/1998 NAFTA±2,490 Ladies knit tops and shirts. Corel (Wkrs) ...... Orem, UT ...... 07/03/1998 NAFTA±2,491 Master disks. Union Special Corporation (Wkrs) ... Charlotte, NC ...... 07/08/1998 NAFTA±2,492 Automated industrial sewing systems. Allied Signal (Co.) ...... Columbia, SC ...... 07/09/1998 NAFTA±2,493 Drawtwist nylon yarn. Gilroy Canning (IBT) ...... Gilroy, CA ...... 07/08/1998 NAFTA±2,494 Processes tomatoes in paste & puree form. M and J Clothing Sample (Wkrs) .... El Paso, TX ...... 07/03/1998 NAFTA±2,495 Men's and women's apparel. Bibb Corporation (Wkrs) ...... Roanoke Rapids, NC ...... 07/09/1998 NAFTA±2,496 Textile fabrics (terrycloth & napery). Ball Foster Glass Container, L.L.C. Port Allegany, PA ...... 07/13/1998 NAFTA±2,497 Glass containers for baby foods. (IGMPP). Amron L.L.C. (IAMAW) ...... Waukesha, WI ...... 07/13/1998 NAFTA±2,498 Medium caliber ordnance. Sheldahl (Co.) ...... Northfield, MN ...... 07/13/1998 NAFTA±2,499 Flexible printed circuitry. Group Genesis (Wkrs) ...... Marion, OH ...... 07/13/1998 NAFTA±2,500 Sailplane. Bon Worth (Co.) ...... Spindale, NC ...... 07/07/1998 NAFTA±2,501 Ladies' apparel (tops, pants, shorts). Henry I. Siegel (Co.) ...... Hickman, KY ...... 07/09/1998 NAFTA±2,502 Men's & women's denim jeans & slack. Gurien Finishing (Co.) ...... Union City, TN ...... 07/13/1998 NAFTA±2,503 Jeans. Fleer Corporation (Wkrs) ...... Mt. Laurel, NJ ...... 07/16/1998 NAFTA±2,504 Confectionary products. Homemaker Industries (Co.) ...... Athens, TN ...... 07/16/1998 NAFTA±2,505 Braided rugs. Spray Air USA and Alida Group Grangeville, ID ...... 07/20/1998 NAFTA±2,506 Sprayers and components. (Wkrs). Weslock Brand (Co.) ...... Compton, CA ...... 07/19/1998 NAFTA±2,507 Residential door locks. Guest Enterprises L.L.C. (Wkrs) ..... Brownsville, TX ...... 07/19/1998 NAFTA±2,508 Cut cloth & distribute finished garments. National Textiles (Co.) ...... Morganton, NC ...... 07/19/1998 NAFTA±2,509 Jersey and fleece casualwear apparel. Bunn Manufacturing (Wkrs) ...... Wilson, NC ...... 07/16/1998 NAFTA±2,510 Children's jeans. Hubbell Premise Wiring (Wkrs) ...... Marion, NC ...... 07/16/1998 NAFTA±2,511 Circuit boards, adapter & computer cable. 58426 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

APPENDIXÐContinued

Date re- ceived at Subject firm Location Governor's Petition No. Articles produced office

Koret of California (UNITE) ...... Price, UT ...... 07/09/1998 NAFTA±2,512 Women's apparel (skirts, slacks, jacket). Crump Wilson Shields Commission National Stockyards, IL ..... 07/15/1998 NAFTA±2,513 Services to buyers of livestock. (Wkrs). Coats American (Co.) ...... El Paso, TX ...... 07/21/1998 NAFTA±2,514 Distribution of thread and zippers. Syroco (Wkrs) ...... Siloam Springs, AR ...... 07/22/1998 NAFTA±2,515 Patio chairs. General Electric (Wkrs) ...... Solvay, NY ...... 07/14/1998 NAFTA±2,516 Electricity. General Electric (Wkrs) ...... Beaver Fall, NY ...... 07/14/1998 NAFTA±2,516 Electricity. General Electric (Wkrs) ...... Gouvernuer, NY ...... 07/14/1998 NAFTA±2,516 Electricity. General Electric (Wkrs) ...... Carthage, NY ...... 07/14/1998 NAFTA±2,516 Electricity. General Electric (Wkrs) ...... South Glenn Falls NY ...... 07/14/1998 NAFTA±2,516 Electricity. W.T.D. Industries (Wkrs) ...... Corvallis, OR ...... 07/20/1998 NAFTA±2,517 Dimension lumber. Scientific Atlanta (Wkrs) ...... Norcross, GA ...... 07/27/1998 NAFTA±2,518 Radio frequency products. Keptel (Co.) ...... Tinton Falls, NJ ...... 07/27/1998 NAFTA±2,519 Trays, splitter modules & light guards. XEL Communications (Co.) ...... Aurora, CO...... 07/27/1998 NAFTA±2,520 Printed crircuit boards. Capital Mercury Apparel (Co.) ...... Marshall, AR ...... 07/24/1998 NAFTA±2,521 Men's dress and sport shirts. Capital Mercury Apparel (Co.) ...... Mt. View, AR ...... 07/24/1998 NAFTA±2,521 Men's dress and sport shirts. Thorn Apple Valley (UFCW) ...... Detroit, MI ...... 07/13/1998 NAFTA±2,522 Fresh pork. Industrial Ceramics (Wkrs) ...... Lima, NY ...... 07/14/1998 NAFTA±2,523 Electrical proeclain insulators. Tri Americas (CBO) ...... El Paso, TX ...... 07/27/1998 NAFTA±2,524 Men's jeans. Borg Warner Automotive (Co.) ...... Sterling Heights, MI ...... 07/15/1998 NAFTA±2,525 Automotive torque convertors. National Environmental Products Pompano Beach, FL ...... 06/26/1998 NAFTA±2,526 Climate control actuators. (Co.). NACCO Materials Handling Group Flemington, NJ ...... 07/20/1998 NAFTA±2,527 Fork lifts and component parts. (Co.). NACCO Materials Handling Group Danville, IL ...... 07/20/1998 NAFTA±2,527 Fork lifts and component parts. (Co.). PacifiCorp (IUOE) ...... Centralia, WA ...... 07/30/1998 NAFTA±2,528 Low-sulfur, sub-bituminous coal. PacifiCorp (IBEW) ...... Centralia, WA ...... 07/30/1998 NAFTA±2,529 Electrical power. Caro-Knit and C-Knit Apparel (Co.) Jefferson, SC ...... 07/29/1998 NAFTA±2,530 Men's and boy's knit shirts. Sakhina Fashions (Co.) ...... Murphy, NC ...... 07/28/1998 NAFTA±2,531 Men's and women's jeans. General Electric (Wkrs) ...... Schenectady, NY ...... 07/28/1998 NAFTA±2,532 Steam/gas turbine & generator compo- nents. Siebe AutomotiveÐAlgood (Wrks) .. Algood, TN ...... 07/29/1998 NAFTA±2,533 Automotive thermostats. Key Tronic (Co.) ...... Spokane, WA ...... 07/22/1998 NAFTA±2,534 Keyboards for computers. Proctor and Gamble (Co.) ...... Greenville, NC ...... 07/30/1998 NAFTA±2,535 Always catamenials & adult incontinence. Marwi USA (Co.) ...... Olney, IL ...... 07/31/1998 NAFTA±2,536 Bicycles parts. Lasting Products (Wkrs) ...... Farmers Branch, TX ...... 08/03/1998 NAFTA±2,537 Home decorative and gift items. Whisper Knits (Co.) ...... Clinton, NC ...... 07/29/1998 NAFTA±2,538 Men's and boy's shirts. Whisper Knits (Co.) ...... Vass, NC ...... 07/29/1998 NAFTA±2,538 Men's and boy's shirts. Inter Lake Paper (PMWU) ...... Kimberly, WI ...... 07/31/1998 NAFTA±2,539 Coated freesheet paper grades. Sonoco Products (Wkrs) ...... Holyoke, MA ...... 08/03/1998 NAFTA±2,540 Paper machine. Hewlett Packard (Co.) ...... Loveland, CO ...... 08/07/1998 NAFTA±2,541 Computer tape back-up. Okie ApparelÐDash America Hugo, OK ...... 08/04/1998 NAFTA±2,542 Sewing operations. (Wkrs). R.S.I. Home Products (Wkrs) ...... Lincolnton, NC ...... 08/06/1998 NAFTA±2,543 Bathroom cabinet doors. Oneita Industries (Co.) ...... Clint, TX ...... 08/06/1998 NAFTA±2,544 T-shirt sewing. Sara Lee Hosiery (Co.) ...... Mesilla Park, NM ...... 07/22/1998 NAFTA±2,545 Ladies' hosiery. Stibnite Mine (Co.) ...... McCall, ID ...... 08/10/1998 NAFTA±2,546 Gold and other precious metals. Florsheim Group (UNITE) ...... Cape Girardeau, MO ...... 08/11/1998 NAFTA±2,547 Men's dress shoes. Apparel America (UNITE) ...... New Haven, CT ...... 08/10/1998 NAFTA±2,548 Women's swimwear. Apparel America (UNITE) ...... Hartford, CT ...... 08/10/1998 NAFTA±2,548 Women's swimwear. Siebe Appliance Controls (Co.) ...... Kendallville, IN ...... 08/11/1998 NAFTA±2,549 Infinite switches & pressure switches. Durham 2000 (Co.) ...... Danville, VA ...... 08/14/1998 NAFTA±2,550 Men's and boys' white socks. Matsushita Electric Corp. of Amer- San Diego, CA ...... 08/13/1998 NAFTA±2,551 Color television. ica (Wkrs). Springs Industries (Wkrs) ...... Gordon, GA ...... 08/14/1998 NAFTA±2,552 Infant terry cloth apparel. Heatube (Co.) ...... Clarence, MO ...... 08/14/1998 NAFTA±2,553 Electric heating elements (household). Oki Semiconductor (Co.) ...... Tualatin, OR ...... 08/14/1998 NAFTA±2,554 Memory and logic semiconductor. Hudson (Wkrs) ...... Newport, NC ...... 08/11/1998 NAFTA±2,555 Soccer apparel (sports, shirts etc.). Decorative Home Accents (Wkrs) ... Mooresville, NC ...... 08/11/1998 NAFTA±2,556 Window curtains. Oshkosh B'Gosh (Wkrs) ...... Gainesboro, TN ...... 08/11/1998 NAFTA±2,557 Girls and infants; dresses, shirts etc. Show Me Jacket (Co.) ...... California, MO ...... 08/12/1998 NAFTA±2,558 Jacket. Ricon Resins (Co.) ...... Grand Junction, CO ...... 08/11/1998 NAFTA±2,559 Resin. General Electric (Wkrs) ...... Somersworth, NH ...... 08/12/1998 NAFTA±2,560 Singlephase meter subassembly & compo- nent. Pioneer Finishing (UNITE) ...... Fall River, MA ...... 08/07/1998 NAFTA±2,561 Dyed and finished fabric. Philips Semiconductors (Wkrs) ...... Albuquerque, NM ...... 07/31/1998 NAFTA±2,562 Silicon memory chips for computers. Lone Star Steel (USWA) ...... Lone Star, TX ...... 08/13/1998 NAFTA±2,563 Steel products (pipes & tubings). Sweet Orr and Company (UFCW) .. Dawsonville, GA ...... 08/13/1998 NAFTA±2,564 Shirts. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58427

APPENDIXÐContinued

Date re- ceived at Subject firm Location Governor's Petition No. Articles produced office

Philomath Forest Products (Wkrs) .. Philomath, OR ...... 08/11/1998 NAFTA±2,565 Dimension lumber. W.T.D. Industries (Wkrs) ...... Corvallis, OR ...... 08/11/1998 NAFTA±2,565 Dimension lumber. Sedro Woolley Lumber Company Sedro Woolley, WA ...... 08/11/1998 NAFTA±2,565 Dimension lumber. (Wkrs). Huffy Bicycles (Wkrs) ...... Celina, OH ...... 07/29/1998 NAFTA±2,566 Bicycles. Globe Business Furniture (SCIW) ... Hendersonville, TN ...... 08/12/1998 NAFTA±2,567 Office furniture. Cablelink (Wkrs) ...... Kings Mountain, NC ...... 08/13/1998 NAFTA±2,568 Molded electronic cable assemblies. Cordis (Wkrs) ...... Warren, NJ ...... 08/10/1998 NAFTA±2,569 Cardiac shunts. Imation (Co.) ...... Kearneysville, WV ...... 08/10/1998 NAFTA±2,570 Lithographic printing plates, chemicals. Walls Industries (Co.) ...... Anniston, AL ...... 08/18/1998 NAFTA±2,571 Mpm-insulated clothing. ADEMCO Group (UIW) ...... Syosset, NY ...... 08/18/1998 NAFTA±2,572 Commercial/residential security products. ADEMCO Group (UIW) ...... El Paso, TX ...... 08/18/1998 NAFTA±2,572 Commerical/residential Security products. American and Efird (Wkrs) ...... El Paso, TX ...... 08/18/1998 NAFTA±2,573 Industrial sewing thread. United Technologies Automotive Bay City, MI ...... 07/30/1998 NAFTA±2,574 Interior automotive trim. (USWA). Zeneca (IUOE) ...... Mt. Pleasant, TN ...... 08/20/1998 NAFTA±2,575 Raw Materials for insecticides. Crown Pacific (Wkrs) ...... Bonners Ferry, ID ...... 08/19/1998 NAFTA±2,576 Finished lumber prices. Delta Apparel (Co.) ...... Washington, GA ...... 08/20/1998 NAFTA±2,577 T±shirts. Fujitsu Computer Products of Amer- Hillsboro, OR ...... 08/21/1998 NAFTA±2,578 Tape drives, file systems. ica (Wkrs). BWD Automotive (Wkrs) ...... Ottawa, IL ...... NAFTA±2,579 Cover and driven plate assemblys. Johnson and Johnson (UFCW) ...... Kankakee, IL ...... 08/26/1998 NAFTA±2,580 Carefree lines of Sanitary production. Donora Sportswear (Wkrs) ...... Donora, PA ...... 08/28/1998 NAFTA±2,581 Men's and ladies' topcoats. Schlumberger Anadrill (Wkrs) ...... Casper, WY ...... 08/27/1998 NAFTA±2,582 Crude oil. GCO Apparel (Wkrs) ...... Bowdon, GA ...... 08/28/1998 NAFTA±2,583 Men's suits and sportcoats. Dalmatia (Wkrs) ...... Herndon, PA ...... 08/26/1998 NAFTA±2,4584 Girl's dresses, tops, and pants. Dayco Swan (USWA) ...... Bucyrus, OH ...... 07/15/1998 NAFTA±2,585 Automotive rubber hoses. Precise Polestar (Wkrs) ...... State College, PA ...... 08/26/1998 NAFTA±2,586 Injected molded plastic components. Gintex LTD (UNITE) ...... Pittston, PA ...... 08/28/1998 NAFTA±2,587 Cutting of ladies fabric for garments. T.W. Hager Lumber (Wkrs) ...... Dowagiac, MI ...... 08/25/1998 NAFTA±2,588 Lumber for fence & decks. Native Textiles (CWA) ...... Glens Falls, NY ...... 08/28/1998 NAFTA±2,589 Lace and tricot fabric. Dean Lumber (Co.) ...... Gilmer, TX ...... 08/31/1998 NAFTA±2,590 Dimensional lumber. Nu±Kote International (Wkrs.) ...... Nogales, AZ ...... 08/27/1998 NAFTA±2,591 Printer ribbons. Stone Apparel (Co.) ...... North, SC ...... 08/31/1998 NAFTA±2,592 Men's boxer shorts. Burlen Corporation (Co.) ...... Thomasville, GA ...... 08/31/1998 NAFTA±2,593 Ladies' lingerie. Stewart Superior (Wkrs) ...... Chicago, IL ...... 09/02/1998 NAFTA±2,594 Rubber Stamps. Richard's Sportswear (Co.) ...... San Fernando, CA ...... 09/02/1998 NAFTA±2,595 Jeans, knit tops. ADEMCO (Wkrs) ...... El Paso, TX ...... 08/25/1998 NAFTA±2,596 Alarm devices. Central Resources (Co.) ...... Denver, CO ...... 09/01/1998 NAFTA±2,597 Oil and gas production. Interfrost (Wkrs) ...... Holley, NY ...... 09/01/1998 NAFTA±2,598 Packaging frozen fruits and vegetables. Food Service Specialities (Wkrs) .... Columbus, WI ...... 09/01/1998 NAFTA±2,6599 Spagetti and pizza sauce. Lear Corp (Co) ...... Midland, TX ...... 09/08/1998 NAFTA±2,600 Automobile Plastic Door Handles. Excel Garment Manufacturing (Co) El Paso, TX ...... 09/08/1998 NAFTA±2,601 Sewing of jeans and shorts. Russell Corporation (Co) ...... Midland, GA ...... 09/08/1998 NAFTA±2,602 Casual, Activewear. Ogden Atlantic Design (Wkrs) ...... Charlotte, NC ...... 09/08/1998 NAFTA±2,603 Electronic components for printers. Naxos of America (Wkrs) ...... Pennsauken, NJ ...... 09/10/1998 NAFTA±2,604 Compact discs. TexMex Trim (Co.) ...... Los Indios, TX ...... 09/11/1998 NAFTA±2,605 Automatic shift knobs for automobiles. Zilog (Wkrs) ...... Nampa, ID ...... 09/11/1998 NAFTA±2,606 Computer chips. Sensus Tech (USWA) ...... Uniontown, PA ...... 09/10/1998 NAFTA±2,6077 Water meters. Alcoa Fujikura Limited (Co.) ...... Owosso, MI ...... 08/31/1998 NAFTA±2,608 Fuel systems harnesses, fuel pump & caps. Scranton Export Clothing (UNITE) .. Scranton, PA ...... 09/10/1998 NAFTA±2,609 Sort & grade used clothing. Teledyne Electronic Technologies City of Industry, CA ...... 09/09/1998 NAFTA±2,610 Sensors. (Co.). Lane Punch (Wkrs) ...... New Berlin, WI ...... 09/10/1998 NAFTA±2,611 Punch and die components. Essex (UNITE) ...... Fall River, MA ...... 09/09/1998 NAFTA±2,612 Women's coats. Intercontinental Branded (Co.) ...... Buffalo, NY ...... 09/14/1998 NAFTA±2,613 Men's suite and sport coats. Terry Logging (Co.) ...... Elgin, OR ...... 09/11/1998 NAFTA±2,614 Harvesting and delivery of logs. Gem State Lumber (Wkrs) ...... Juliaetta, ID ...... 09/11/1998 NAFTA±2,615 Dimension lumber. Santa's Best (Comp) ...... Millville, NJ ...... 09/09/1998 NAFTA±2,616 Santa Claus Suits. PCC Merriman () ...... Hingham, MA ...... 09/14/1998 NAFTA±2,617 Metal Gears, Rings. NACCO Materials Handling Group Fairview, OR ...... 09/17/1998 NAFTA±2,618 Fork lifts. (Wkrs). Perm-O-Penn Exploration (Co.) ...... Midland, TX ...... 09/15/1998 NAFTA±2,619 Oil and gas. Windfall Products (Wkrs) ...... St. Marys, PA ...... 09/16/1998 NAFTA±2,620 Powder metal parts. Marcelle's Fashions (Wkrs) ...... El Paso, TX ...... 09/11/1998 NAFTA±2,621 Pants, blouses, jackets and skirts. Paris Accessories (UNITE) ...... Allentown, PA ...... 09/16/1998 NAFTA±2,611 Women's belts. Outdoor Recreation Group (The) Los Angeles ...... 09/17/1998 NAFTA±2,623 Backpacks, duffles. (Co.). 58428 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

APPENDIXÐContinued

Date re- ceived at Subject firm Location Governor's Petition No. Articles produced office

Jonathan Manufacturing (Co.) ...... Fullerton, CA ...... 09/15/1998 NAFTA±2,624 Assembly of steel drawer slides. Eastman Kodak (Co.) ...... Rochester, NY ...... 09/21/1998 NAFTA±2,625 Health imaging film processors. Russell Corporation (Co.) ...... Slocomb, AL ...... 09/21/1998 NAFTA±2,626 Activewear, sweats, t-shirts. Spalding Sports Worldwide (Wkrs) Chicopee, MA ...... 09/15/1998 NAFTA±2,627 Sporting goods. ICI Explosives (OCAW) ...... Tamaqua, PA ...... 09/21/1998 NAFTA±2,628 Electric detonators. Sportknit (Co.) ...... Albertson, NC ...... 09/18/1998 NAFTA±2,629 Knit shirts, pants and sport apparel. Paramount Headwear (Wkrs) ...... Van Buren, MO ...... 09/21/0098 NAFTA±2,630 Caps. Preferred Electronics (Wkrs) ...... Hauppauge, NY ...... 09/11/1998 NAFTA±2,631 Coils, transformers, power supplies. General Electric (IUE) ...... Fitchburg, MA ...... 09/08/1998 NAFTA±2,632 Production drawings. Jasper Textile (Co.) ...... Jasper, FL ...... 09/11/1998 NAFTA±2,633 Ladies sportswear. Todd Products (Co.) ...... Brentwood, NY ...... 09/22/1998 NAFTA±2,634 Switching power supplies. Smith Corona (Wkrs) ...... Cortland, NY ...... 09/22/1998 NAFTA±2,635 Typewriters and accessories. Boise Cascade (Wkrs) ...... La Grande, OR ...... 09/17/1998 NAFTA±2,636 Stud lumber. Louis Allis (IUE) ...... Milwaukee, WI ...... 09/23/1998 NAFTA±2,637 Electric motors and generators. Martech Medical (Wkrs) ...... Harleysville, PA ...... 09/25/1998 NAFTA±2,638 Medical products. Cub Cadet, MTD (UFCW) ...... Brownsville, TN ...... 09/24/1998 NAFTA±2,639 Lawn and garden tractors. Russell Group (Co.) ...... Rockingham, NC ...... 09/24/1998 NAFTA±2,640 Ladies undergarments. Owens BriGem Medical (Co.) ...... Newland, NC ...... 09/29/1998 NAFTA±2,641 Consumaple plastic anesthesia articles. Banana Tree (The) (UNITE) ...... El Paso, TX ...... 09/02/1998 NAFTA±2,642 Repair vacuum cleaner. Summit Station (UNITE) ...... Pine Grove, PA ...... 09/24/1998 NAFTA±2,643 Sportswear. Fabcare (Co.) ...... Pickwick Dam, TN ...... 09/30/1998 NAFTA±2,644 Denim jeans and laundry chemicals. Lear Corporation (UAW) ...... Romulus, MI ...... 09/09/1998 NAFTA±2,645 Seat assemblies. Borden Foods (Co.) ...... Tolleson, AZ ...... 09/23/1998 NAFTA±2,646 Dry pasta products. Chicago Rawhide SKF USA (Co.) .. Gastonia, NC ...... 10/01/1998 NAFTA±2,647 Shafts sealing devices for automotive. McCulloch Corporation (Wkrs) ...... Lake Havasu, AZ ...... 09/30/1998 NAFTA±2,648 Machined parts. International Assembly Specialist Tucson, AZ ...... 10/01/1998 NAFTA±2,649 Computer keyboards, monitors etc. (Co.). Woodwork Corp. America (Wkrs) .... Merrill, WI ...... 09/30/1998 NAFTA±2,650 Synthetic bowling lanes accessories. Vulcan Brunswick (Wkrs) ...... Antigo, WI ...... 10/01/1998 NAFTA±2,651 Bowling pins. Gibeck (Wkrs) ...... Indianapolis, IN ...... 09/23/1998 NAFTA±2,652 Plastic tubes. Litton Industries (Wkrs) ...... Garland, TX ...... 10/02/1998 NAFTA±2,653 Optical elements. Crown Cork and Seal (USWA) ...... Arlington, TX ...... 10/05/1998 NAFTA±2,654 Plastic lined bottle caps. Hvide Marine (Co.) ...... Temeculaerdale, CA ...... 10/02/1998 NAFTA±2,655 Offshore towing. Cross Creek Apparel (Co.) ...... Mt. Airy, NC ...... 10/05/1998 NAFTA±2,656 Apparel sewing. Miller Sports (Wkrs) ...... Walnut Ridge, AR ...... 10/05/1998 NAFTA±2,657 Golf bags. Cape Cod Spts. (UNITE) ...... New Bedford, MA ...... 10/05/1998 NAFTA±2,658 Ladies jackets. Photran (Wkrs) ...... Lakeville, MN ...... 09/28/1998 NAFTA±2,659 Coated glass. Coats American (Co.) ...... Denver, PA ...... 09/29/1998 NAFTA±2,660 Sewing thread and zippers. Coats American (Co.) ...... Monroeville, AL ...... 09/29/1998 NAFTA±2,661 Sewing thread and zippers. Sonoco Products (Co.) ...... Amsterdam, NY ...... 10/08/1998 NAFTA±2,662 Paperboard. National Fruit Product (Co.) ...... Winschester, VA ...... 09/28/1998 NAFTA±2,663 Apple products. North Star Steel (USWA) ...... Beaumont, TX ...... 10/08/1998 NAFTA±2,664 Wire rod. Horace Small (Wkrs) ...... Brownsville, TX ...... 10/08/1998 NAFTA±2,665 Uniforms. Becton Dickinson (Co.) ...... Detroit, MI ...... 09/22/1998 NAFTA±2,666 Diagnostic. Russell Corporation (Co.) ...... Marianna, FL ...... 10/06/1998 NAFTA±2,667 Casual activewear. Wolverine World Wide, Inc (Comp) Rockford, MI ...... 09/28/1998 NAFTA±2,668 Tanned PigskinÐShoes. Mitchell Manufacturing (Wrks) ...... Clare, MI ...... 10/06/1998 NAFTA±2,669 Automotive Interiors. Beloit Corp. (Wrks) ...... Dalton, MA ...... 10/08/1998 NAFTA±2,670 Dilution Nozzles, Sheer Mixers. Associated Plastics (Wrks) ...... Jonesboro, AR ...... 10/08/1998 NAFTA±2,671 Fiberglass Cable Pull Boxes. Lone Star Steel () ...... Lone Star, TX ...... 10/09/1998 NAFTA±2,672 Finished & Unfinished Pipe. Creative Expressions Group () ...... Indianapolis, IN ...... 10/06//1998 NAFTA±2,673 Paper Party Goods. Fasso DC Motor (Co.) ...... Parsons, TN ...... 10/20//1998 NAFTA±2,674 Wiring for automotive. Adams USA (Co.) ...... Monterey, TN ...... 10/19//1998 NAFTA±2,675 Athletic equipment. Curry Grain (Wkrs) ...... Filer, IA ...... 10/16/1998 NAFTA±2,676 Dry beans, wheat. General Electric (Wkrs) ...... Erie, PA ...... 10/15/1998 NAFTA±2,677 DC motors and component parts. HamlinÐBreed Tech (Co.) ...... Gwinn, MI ...... 10/12/1998 NAFTA±2,678 Electronic components, automotive. General Motors (UAW) ...... Kalamazoo, MI ...... 09/29/1998 NAFTA±2,679 W. Seitchik and Sons (UNITE) ...... Philadelphia, PA ...... 10/16/1998 NAFTA±2,680 Men's tailored clothing. Biltwell (UNITE) ...... St. Louis, MO ...... 10/19/1998 NAFTA±2,681 Dress coats, suits and sport coats. Thomaston Mills () ...... Guifton, GA ...... 10/19/1998 NAFTA±2,682 Georgia Pacific Lebonite (WCIW) ... Lebanon, OR ...... 10/19/1998 NAFTA±2,683 Drill board. Holloway Sportswear (Co.) ...... DeRiddler, LA ...... 10/19/1998 NAFTA±2,684 Pullover jackets. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58429

[FR Doc. 98–29171 Filed 10–29–98; 8:45 am] prevailing by the Secretary of Labor in Modifications to General Wage BILLING CODE 4310±30±M accordance with the Davis-Bacon Act. Determination Decisions The prevailing rates and fringe benefits The number of decisions listed in the determined in these decisions shall, in Government Printing Office document DEPARTMENT OF LABOR accordance with the provisions of the entitled ‘‘General Wage Determinations Employment and Training foregoing statutes, constitute the Issued Under the Davis-Bacon and Administration minimum wages payable on Federal and Related Acts’’ being modified are listed federally assisted construction projects by Volume and State. Dates of [NAFTA±02619] to laborers and mechanics of the publication in the Federal Register are specified classes engaged on contract in parentheses following the decision Perm-O-Penn Exploration, Midland, being modified. Texas; Notice of Termination of work of the character and in the Investigation localities described therein. Volume I: Good cause is hereby found for not Maine Purusant to Section 250 of the Trade utilizing notice and public comment ME980005 (FEB. 13, 1998) Act of 1974, an investigation was procedure thereon prior to the issuance ME980010 (FEB. 13, 1998) initiated on September 15, 1998 on of these determinations as prescribed in ME980022 (FEB. 13, 1998) behalf of workers at Perm-O-Penn 5 U.S.C. 553 and not providing for delay ME980037 (FEB. 13, 1998) Exploration, Midland, Texas. New York The petitioner requested that the in the effective date as prescribed in that NY980002 (FEB. 13, 1998) petition be withdrawn. Consequently, section, because the necessity to issue NY980004 (FEB. 13, 1998) further investigation in this case would current construction industry wage NY980013 (FEB. 13, 1998) serve no purpose, and the investigation determinations frequently and in large NY980022 (FEB. 13, 1998) NY980033 (FEB. 13, 1998) has been terminated. volume causes procedures to be impractical and contrary to the public NY980040 (FEB. 13, 1998) Signed in Washington, D.C. this 19th day NY980042 (FEB. 13, 1998) of October, 1998. interest. NY980048 (FEB. 13, 1998) Grant D. Beale, General wage determination NY980049 (FEB. 13, 1998) Acting Director, Office of Trade Adjustment decisions, and modifications and Volume II: Assistance. supersedes decisions thereto, contain no Maryland [FR Doc. 98–29177 Filed 10–29–98; 8:45 am] expiration dates and are effective from MD980001 (FEB. 13, 1998) BILLING CODE 4510±30±M their date of notice in the Federal MD980011 (FEB. 13, 1998) Register, or on the date written notice MD980012 (FEB. 13, 1998) is received by the agency, whichever is MD980021 (FEB. 13, 1998) DEPARTMENT OF LABOR earlier. These decisions are to be used MD980034 (FEB. 13, 1998) MD980035 (FEB. 13, 1998) in accordance with the provisions of 29 Employment Standards Administration MD980036 (FEB. 13, 1998) CFR Parts 1 and 5. Accordingly, the MD980037 (FEB. 13, 1998) Wage and Hour Division applicable decision, together with any MD980042 (FEB. 13, 1998) modifications issued, must be made a MD980048 (FEB. 13, 1998) Minimum Wages for Federal and part of every contract for performance of MD980054 (FEB. 13, 1998) Federally Assisted Construction; the described work within the MD980056 (FEB. 13, 1998) General Wage Determination Decisions MD980057 (FEB. 13, 1998) geographic area indicated as required by MD980058 (FEB. 13, 1998) General wage determination decisions an applicable Federal prevailing wage Pennsylvania of the Secretary of Labor are issued in law and 29 CFR Part 5. The wage rates PA980004 (FEB. 13, 1998) accordance with applicable law and are and fringe benefits, notice of which is PA980005 (FEB. 13, 1998) based on the information obtained by published herein, and which are PA980006 (FEB. 13, 1998) the Department of Labor from its study contained in the Government Printing PA980025 (FEB. 13, 1998) PA980026 (FEB. 13, 1998) of local wage conditions and data made Office (GPO) document entitled PA980030 (FEB. 13, 1998) available from other sources. They ‘‘General Wage Determinations Issued PA980031 (FEB. 13, 1998) specify the basic hourly wage rates and Under The Davis-Bacon And Related PA980042 (FEB. 13, 1998) fringe benefits which are determined to Acts,’’ shall be the minimum paid by PA980063 (FEB. 13, 1998) be prevailing for the described classes of contractors and subcontractors to West Virginia laborers and mechanics employed on laborers and mechanics. WV980002 (FEB. 13, 1998) construction projects of a similar WV980003 (FEB. 13, 1998) Any person, organization, or character and in the localities specified WV980006 (FEB. 13, 1998) governmental agency having an interest therein. in the rates determined as prevailing is Volume III: The determinations in these decisions Georgia of prevailing rates and fringe benefits encouraged to submit wage rate and fringe benefit information for GA980053 (FEB. 13, 1998) have been made in accordance with 29 Tennessee CFR Part 1, by authority of the Secretary consideration by the Department. TN980001 (FEB. 13, 1998) of Labor pursuant to the provisions of Further information and self- TN980002 (FEB. 13, 1998) the Davis-Bacon Act of March 3, 1931, explanatory forms for the purpose of TN980041 (FEB. 13, 1998) as amended (46 Stat. 1494, as amended, submitting this data may be obtained by TN980048 (FEB. 13, 1998) 40 U.S.C. 276a) and of other Federal writing to the U.S. Department of Labor, TN980062 (FEB. 13, 1998) statutes referred to in 29 CFR part 1, Employment Standards Administration, Volume IV: appendix, as well as such additional Wage and Hour Division, Division of Illinois statutes as may from time to time be Wage Determinations, 200 Constitution IL980008 (FEB. 13, 1998) enacted containing provisions for the Avenue, N.W., Room S–3014, IL980017 (FEB. 13, 1998) payment of wages determined to be Washington, DC 20210. IL980025 (FEB. 13, 1998) 58430 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

IL980028 (FEB. 13, 1998) including those noted above, may be equipment instead of using padlocks. IL980030 (FEB. 13, 1998) found in the Government Printing Office The petitioner asserts that the proposed IL980040 (FEB. 13, 1998) (GPO) document entitled ‘‘General Wage alternative method would provide at IL980041 (FEB. 13, 1998) Determinations Issued Under The Davis- least the same measure of protection as IL980047 (FEB. 13, 1998) IL980048 (FEB. 13, 1998) Bacon and Related Acts.’’ This would the mandatory standard. IL980053 (FEB. 13, 1998) publication is available at each of the 50 2. Old Dominion Energy, Inc. IL980055 (FEB. 13, 1998) Regional Government Depository [Docket No. M–98–82-C] IL980057 (FEB. 13, 1998) Libraries and many of the 1,400 IL980058 (FEB. 13, 1998) Government Depository Libraries across Old Dominion Energy, Inc., P.O. Box IL980061 (FEB. 13, 1998) the country. 1234, Grundy, Virginia 24614 has filed IL980062 (FEB. 13, 1998) The general wage determinations a petition to modify the application of IL980064 (FEB. 13, 1998) issued under the Davis-Bacon and 30 CFR 75.1710 (canopies or cabs; IL980065 (FEB. 13, 1998) related Acts are available electronically diesel-powered and electric face IL980068 (FEB. 13, 1998) equipment) to its Mine No. 5 (I.D. No. Indiana by subscription to the FedWorld IN980001 (FEB. 13, 1998) Bulletin Board System of the National 44–06890) located in Wise County, IN980002 (FEB. 13, 1998) Technical Information Service (NTIS) of Virginia. The petitioner proposes to IN980003 (FEB. 13, 1998) the U.S. Department of Commerce at 1– operate electric mobile equipment IN980004 (FEB. 13, 1998) 800–363–2068. without canopies in seam heights up to IN980005 (FEB. 13, 1998) Hard-copy subscriptions may be 50 inches. The petitioner asserts that the IN980006 (FEB. 13, 1998) purchased from: Superintendent of proposed alternative method would not IN980016 (FEB. 13, 1998) Documents, U.S. Government Printing result in a diminution of safety to the IN980017 (FEB. 13, 1998) miners. IN980018 (FEB. 13, 1998) Office, Washington, D.C. 20402 (202) IN980020 (FEB. 13, 1998) 512–1800. 3. Long Branch Energy IN980059 (FEB. 13, 1998) When ordering hard-copy [Docket No. M–98–83-C] IN980060 (FEB. 13, 1998) subscription(s), be sure to specify the Long Branch Energy, P.O. Box 776, Michigan State(s) of interest, since subscriptions MI980034 (FEB. 13, 1998) may be ordered for any or all of the Danville, West Virginia 25053 has filed MI980062 (FEB. 13, 1998) seven separate volumes, arranged by a petition to modify the application of MI980063 (FEB. 13, 1998) State. Subscriptions include an annual 30 CFR 75.503 (permissible electric face MI980071 (FEB. 13, 1998) edition (issued in January or February) equipment; maintenance) to its Mine MI980074 (FEB. 13, 1998) which includes all current general wage No. 23 (I.D. No. 46–08637) located in Wisconsin Boone County, Virginia. The petitioner WI980008 (FEB. 13, 1998) determinations for the States covered by each volume. Throughout the remainder proposes to use a threaded ring and a WI980010 (FEB. 13, 1998) spring loaded device on battery plug WI980013 (FEB. 13, 1998) of the year, regular weekly updates are connectors on mobile battery-powered WI980024 (FEB. 13, 1998) distributed to subscribers. machines to prevent the plug connector Volume V: Signed at Washington, D.C. This 22 day of from accidently disengaging while Kansas October 1998. under load. The petitioner asserts that KS980016 (FEB. 13, 1998) Carl J. Poleskey, application of the standard would result Oklahoma Chief, Branch of Construction Wage in a diminution of safety to the miners. OK980014 (FEB. 13, 1998) Determinations. In addition, the petitioner asserts that Volume VI: [FR Doc. 98–28887 Filed 10–29–98; 8:45 am] the proposed alternative method would Utah BILLING CODE 4510±27±M provide at least the same measure of UT980004 (FEB. 13, 1998) protection as would the mandatory standard. Volume VII: DEPARTMENT OF LABOR 4. CONSOL of Kentucky, Inc. California CA980002 (FEB. 13, 1998) Mine Safety and Health Administration [Docket No. M–98–84-C] CA980028 (FEB. 13, 1998) CONSOL of Kentucky, Inc., Consol CA980031 (FEB. 13, 1998) Petitions for Modification Plaza, 1800 Washington Road, CA980032 (FEB. 13, 1998) The following parties have filed Pittsburgh, Pennsylvania 15241–1421 CA980033 (FEB. 13, 1998) has filed a petition to modify the CA980034 (FEB. 13, 1998) petitions to modify the application of CA980035 (FEB. 13, 1998) mandatory safety standards under application of 30 CFR 75.901(a) CA980036 (FEB. 13, 1998) section 101(c) of the Federal Mine (protection of low- and medium-voltage CA980037 (FEB. 13, 1998) Safety and Health Act of 1977. three-phase circuits used underground) CA980038 (FEB. 13, 1998) to its Big Spring No. 16 Mine (I.D. No. CA980039 (FEB. 13, 1998) 1. U.S. Steel Mining Company, L.L.C. 15–17957), E3RF Mine (I.D. No. 15– CA980040 (FEB. 13, 1998) [Docket No. M–98–81-C] 17894), Motts Branch Mine (I.D. No. 15– Nevada U.S. Steel Mining Company, L.L.C., 18012), and its Big Spring No. 17 Mine NV980002 (FEB. 13, 1998) 600 Grant Street, Pittsburgh, (I.D. No. 15–17996) all located in Knott NV980003 (FEB. 13, 1998) Pennsylvania 15219–2749 has filed a County, Kentucky; and its Wiley (MC) NV980004 (FEB. 13, 1998) NV980005 (FEB. 13, 1998) petition to modify the application of 30 Mine (I.D. No. 15–17220), E3-MC Mine NV980007 (FEB. 13, 1998) CFR 75.503 (permissible electric face (I.D. No. 15–17720), and its Loves NV980009 (FEB. 13, 1998) equipment; maintenance) to its Gary No. Branch Mine (I.D. No. 15–17814) 50 Mine (I.D. No. 46–01816) located in located in Letcher County, Kentucky. General Wage Determination Wyoming County, West Virginia. The The petitioner proposes to derive a low Publication petitioner proposes to use permanently and medium voltage three-phase, General wage determinations issued installed spring-loaded locking devices alternating current for use underground under the Davis-Bacon and related Acts, on battery plugs on battery-powered from a portable, diesel-driven generator Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58431 and to connect the neutral of the petitioner requests that previous NATIONAL AERONAUTICS AND generator’s transformer secondary petition for modification, docket SPACE ADMINISTRATION through a suitable resistor to the frame number M–91–05-M, be amended to [Notice (98±158)] of the diesel generator. The frame of the allow specific nonpermissible tools diesel generator would have solid listed in this petition to be used in or NASA Advisory Council, Aeronautics connection to a borehole casing, a metal beyond the last open crosscut. The and Space Transportation Technology waterline, or a grounding conductor petitioner states that prior to using these Advisory Committee, Aviation with a low resistance to earth. The tools, the atmosphere would be Operations Systems Subcommittee; petitioner proposes to follow specific examined for methane and would be Meeting terms and conditions listed in this continuously monitored with an petition for utilizing the proposed approved instrument [MS240], [MX212], AGENCY: National Aeronautics and alternative method. The petitioner or MX250 CMX 270, CMX 271, and/or Space Administration. asserts that the proposed alternative equivalent capable of providing both ACTION: Notice of Meeting Cancellation. method would provide at least the same visual and audible alarms required in 30 measure of protection as would the FEDERAL REGISTER CITATION OF PREVIOUS CFR 57.22227 and according to the mandatory standard. ANNOUNCEMENT: 63FR27093, Notice definition of mine atmosphere; that Number 98–138, October 9, 1998. 5. Rustler Coal Company qualified personnel would physically PREVIOUSLY ANNOUNCED DATES OF [Docket No. M–98–85-C] attend the equipment when used in or MEETING: Tuesday, October 27, 1998, Rustler Coal Company, 66 South inby the last open crosscut or in areas 8:30 a.m. to 4:30 p.m. and Wednesday, Tremont Street, Zerby, Tremont, where methane may enter the air October 28, 1998, 8:30 a.m. to 4:30 p.m. Pennsylvania 17981 has filed a petition current; that the procedures in 30 CFR The meeting will be rescheduled. to modify the application of 30 CFR 57.22234 would be followed if 1.0 FOR FURTHER INFORMATION CONTACT: 75.340 (underground electrical percent or more methane is detected; Dr. J. Victor Lebacqz, National installations) to its Orchard Slope Mine that the proposed changes to the Aeronautics and Space Administration, (I.D. No. 36–08346) located in petition would ensure the most up-to- Schuylkill County, Pennsylvania. The Ames Research Center, Moffett Field, date equipment, which would not only CA 94035, 415/604–5792. petitioner proposes to charge its ensure compliance accuracy but would batteries on the mine’s locomotive also meet or exceed the previous Dated: October 26, 1998. during idle periods when all miners modification. The petitioner states that Lori B. Garver, have been removed from the mine and the alternative method of purchasing Acting Association Administrator for Policy to allow the intake air used to ventilate and using the most up-to-date and Plans. the charging station, located at the No. equipment would allow them to [FR Doc. 98–29052 Filed 10–29–98; 8:45 am] 1 chute of the active gangway level, to BILLING CODE 7510±01±M continue through its normal route to the continue ensuring the same level of last open crosscut and into the monkey protection that has been afforded to airway (return). The petitioner asserts their employees in the past. The petitioner asserts that the proposed NUCLEAR REGULATORY that the proposed alternative method COMMISSION would provide at least the same alternative method would provide at measure of protection as would the least the same measure of protection as [Docket No. 50±277] mandatory standard. would the mandatory standard. Peco Energy Company; Peach Bottom Request for Comments 6. Kedco, Inc. Atomic Power Station Unit 2; Notice of [Docket No. M–98–86-C] Persons interested in these petitions Partial Denial of Amendment to Facility Kedco, Inc., P.O. Box 1358, Gilbert, are encouraged to submit comments via Operating License and Opportunity for West Virginia 25621 has filed a petition e-mail to ‘‘[email protected]’’, or on Hearing to modify the application of 30 CFR a computer disk along with an original 75.1002 (location of trolley wires, The U.S. Nuclear Regulatory hard copy to the Office of Standards, trolley feeder wires, high-voltage cables Commission (the Commission) has and transformers) to its Mine No. 2 (I.D. Regulations, and Variances, Mine Safety partially denied a request by PECO No. 46–08019) located in Mingo County, and Health Administration, 4015 Energy Company (the licensee), for an West Virginia. The petitioner proposes Wilson Boulevard, Room 627, amendment to Facility Operating to use high-voltage (2,400 volt cables) to Arlington, Virginia 22203. All License No. DPR–44 issued to the power continuous mining machines in comments must be postmarked or licensee for operation of the Peach and inby the last open crosscut. The received in that office on or before Bottom Atomic Power Station, Unit 2 , petitioner asserts that the proposed November 30, 1998. Copies of these located in York County, Pennsylvania. alternative method would provide at petitions are available for inspection at Notice of Consideration of Issuance of least the same measure of protection as that address. the amendment was published in the Federal Register on September 9, 1998 would the mandatory standard. Dated: October 20, 1998. (63 FR 48261). 7. Solvay Minerals Carol J. Jones, The purpose of the licensee’s [Docket No. M–98–07-M] Acting Director, Office of Standards, amendment request was to revise the Solvay Minerals, P.O. Box 1167, Regulations, and Variances. Technical Specifications (TS) to add a Green River, Wyoming 82935 has filed [FR Doc. 98–29082 Filed 10–29–98; 8:45 am] footnote to TS Section 5.6.5.b.1. a petition to modify the application of BILLING CODE 4510±43±P The NRC staff has concluded that a 30 CFR 57.22305 [approved equipment part of the licensee’s request cannot be (III mines)] to its Solvay Minerals, Inc. granted. The licensee was notified of the (I.D. No. 48–01295) located in Commission’s partial denial of the Sweetwater County, Wyoming. The proposed change by conference calls on 58432 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

September 2 and 9, 1998, and by letter Electric Company (Yankee Nuclear through the use of automated collection dated October 26, 1998. Power Station), Docket No. 50–029–LA– techniques, when appropriate, and other By November 30, 1998, the licensee R, is hereby reconstituted by appointing forms of information technology. may demand a hearing with respect to Administrative Judge Charles Comments on this form should be the denial described above. Any person Bechhoefer as Chairman of the addressed to Victoria Becker Wassmer, whose interest may be affected by this Licensing Board in place of Desk Officer, Office of Management and proceeding may file a written petition Administrative Judge James P. Gleason. Budget, NEOB, Washington, DC 20503. for leave to intervene. As reconstituted, the Board is Information Collection Abstract A request for hearing or petition for comprised of the following leave to intervene must be filed with the Administrative Judges: Title: Peace Corps Day Brochure/ Secretary of the Commission, U.S. Charles Bechhoefer, Esquire, Chairman Form. Nuclear Regulatory Commission, Thomas D. Murphy Need for and use of the Information: Washington, DC 20555–0001 Attention: Dr. Thomas S. Elleman This form is completed voluntarily by Returned Peace Corps Volunteers and Rulemakings and Adjudications Staff, or All Correspondence, documents and may be delivered to the Commission’s educators throughout the country. This other material shall be filed with the information will be used by WWS to Public Document Room, the Gelman Board in accordance with 10 CFR Building, 2120 L Street, NW., identify individuals interested in § 2.701 (1998). participating in the Peace Corps’s Washington, DC, by the above date. The address of the new Chairman is: A copy of any petitions should also be annual Peace Corps Day program. Charles Bechhoefer, Chairman, Atomic Enrollment in this program also fulfills sent to the Office of the General Safety and Licensing Board Panel, U.S. Counsel, U.S. Nuclear Regulatory the third goal of Peace Corps as required Nuclear Regulatory Commission, by Congressional legislation and to Commission, Washington, DC 20555– Washington, D.C. 20555. 0001, and to J. W. Durham, Sr., Esquire, enhance the Office of World Wise PECO Energy Company, 2301 Market Issued at Rockville, Maryland this 26th day Schools global education program. Street, Philadelphia, PA 19101, attorney of October 1998. Respondents: Returned Peace Corps for the licensee. B. Paul Cotter, Jr., Volunteers and career professionals For further details with respect to this Chief Administrative Judge, Atomic Safety throughout the public and private work action, see (1) the application for and Licensing Board Panel. force in the United States. amendment dated July 10, 1998, as [FR Doc. 98–29103 Filed 10–29–98; 8:45 am] Respondents obligation to reply: supplemented by two letters dated BILLING CODE 7590±01±P Voluntary. September 11, 1998, and (2) the Burden on the Public: Commission’s letter to the licensee a. Annual reporting burden: 150 hrs. dated October 26, 1998. PEACE CORPS b. Annual record keeping burden: 0 These documents are available for hrs. public inspection at the Commission’s Information Collection Requests Under c. Estimated average burden per Public Document Room, the Gelman OMB Review response: 3 min. Building, 2120 L Street, NW., d. Frequency of response: annually. ACTION: Notice of public use form Washington, DC, and at the local public e. Estimated number of likely review request to the Office of document room located at the respondents: 3,000. Management and Budget. Government Publications Section, State f. Estimated cost to respondents: $0.00. Library of Pennsylvania, (REGIONAL SUMMARY: Pursuant to the Paperwork This notice is issued in Washington, DEPOSITORY) Education Building, Reduction Act of 1981 (44 USC, Chapter DC on October 19, 1998. Walnut Street and Commonwealth 35), this notice announces that the Avenue, Box 1601, Harrisburg, PA Peace Corps has submitted to the Office William C. Piatt, 17105. of Management and Budget a request to Associate Director for Management. Dated at Rockville, Maryland, this 26th day approve the new collection of the Career [FR Doc. 98–29138 Filed 10–29–98; 8:45 am] of October 1998. Information Consultants waiver form. A BILLING CODE 6051±01±M For the Nuclear Regulatory Commission copy of the information collection may be obtained from Cindy Slone, Office of Robert A. Capra, PEACE CORPS Project Director, Project Directorate I–2, Returned Volunteer Services, Peace Corps, 1111 20th Street, NW, Division of Reactor Projects—l/ll, Office of Information Collection Requests Under Washington DC 20525. Ms. Slone may Nuclear Reactor Regulation. OMB Review [FR Doc. 98–29104 Filed 10–29–98; 8:45 am] be called at (202) 692–1430. Peace Corps BILLING CODE 7590±01±P invites comments on whether the AGENCY: Peace Corps. proposed collection of information is ACTION: Notice of public use form necessary for proper performance of the review request to the Office of NUCLEAR REGULATORY functions of the Peace Corps, including Management and Budget. (0420–0007) COMMISSION whether the information will have practical use; the accuracy of the SUMMARY: The Associate Director for [Docket No. 50±029±LA±R; ASLBP Docket agency’s estimate of the burden of the Management invites comments on No. 99±754±01±LA±R] proposed collection of information, information collection requests as Yankee Atomic Electric Company, including the validity of the required pursuant to the Paperwork Yankee Nuclear Power Station; Notice methodology and assumptions used; Reduction Act (44 U.S.C. Chapter 35). of Reconstitution of Board ways to enhance the quality, utility and This notice announces that the Peace clarity of the information to be Corps has submitted to the Office of Pursuant to the authority contained in collected; and, ways to minimize the Management and Budget a request to 10 CFR § 2.271 (1995) the Atomic Safety burden of the collection of information approve the continued use of the Peace and Licensing Board for Yankee Atomic on those who are to respond, including Corps Request for Information Card Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58433

(PC–1741). The initial Federal Register ACTION: Notice of public use form f. Estimated cost to $102.72. notice was published on November 21, review request to the Office of respondents. 1996 (pp. 59251). A copy of the Management and Budget. (0420–0005). William C. Piatt, information collection may be obtained from Michael Chapman, Director of SUMMARY: The Associate Director for Associate Director for Management. Communications, Peace Corps, 1111 Management invites comment on [FR Doc. 98–29140 Filed 10–29–98; 8:45 am] 20th Street, NW, Washington, DC 20526. information collection requests as BILLING CODE 6051±01±M Mr. Chapman may be contacted by required pursuant to the Paperwork telephone at 202–692–2212. The Peace Reduction Act (44 U.S.C. Chapter 35). Corps invites comments on whether the This notice announces that the Peace proposed collection of information is Corps has submitted to the office of SECURITIES AND EXCHANGE necessary for proper performance of the Management and Budget a request to COMMISSION functions of the Peace Corps, including approve the continued use of the Peace whether the information will have Corps Volunteer Application Form (PC– Requests Under Review by Office of practical use; the accuracy of the 1502). The initial Federal Register Management and Budget agency’s estimate of the burden of the notice was published on. A copy of the proposed collection of information, information collection may be obtained Upon Written Request, Copies Available including the validity of the from Judy Harrington, Director of From: Securities and Exchange methodology and assumptions used; Volunteer Recruitment and Selection, Commission, Office of Filings and ways to enhance the quality, utility and Peace Corps, 1111 20th Street, NW, Information Services, Washington, DC clarity of the information to be Washington, DC 20526. Ms. Harrington 20549. may be contacted by telephone at 202– collected; and, ways to minimize the Extension: Regulation S 692–1802. The Peace Corps invites burden the collection of information SEC File No. 270–315, OMB Control No. those who are to respond, including comments on whether the proposed 3235–0357 through the use of automated collection collection of information is necessary techniques, when appropriate, and other for proper performance of the functions Notice is hereby given that pursuant forms of information technology. of the Peace Corps, including whether to the Paperwork Reduction Act of 1995 Comments on these forms should be the information will have practical use; (44 U.S.C. 3501 et seq.), the Securities addressed to Victoria Becker Wassmer, the accuracy of the agency’s estimate of and Exchange Commission Desk Officer, Office of Management and the burden of the proposed collection of (‘‘Commission’’) has submitted to the Budget, NEOB, Washington, DC 20503. information, including the validity of Office of Management and Budget a the methodology and assumptions used; Information Collection Abstract request for approval of extension on the ways to enhance the quality, utility and following: Title: Peace Corps Request for clarity of the information to be Information Card. collected; and, ways to minimize the Regulation S is a set of rules Need for and use of this information: burden the collection of information governing offers and sales made outside The Peace Corps needs this information those who are to respond, including the United States without Securities Act in order to identify prospective through the use of automated collection registration. It does not directly impose applicants for Volunteer service. The techniques, when appropriate, and other any information collection burdens and information is used to determine what forms of information technology. therefore is assigned only one burden program specific information to send to Comments on these forms should be hour for administrative convenience. interested individuals. addressed to Victoria Becker Wassmer, An agency may not conduct or Respondents: Individuals interested Desk Officer, Office of Management and sponsor, and a person is not required to in learning more about Peace Corps Budget, NEOB, Washington, DC 20503. respond to, a collection of information service. Respondents obligation to reply: Information Collection Abstract unless it displays a currently valid control number. Voluntary. Title: Peace Corps Volunteer Burden on the Public: Application Form. Written comments regarding the a. Annual reporting burden ... 1,021 hours. Need for and use of this information: above information should be directed to b. Annual record keeping 0 hours. The Peace Corps needs this information the following persons: (i) Desk Officer burden. in order to identify prospective for the Securities and Exchange c. Estimated average burden 1.75 min. per response. applicants and process the applicants Commission, Office of Information and d. Frequency of response ...... one time. for Volunteer service. The information Regulatory Affairs, Office of e. Estimated number of likely 35,000. is used to determined qualifications and Management and Budget, Room 10202, respondents. potential for placement of applicants. New Executive Office Building, f. Estimated cost to respond- $.0.37. Respondents: Individuals who apply Washington, DC 20503; and (ii) Michael ents. for Peace Corps service. E. Bartell, Associate Executive Director, William C. Piatt, Respondents obligation to reply: Office of Information Technology, Associate Director for Management. Voluntary, but required to obtain Securities and Exchange Commission, [FR Doc. 98–29139 Filed 10–29–98; 8:45 am] benefits. 450 Fifth Street, NW, Washington, DC BILLING CODE 6051±01±M Burden to the public: 20549. Comments must be submitted to a. Annual reporting burden 240,000 hours. OMB within 30 days of this notice. b. Annual record keeping 0 hours. PEACE CORPS burden. Dated: October 23, 1998. c. Estimated average bur- 8 hours. Margaret H. McFarland, Information Collection Requests Under den per response. Deputy Secretary. OMB Review d. Frequency of response ... one time. e. Estimated number of 30,000. [FR Doc. 98–29121 Filed 10–29–98; 8:45 am] AGENCY: Peace Corps. likely respondents. BILLING CODE 8010±01±M 58434 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE ... Interpretations and Policies: COMMISSION COMMISSION .01–.04 No change. [Release No. 34±40596; File No. SR±CBOE± Sunshine Act Meeting .05 The Chairman of the appropriate 98±37] Floor Procedure Committee or the Notice is hereby given, pursuant to Self-Regulatory Organizations; Notice Chairman’s designee may exercise the the provisions of the Government in the of Filing of Proposed Rule Change and authority of the appropriate FPC under Sunshine Act, Pub. L. 94–409, that the Amendment No. 1 Thereto, By the paragraph (a)(i) of the Rule to increase Securities and Exchange Commission Chicago Board Options Exchange, Inc. the size of orders eligible for RAES when will hold the following meeting during To Allow the Chairman of the Equity the Chairman or his designee believes the week of November 2, 1998. Floor Procedure Committee, or the that the action is in the interest of alleviating a potential backlog of A closed meeting will be held on Chairman's Designee, To Increase the Eligible Order Size for Entry Into RAES unexecuted orders in situations where a Thursday, November 5, 1998, at 11 a.m. particular class of options is Commissioners, Counsel to the October 23, 1998. experiencing a large influx of orders and Commissioners, the Secretary to the Pursuant to Section 19(b)(1) of the provided the decision is made for no Commission, and recording secretaries Securities Exchange Act of 1934 more than one trading day. To the will attend the closed meeting. Certain (‘‘Act’’),1 notice is hereby given that on extent the conditions exist on the staff members who have an interest in August 21, 1998, the Chicago Board following trading day, the Chairman or the matters may also be present. Options Exchange, Inc. (‘‘CBOE’’ or his designee must review the situation ‘‘Exchange’’) filed with the Securities and make an independent decision to The General Counsel of the and Exchange Commission increase the RAES eligible order size for Commission, or his designee, has (‘‘Commission’’), the proposed rule that subsequent day. Any decisions certified that, in his opinion, one or change as described in Items I, II, and made by the Chairman or his designee more of the exemptions set forth in 5 III below, which Items have been to increase the RAES eligible order size U.S.C. 552b(c) (4), (8), (9)(A) and (10) prepared by the CBOE. On October 5, for a particular option class for and 17 CFR 200.402(a) (4), (8), (9)(i) and 1998, the Exchange filed with the consecutive days will be reviewed by the (10), permit consideration of the Commission Amendment No. 1 to the EFPC at its next regularly scheduled scheduled matters at the closed meeting. proposed rule change.2 The Commission meeting. is publishing this notice to solicit Commissioner Carey, as duty officer, II. Self-Regulatory Organization’s voted to consider the items listed for the comments on the proposed rule change, as amended, from interested persons. Statement of the Purpose of, and closed meeting in a closed session. Statutory Basis for, the Proposed Rule The subject mater of the closed I. Self-Regulatory Organization’s Change meeting scheduled for Thursday, Statement of the Terms of Substance of the Proposed Rule Change In its filing with the Commission, the November 5, 1998, at 11:00 a.m., will CBOE included statements concerning be: The CBOE proposes to permit the the purpose of and basis for the Chairman of the appropriate Floor Institution and settlement of proposed rule change and discussed any Procedure Committee (‘‘Committee’’), or injunctive actions. comments it received on the proposed the Chairman’s designee, to exercise the Institution and settlement of rule change. The text of these statements authority of the Committee to determine may be examined at the places specified administrative proceedings of an the size of orders eligible for entry into in Item IV below. The CBOE has enforcement nature. CBOE’s Retail Automatic Execution prepared summaries, set forth in System (‘‘RAES’’) in certain At times, changes in Commission sections (A), (B), and (C) below, of the circumstances.3 priorities require alterations in the most significant aspects of such scheduling of meeting items. For further The text of the proposed rule change is set forth below. Additions are statements. information and to ascertain what, if italicized. A. Self-Regulatory Organization’s any, matters have been added, deleted Statement of the Purpose of, and or postponed, please contact: CHAPTER VI Statutory Basis for, the Proposed Rule The Office of the Secretary at (202) Doing Business on the Exchange Floor Change 942–7070. Section A: General 1. Purpose Dated: October 28, 1998. * * * * * Exchange Rule 6.8(a)(i) states that Margaret H. McFarland, RAES Operations in Equity Options ‘‘the appropriate Floor Procedure Deputy Secretary. Committee (‘‘FPC’’) shall determine the Rule 6.8 No change. [FR Doc. 98–29316 Filed 10–28–98; 3:48 pm] size of orders eligible for entry into BILLING CODE 8010±01±M RAES.’’ Paragraph (e) states that 1 15 U.S.C. 78s(b)(1). 2 The proposed rule change was originally filed ‘‘[e]ligible orders must be market or under Section 19(b)(3)(A) of the Exchange Act. marketable limit orders for twenty or Pursuant to the Commission’s request, the Exchange fewer contracts on series placed on the amended the proposed rule change to file it under system. The appropriate FPC, in its Section 19(b)(2) of the Exchange Act. See letter from Timothy H. Thompson, Director, Regulatory Affairs, discretion, may determine to restrict CBOE, to Sonia Patton, Attorney, Division of Market eligible orders, including but not Regulation, Commission, dated September 15, 1998. limited to lowering contract limits.’’ 3 RAES accepts, through the Exchange’s Order Pursuant to its discretion under Routing System, small public customer market or marketable limit orders for automatic execution. An Exchange Rule 6.8, the Equity Floor Exchange market-maker on RAES is assigned as the Procedure Committee (‘‘EFPC’’) has contraparty to these trades. established an eligible RAES order size Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58435 of ten contracts for most equity options made by the Chairman or his designee Persons making written submissions traded on the floor. to increase the RAES eligible order size should file six copies thereof with the The Committee has discovered for a particular option class for Secretary, Securities and Exchange through experience in overseeing the consecutive days will be reviewed by Commission, 450 Fifth Street, N.W., operation of RAES in equity options, the EFPC at its next regularly scheduled Washington, D.C. 20549. Copies of the however, that it is often beneficial to meeting. After reviewing these decisions submission, all subsequent temporarily raise the eligible order size the EFPC can provide guidance to the amendments, all written statements to the allowable limit of twenty Chairman or his designee about the use with respect to the proposed rule contracts in situations where a of this authority if they feel it is change that are filed with the particular class of equity options is appropriate. Commission, and all written experiencing a large influx of orders. By communications relating to the 2. Statutory Basis increasing the eligible order size, a proposed rule change between the larger percentage of the order flow can By allowing the Chairman of the EFPC Commission and any person, other than be filled immediately at the Exchange’s or his designee to make decisions to those that may be withheld from the quotes or at the National Best Bid or increase the eligible order size for public in accordance with the Offer (‘‘NBBO’’).4 This, in turn, will RAES, the Exchange can help to prevent provisions of 5 U.S.C. 552, will be allow the trading crowd to concentrate the backlog of executable orders in an available for inspection and copying in on filling the non-RAES eligible orders efficient manner. The Exchange the Commission’s Public Reference in a more expeditious manner. believes, therefore, the filing is Room, in Washington, D.C. Copies of The decision to increase the RAES consistent with and furthers the such filing will also be available for eligible order size to address these high objectives of Section 6(b)(5) of the Act 5 inspection and copying at the principal volume situations must be made quickly in that it is designed to promote just and office of CBOE. All submissions should to be effective. In addition, the equitable principles of trade, to remove refer to File No. SR–CBOE–98–37 and Committee believes the increase should impediments to and perfect the should be submitted by November 20, only be made for that period of time in mechanism of a free and open market 1998. which the class is in a high volume and a national market system, and to situation; and so, the situation requires For the Commission, by the Division of protect investors and the public interest. Market Regulation, pursuant to delegated monitoring. Because the EFPC 6 commonly consists of twenty or more B. Self-Regulatory Organization’s authority. members who conduct business in all Statement on Burden on Competition Margaret H. McFarland, parts of the floor, it is not practicable to The CBOE does not believe that the Deputy Secretary. provide notice to all the members of the proposed rule change will impose any [FR Doc. 98–29117 Filed 10–29–98; 8:45 am] Committee and convene a meeting to burden on competition. BILLING CODE 8010±01±M make these decisions. It is also not practicable to expect these members to C. Self-Regulatory Organization’s monitor the situation when they are Statement on Comments on the SECURITIES AND EXCHANGE trying to conduct business on the floor Proposed Rule Change Received From COMMISSION that requires their attention. Intra-day Members, Participants or Others meetings are not only impracticable to No written comments were solicited [Release No. 34±40597; International Series convene but would distract these or received with respect to the proposed Release No. 1163; File No. SR±NYSE±98± members from the conduct of their rule change. 37] business on the floor. Consequently, the EFPC has III. Date of Effectiveness of the Self-Regulatory Organizations; Notice determined to delegate its authority Proposed Rule Change and Timing for of Filing and Order Granting under Exchange Rule 6.8 to the Commission Action Accelerated Approval of Proposed Chairman of the EFPC, or to the Within 35 days of the date of Rule Change by the New York Stock Chairman’s designee, to increase the publication of this notice in the Federal Exchange, Inc., Relating to the Trading eligible order size for RAES provided Register or within such longer period (i) of the Ordinary Shares of that the Chairman or his designee as the Commission may designate up to DaimlerChrysler AG believes the action is in the interest of 90 days of such date if it finds such October 23, 1998. alleviating a potential backlog of longer period to be appropriate and unexecuted orders in situations where a publishes its reasons for so finding or Pursuant to Section 19(b)(1) of the particular class of options is (ii) as to which the self-regulatory Securities Exchange Act of 1934 experiencing a large influx of orders and organization consents, the Commission (‘‘Act’’),1 and Rule 19b–4 thereunder,2 provided the decision is made for no will: notice is hereby given that on October more than one trading day. To the (A) by order approve such proposed 22, 1998, the New York Stock Exchange, extent the conditions exist on the rule change, or Inc. (‘‘Exchange’’ or ‘‘NYSE’’) filed with following trading day, the Chairman or (B) institute proceedings to determine the Securities and Exchange his designee must review the situation whether the proposed rule change be Commission (‘‘Commission’’) the and make an independent decision to disapproved. proposed rule change as described in Items I and II below, which Items have increase the RAES eligible order size for IV. Solicitation of Comments that subsequent day. Any decisions been prepared by the Exchange. The Interested persons are invited to Commission is publishing this notice 4 The Exchange recently received approval of a submit written data, views and and order to solicit comments on the rule change that provides that in classes designated arguments concerning the foregoing, proposed rule change from interested by the EFPC, RAES orders will be executed at the including whether the proposed rule NBBO to the extent the NBBO is no more than one tick better than the CBOE quote. Exchange Act change is consistent with the Act. 6 17 CFR 200.30–3(a)(12). Release No. 40096 (June 16, 1998), 63 FR 34209 1 15 U.S.C. 78s(b)(1). (June 23, 1998) (approving SR–CBOE–98–13). 5 15 U.S.C. 78f(b)(5). 2 17 CFR 240.19b–4. 58436 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices persons and to approve the proposal on certificates will meet the NYSE’s are procedures to distribute preliminary an accelerated basis. requirements for certificates. agendas and other information to Proxies: DaimlerChrysler will solicit shareholders approximately one month I. Self-Regulatory Organization’s proxies in a manner that combines before the meeting. DaimlerChrysler has Statement of the Terms of Substance of characteristics of both the German and agreed to prepare and mail stockholder the Proposed Rule Change U.S. markets. This rule change meeting materials approximately 45 The Exchange is proposing to adopt interprets Paragraphs 401.03 and 402 of days prior to its meeting, permitting the two interpretations under its rules to the Manual to accept DaimlerChrysler’s solicitation of proxies in the United accommodate the trading of proposed proxy procedures. States in the currently accepted time DaimlerChrysler AG II. Self-Regulatory Organization’s frame. The company also has agreed to (‘‘DaimlerChrysler’’). Daimler-Benz AG give the Exchange 10 days’ notice of the (‘‘Daimler-Benz’’) is combining with Statement of the Purpose of, and Statutory Basis for, the Proposed Rule record date. Chrysler Corporation (‘‘Chrysler’’) in a The coincidence of the record and Change series of transactions pursuant to which meeting date also raises the possibility Daimler-Benz will ultimately be merged In its filing with the Commission, the that a selling shareholder could give a into DaimlerChrysler and Chrysler will Exchange included statements proxy and then sell the shares, with the become a wholly owned subsidiary of concerning the purpose of and basis for buyer also getting a proxy. This could DaimlerChrysler. the proposed rule change and discussed lead to double voting. To address this DaimlerChrysler is a stock corporation any comments it received on the issue, both The Bank of New York as incorporated under the laws of the proposed rule change. The text of these transfer agent (the ‘‘Transfer Agent’’) Federal Republic of Germany with a statements may be examined at the and Automatic Data Processing single class of common stock—ordinary places specified in Item III below. The (‘‘ADP’’), the proxy agent for most shares, no par value (‘‘Ordinary Exchange has prepared summaries, set member organizations, will institute Shares’’)—that will trade on both the forth in sections A, B and C below, of procedures to monitor changes in the NYSE and the Frankfurt Stock the most significant aspects of such shareholder list between the date the Exchange, as well as on other exchanges statements. proxy material is mailed out and the around the world. The register for the A. Self-Regulatory Organization’s date of the meeting. These procedures Ordinary Shares will be administered by Statement of the Purpose of, and will be designed (i) to cancel the votes Deutsche Bank AG, DaimlerChrysler’s Statutory Basis for, the Proposed Rule of persons who submit proxies but sell transfer agent and registrar in Germany, Change their shares prior to the meeting date, and The Bank of New York, and (ii) to facilitate voting by persons DaimlerChrysler’s transfer agent and (1) Purpose who purchase shares after the time the registrar in the United States. The purpose of the proposed rule proxy material is mailed out, but before Transactions in the Ordinary Shares change is to provide two interpretations the meeting date. The second purpose of will be cleared through the central under the Exchange’s rules to the proposed rule change is to accept clearing systems of both countries. The accommodate the listing and trading of these procedures as being in compliance Depository Trust Company (‘‘DTC’’) in DaimlerChrysler. These interpretations with NYSE procedures. the United States and Deutsche Bo¨rse pertain to DaimlerChrysler’s share Both the Transfer and ADP will Clearing in Germany. certificates and voting procedures. produce shareholder lists on the day Although the Ordinary Shares are designated for mailing the proxy issued by a Germany company, they Certificates material (approximately 30–45 days have many characteristics that are The DaimlerChrysler share certificates prior to the meeting). The Transfer similar to shares of common stock will conform in most respects to the Agent’s list will reflect the names of issued by U.S. companies. For example, requirements in Paragraphs 501.03 and registered holders and ADP’s list will while most German stocks are in bearer 502 of the Manual. The only exceptions reflect the names of beneficial owners. form, DaimlerChrysler shares will be in are that the vignettes (pictures) will not Prior to the meeting date, the Transfer registered form, the same as U.S. shares. be fully steel engraved and the form of Agent and ADP will each produce a However, the form of the stock endorsement will provide for German current shareholder list. If holders no certificate will have certain registry. The Exchange believes that longer appear on the list, then votes characteristics more similar to these are relatively minor attributed to proxies submitted by them certificated shares of common stock of inconsistencies with current will be canceled. If new holders appear, a German company than of a U.S. requirements, and one purpose of the proxy materials will be mailed to them company. In addition, DaimlerChrysler rule change is to accept the by the Transfer Agent, in the case of will pay dividends and call stockholder DaimlerChrysler share certificates as registered owners, and by ADP, in the meetings and conduct voting at such proposed. case of beneficial owners. meetings generally in accordance with The shareholders lists can be updated German practices. This requires the Voting periodically up until the date of the Exchange to adopt two interpretations of Under German law, only stockholders meeting. If practicable, proxy materials its rules to accommodate the listing and who hold shares on the date of the will be mailed to any new holders on a trading of DaimlerChrysler: stockholders meeting are entitled to best efforts basis. Such best efforts may Certificates: The Frankfurt Stock vote. Accordingly, the record date for include electronic notification and Exchange rules governing stock voting at a stockholder meeting is the expedited delivery service. The proxy certificates are somewhat different than meeting date. In contrast, Exchange materials will describe voting the Exchange’s rules. To accommodate rules require 10 days’ notice of a record procedures in detail. Notices will be those differences, the NYSE is date and 30 days between record and included advising of the automatic proposing to adopt an interpretation of meeting date. DaimlerChrysler will revocation of the proxy if the holder Paragraphs 501.03 and 502 of the modify its current practice to sells stocks prior to the meeting. Finally, Exchange’s Listed Company Manual accommodate the notice period in the as a check and balance, the total vote (the ‘‘Manual’’) so the DaimlerChrysler United States. In Germany, there already cast in nominee name will not be Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58437 permitted to exceed the total position so III. Solicitation of Comments necessary to accommodate the unique held. Interested persons are invited to aspects to DaimlerChrysler’s share In addition, DaimlerChrysler submit written data, views and certificates. Moreover, the change is shareholders can vote in person at a arguments concerning the foregoing, minor, and will not impinge on investor shareholders’ meeting. Under German including whether the proposed rule protection and the public interest. law, a shareholder must give the change is consistent with the Act. The Commission also believes that it company notice of his or her intent to Persons making written submissions is reasonable for the NYSE to interpret vote in person no later than three should file six copies thereof with the the Manual to accept DaimlerChrysler’s business days prior to the meeting, and Secretary, Securities and Exchange proxy procedures. By mailing the person must be a record holder on Commission, 450 Fifth Street, NW, stockholder meeting materials the meeting date.3 Washington, DC 20549. Copies of the approximately 45 days prior to its submission, all subsequent annual meeting, DaimlerChrysler will (2) Basis amendments, all written statements give shareholders the same type of The basis under the Act for this with respect to the proposed rule advance notification provided for in the proposed rule change is the requirement change that are filed with the Manual. Moreover, DaimlerChrysler’s under Section 6(b)(5) of the Act 4 that an Commission, and all written proxy procedures will cancel proxies for exchange have rules that are designed to communications relating to the shares sold prior to the meeting, and prevent fraudulent and manipulative proposed rule change between the will facilitate voting by persons who acts and practices, to promote just and Commission and any person, other than purchase shares during the month equitable principles of trade, to foster those that may be withheld from the leading up to the meeting. In that way, cooperation and coordination with public in accordance with the the Exchange’s proxy procedures persons engaged in regulating, clearing, provisions of 5 U.S.C. 552, will be regarding DaimlerChrysler appear to be settling, processing information with available for inspection and copying in substantially equivalent to the NYSE’s respect to, and facilitating transactions the Commission’s Public Reference existing standards, by permitting the in securities, to remove impediments to Section, 450 Fifth Street, NW, votes cast at the annual meeting to and perfect the mechanism of a free and Washington, DC 20549. Copies of such accurately reflect the company’s open market and a national market filing will also be available for shareholders at the time of the meeting. system, and, in general, to protect inspection and copying at the principal The Exchange has requested that the investors and the public interest. office of the NYSE. All submissions Commission approve the proposed rule should refer to File No. SR–NYSE–98– change prior to the thirtieth day after B. Self-Regulatory Organization’s 37 and should be submitted by Statement on Burden on Competition publication of the proposal in the November 20, 1998. Federal Register. According to the The proposed rule change does not IV. Commission’s Findings and Order Exchange, the trading of impose any burden on competition that Granting Accelerated Approval of DaimlerChrysler shares on a ‘‘when is not necessary or appropriate in Proposed Rule Change issued’’ basis is scheduled to commence furtherance of the purposes of the Act. as early as October 26, 1998. The The Commission finds that the Exchange states that approval of the rule C. Self-Regulatory Organization’s NYSE’s proposal to interpret the Manual change by the date will facilitate the Statement on Comments on the to accommodate the listing and trading maintenance of an orderly market in the Proposed Rule Change Received From of DaimlerChrysler shares is consistent shares of DaimlerChrysler. The Members, Participants or Others with the Act and the rules and Exchange further states that without regulations thereunder applicable to a accelerated approval of this proposed The Exchange has not solicited national securities exchange.5 rule change, there will be uncertainty in comments on this proposed rule change. Specifically, the Commission finds that the market regarding the form of The Exchange has not received any the proposed rule change is consistent DaimlerChrysler certificates and the unsolicited written comments from with Section 6(b)(5) of the Act 6 in that procedures governing DaimlerChrysler members or other interested parties. it will remove impediments to and proxies. perfect the mechanism of a free and 3 With respect to dividends, DaimlerChrysler’s open market, and will protect investors The Commission finds good cause for record date also will be the date of the company’s approving the proposed rule change annual meeting (like most German companies, and the public interest, by enabling the DaimlerChrysler pays dividends annually). This NYSE to serve as a market for shares of prior to the thirtieth day after the date will make it impossible to trade the stock ‘‘ex- DaimlerChrysler (rather than American of publication of notice of filing in the dividend’’ on the Exchange in the normal course. depositary receipts) while maintaining Federal Register. The Commission Accordingly, the Exchange will use its existing believes that it is necessary to approve flexibility under Exchange Rule 235 and Paragraph trading standards that are substantially 703.02 of the Manual to trade DaimlerChrysler stock equivalent to the NYSE’s existing the NYSE’s proposal on an accelerated with ‘‘due bills’’ for the period that the stock standards. basis to permit the public to begin to normally would trade ex-dividend. This is a process The Commission believes that it is trade the newly issued DaimlerChrysler pursuant to which the seller will receive the reasonable for the NYSE to interpret the shares on the NYSE without doubts dividend, but is obligated to pay the dividend to the buyer of the shares. This process will be transparent Manual to permit it to list about whether the share certificates are to investors since due bills net out in the clearing DaimlerChrysler shares despite the acceptable under NYSE rules, and process. To avoid any potential confusion as to the share certificates’ differences from the without questions about how ‘‘ex-dividend date,’’ the Exchange will endeavor to Manual’s standards for engraving and DaimlerChrysler will conduct proxy transmit notices to member organizations well in advance of the dividend declaration date. endorsements. The interpretation is voting. The ex-dividend date for DaimlerChrysler shares It is therefore ordered, pursuant to will be the day following the record date. That is 5 In approving this rule, the Commission has Section 19(b)(2) of the Act 7 that the in contrast to the Exchange’s typical practice, in considered the proposed rule’s impact on which the ex-dividend date is two business days efficiency, competition and capital formation. 15 proposed rule change (SR–NYSE–98– prior to the record date. U.S.C. 78c(f). 4 15 U.S.C. 78f(b)(5). 6 15 U.S.C. 78f(b)(5). 7 15 U.S.C. 78s(b)(2). 58438 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

37) is hereby approved on an (A) Self-Regulatory Organization’s III. Date of Effectiveness of the accelerated basis. Statement of the Purpose of, and Proposed Rule Change and Timing For For the Commission, by the Division of Statutory Basis for, the Proposed Rule Commission Action Market Regulation, pursuant to delegated Change 5 authority.8 Section 17A(b)(3)(F) of the Act Margaret H. McFarland, requires that the rules of a clearing The purpose of the proposed rule agency be designed to promote the Deputy Secretary. change is to modify OCC’s rules and by- prompt and accurate clearance and [FR Doc. 98–29120 Filed 10–29–98; 8:45 am] laws governing the issuance, clearance, settlement of securities transactions. BILLING CODE 8010±01±M and settlement of options on publicly The Commission believes that the traded interests in unit investment proposed rule change is consistent with trusts, investment companies, or similar this obligation because the amendments SECURITIES AND EXCHANGE entities holding portfolios or baskets of should make it clear that stock fund COMMISSION common stocks.3 Specifically, the options are stock option contracts for all [Release No. 34±40595; File No. SR±0CC± proposed rule change will introduce a purposes under OCC’s rules and by- 98±08] defined term ‘‘stock fund shares’’ to laws. Furthermore, the rule change cover such publicly traded interests and should promote the prompt and Self-Regulatory Organizations; The a defined term ‘‘stock fund option’’ to accurate clearance and settlement of Options Clearing Corporation; Notice cover the options thereon and will stock fund options by providing for of Filing and Order Granting adjustments to the terms of stock fund Accelerated Approval of a Proposed substitute these defined terms where appropriate in the by-laws and rules. options for capital gains distributions Rule Change Regarding Stock Fund with respect to the underlying stock Options For example, the proposed rule change will abbreviate Interpretation and Policy fund shares. The Commission finds good cause for October 23, 1998. .01 under Section 9 of Article VI of the approving the proposed rule change Pursuant to Section 19(b)(1) of the by-laws through the use of the newly prior to the thirtieth day after the Securities Exchange Act of 1934 defined term stock fund option. (‘‘Act’’),1 notice is hereby given that on publication of notice of the filing. In addition, the proposed rule change July 22, 1998, The Options Clearing Pursuant to File No. OCC–97–02, OCC Corp. (‘‘OCC’’) filed with the Securities will provide for adjustments to the amended its rules to provide for the and Exchange Commission terms of stock fund options for clearance and settlement of stock fund (‘‘Commission’’) the proposed rule distributions of capital gains with options as proposed for trading by the 6 change as described in Items I and II respect to the underlying stock fund American Stock Exchange (‘‘AMEX’’). below, which items have been prepared shares. The proposed rule change will The changes proposed in this rule filing primarily by OCC. The Commission is add Interpretation and Policy .08 to will make technical changes that will publishing this notice to solicit Section 11 of Article VI of the by-laws facilitate the clearance and settlement of comments from interested persons and to reflect that the terms of stock fund AMEX’s product which is scheduled to to grant accelerated approval of the options will be adjusted for all capital begin trading in November, 1998. proposal. gains distributions, regardless of size, by IV. Solicitation of Comments I. Self-Regulatory Organization’s the issuer of the underlying stock fund Interested persons are invited to Statement of the Terms of Substance of shares. submit written data, views, and the Proposed Rule Change OCC believes that the proposed rule arguments concerning the foregoing, Under the proposed rule change, OCC change is consistent with Section 17A of including whether the proposed rule will amend its rules and by-laws which the Act 4 because the proposed changes change is consistent with the Act. govern options on publicly traded will promote the prompt and accurate Persons making written submissions interests in unit investment trusts, clearance and settlement of transactions should file six copies thereof with the investment companies, or similar in stock fund options. Secretary, Securities and Exchange entities holding portfolios or baskets of Commission, 450 Fifth Street, N.W., (B) Self-Regulatory Organization’s common stocks. Washington, D.C. 20549. Copies of the Statement on Burden on Competition submission, all subsequent II. Self-Regulatory Organization’s amendments, all written statements Statement of the Purpose of, and OCC does not believe that the with respect to the proposed rule Statutory Basis for, the Proposed Rule proposed rule change would impose any change that are filed with the Change burden on competition. Commission, and all written In its filing with the Commission, (C) Self-Regulatory Organization’s communications relating to the OCC included statements concerning Statement on Comments on the proposed rule change between the Commission and any person, other than the purpose of and basis for the Proposed Rule Change Received From those that may be withheld from the proposed rule change and discussed any Members, Participants or Others comments it received on the proposed public in accordance with the rule change. The text of these statements Written comments were not and are provisions of 5 U.S.C. 552, will be may be examined at the places specified not intended to be solicited with respect available for inspection and copying in in Item IV below. OCC has prepared to the proposed rule change, and none the Commission’s Public Reference summaries, set forth in sections (A), (B), have been received. Section, 450 Fifth Street, N.W., and (C) below, of the most significant Washington, D.C. 20549. Copies of such aspects of such statements.2 filing also will be available for 3 The Commission approved OCC’s issuance, inspection and copying at the principal 8 17 CFR 200.30–3(a)(12). clearance, and settlement of such options in office of OCC. All submissions should 1 15 U.S.C. 78s(b)(1). Securities Exchange Act Release No. 40132 (June 2 The Commission has modified the text of the 25, 1998), 63 FR 36467 [File No. SR–OCC–97–02]. 5 15 U.S.C. 78q–1(b)(3)(F). summaries prepared by OCC 4 15 U.S.C. 78q–1. 6 Supra, note 3. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58439 refer to File No. SR–OCC–98–08 and Amendment No. 2 to the proposed rule Proposed Rule 6.87(d)(4) will should be submitted by November 20, change.5 This order approves the eliminate language which currently 1998. proposed rule change. Also, states that if a market maker logs onto It is therefore ordered, pursuant to Amendment No. 2 is approved on an Auto-Ex during Expiration Week, then Section 19(b)(2) of the Act,7 that the accelerated basis. he is required to remain on the system proposed rule change (File No. SR– II. Description of the Proposal for the duration of that Expiration Week. OCC–98–08) be and hereby is approved. When the Auto-Ex rule was initially For the Commission by the Division of Rules 6.87, 10.13, and 10.14 pertain to adopted, there was some concern that Market Regulation, pursuant to delegated the Exchange’s market maker eligibility there might be inadequate market maker 8 authority. standards for participation in the Auto- participation on Auto-Ex during Margaret H. McFarland, Ex system. PCX has proposed that a Expiration Week. Based on several Deputy Secretary. provision addressing joint accounts be years’ experience, the Exchange now [FR Doc. 98–29118 Filed 10–29–98; 8:45 am] added to Rule 6.87(d)(1) stating that believes that there is no lack of market BILLING CODE 8010±01±M participants in a joint account may log maker participation on the Options onto Auto-Ex in a trading crowd outside Floor that justifies a need for the of their primary appointment zones, but Expiration Week requirement. If there is SECURITIES AND EXCHANGE only if they are substituting for another inadequate Auto-Ex participation in a COMMISSION participant in the same joint account, particular options issue,8 however, where participation in Auto-Ex trades at Floor Officials have the authority to [Release No. 34±40598; File No. SR±PCX± such station would have been 97±48] require market makers to log onto Auto- appropriate for the substituted party, Ex.9 Self-Regulatory Organizations; Pacific and they have obtained the approval of 6 There are two limited situations, Exchange, Inc.; Order Approving two Floor Officials. Moreover, the Exchange is proposing to clarify this however, in which participation in the Proposed Rule Change and Notice of Auto-Ex system is mandatory—both are Filing and Order Granting Accelerated rule by stating that market makers who have not been assigned a primary proposed to be codified in the rule. Approval of Amendment No. 2 to Under section (d)(4) of Rule 6.87, a Proposed Rule Change Relating to appointment zone may not participate on the Auto-Ex system, and further, that market maker who has logged onto Market Maker Participation in the Auto-Ex at any time during a trading Pacific Exchange's Automatic all Auto-Ex transactions will count toward a market maker’s in person and day must participate on the Auto-Ex Execution System for Options (``Auto- system in that option issue whenever Ex'') primary appointment zone requirements. present in that trading crowd during October 23, 1998. Rule 6.87(d)(3), as proposed, will that trading day. Under subsection require that, unless exempted by two (d)(5), market makers may not log off the I. Introduction Floor Officials, market makers may log Auto-Ex wheel during the first ten On December 18, 1997, the Pacific onto Auto-Ex only in person and may minutes of a ‘‘fast market’’ 10 that has Exchange, Inc. (‘‘PCX’’ or ‘‘Exchange’’) continue on the system only so long as been declared in an issue traded ‘‘on submitted to the Securities and they are present in that trading crowd. that wheel,’’ 11 in the absence of an Exchange Commission (‘‘SEC’’ or Moreover, absent an exemption from the exemption from two Floor Officials. ‘‘Commission’’), pursuant to Section foregoing limitation, market makers may PCX proposes that subsection (e) of 19(b)(1) of the Securities Exchange Act not remain on Auto-Ex, and must log off Rule 6.87 be amended by adding a of 1934 (‘‘Act’’) 1 and Rule 19b–4 when they have left the trading crowd, provision specifically prohibiting thereunder,2 a proposed rule change unless the departure is for a brief market makers from ‘‘directed which amended its rules relating to interval (i.e., no longer than 15 minutes, trading’’ 12 of option contracts resulting market maker participation in the under normal circumstances).7 Exchange’s automatic execution system Options Traders must sign-off the Wheel when for options (‘‘Auto-Ex’’). On February 5 See letter from Michael D. Pierson, Senior leaving the Wheel assignment area for more than a brief interval, which means five minutes or less, or 27, 1998, the Exchange submitted Attorney, Regulatory Policy, PCX, to Mignon McLemore, Attorney, SEC, dated October 6, 1998 in matters of a dispute, the amount of time it takes Amendment No. 1 to the proposed rule (‘‘Amendment No. 2’’). In Amendment No. 2, PCX: to call in a Floor Official and inform him of the 3 change. deletes a proposal made in the initial rule issue at hand. Compare CBOE Rules 24.16(c)(iii) A notice of the proposed rule change submission that would have removed rule language (stating that any member of the joint account that stating that a market maker logged onto Auto-Ex but has been logged onto RAES must log off whenever appeared in the Federal Register on he leaves the SPX trading crowd for other than a March 10, 1998.4 The Commission who leaves the trading crowd is responsible for trades allocated to him during his absence; provides brief interval) and 24.17(a)(iv) (stating that an received no comment letters addressing PCX with the authority to log a market maker off individual member who is logged onto RAES must the proposed rule change. On October 7, Auto-Ex if he has left the trading crowd for more log off whenever he leaves the trading crowd). 1998, the Exchange submitted than a brief interval; and makes certain minor 8 In PCX Rules 6.87(d)(1), (2), (4), and (6) the term clarifications regarding the operation of the ‘‘issue’’ or ‘‘option issue’’ is used instead of or proposal. replaces the term ‘‘class.’’ The Exchange believes 7 15 U.S.C. 78s(b)(2). 6 Floor Officials may exercise their discretion in that ‘‘class’’ does not encompass all options of the 8 17 CFR 200.30–3(a)(12). determining whether one market maker may underlying stock. Thus, for purposes of this 1 15 U.S.C. 78s(b)(1). substitute for another. Substitution is usually only proposal, the term ‘‘issue’’ or ‘‘option issue’’ refers 2 17 CFR 240.19b–4. allowed when a market maker is on vacation or out to all types of option contracts (puts and calls) of 3 See letter from Michael D. Pierson, Senior sick. However, there may be cases when the market the same class of options covering the same Attorney, Regulatory Policy, PCX, to Mignon maker being substituted for may actually be on the underlying security. See Amendment No. 2, note 5 McLemore, Attorney, SEC, dated February 26, 1998 floor but not in the joint account crowd. Telephone supra. (‘‘Amendment No. 1’’). In Amendment No. 1, PCX call between Michael D. Pierson, Senior Attorney, 9 PCX Rule 6.87(d)(6). explains the disciplinary procedure under both the Regulatory Policy, PCX and Mignon McLemore, 10 PCX Rule 6.28. Minor Rule Plan (‘‘MRP’’) and the Summary Attorney, SEC, August 24, 1998. 11 See note 33 infra. Sanction Procedure (‘‘SSP’’) and how ‘‘the wheel’’ 7 Compare Securities Exchange Act Rel. No. 12 ‘‘Directed trading’’ is a violation of Rule 6.73 rotation operates. 38881 (July 28, 1997), 62 FR 41987 (August 4, (‘‘Manner of Bidding and Offering’’), which 4 Securities Exchange Act Rel. No. 39707 (March 1997). The Philadelphia Stock Exchange, Inc. provides in part: ‘‘All bids and offers shall be 3, 1998), 63 FR 11700. amended Advice F–24 to state that Registered Continued 58440 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices from recent executions over Auto-Ex. three and five failures in a twelve- participate in a joint account that may The rule states that market makers who month period, the fine is $250 per be outside his primary appointment receive an execution through Auto-Ex violation; and for six or more failures in zone when the other joint account may not re-direct the option contracts a twelve-month period, the fine is $500 participant is unavailable to participate. from that trade to another market maker per violation.17 The Exchange’s SSP 18 For example, if the market maker is on without first giving the other Members has also been amended to incorporate vacation or out sick, he would be in the trading crowd an opportunity to violations of the log-off requirement. deemed unavailable and substitution, in participate. Under the relevant procedures, two these cases, would be allowed.21 Subsection (f) of Rule 6.87, as Floor Officials may summarily fine a The Commission believes that PCX’s proposed, adds a provision on price Member for a designated rule violation proposed codification of Auto-Ex log-on adjustments to codify procedures if certain procedures are followed. and log-off procedures should clarify outlined in the Exchange’s initial the responsibilities and duties of market proposal to conduct the POETS pilot.13 III. Discussion makers and Floor Officials. The The Commission permanently approved The Commission believes that the Commission notes that the proposal the pilot in 1993.14 The provision states proposed rule change is consistent with should prevent inequities that can occur that due to instantaneous execution, an the Act and the rules and regulations in the system if wheel-assigned trades incorrect quote appearing on the screen promulgated thereunder. Specifically, are allocated to market makers, who are may result in an Auto-Ex trade at an the Commission believes that approval logged on the system, but not in the incorrect price, and that an Auto-Ex of the proposed rule change is trading crowd. While current market trade executed at an erroneous quote consistent with Section 6(b)(5) 19 of the maker participation levels appear to should be treated as a trade reported at Act.20 Pursuant to Section 6(b)(5), the make the mandatory log-on requirement an erroneous price. It also states that the proposed rule change benefits the during Expiration Week obsolete, the price of the Auto-Ex trade should be public because refining the eligibility Commission suggests that the Exchange adjusted to reflect accurately the market criteria to reflect the actual trading monitor participation levels, especially quote at the time of execution, and that environment of the Exchange should during market declines and if necessary, this will result in public customers and improve the operation of the POETS exercise its authority to ensure market makers receiving correct files at system, thereby contributing to the substantial participation. prevailing market quotes through Auto- maintenance of fair and orderly markets The Commission believes extending Ex. It further states that the and the protection of investors. The the ‘‘directed trading’’ 22 prohibition to determination as to whether an Auto-Ex Commission believes that the proposal transactions executed over Auto-Ex will trade was executed at an erroneous should help to ensure adequate market promote just and equitable principles of price is to be made by two Floor maker participation in Auto-Ex, which trade, as every member in the trading Officials, and that in making their should, in turn, contribute to the crowd will be given an opportunity to determination, the Floor Officials effective and efficient execution of participate in the transactions. should consider such factors as: (1) The public investor orders at the best Moreover, extending the prohibition of length of time the allegedly incorrect available price. directed trading to Auto-Ex transactions quote was displayed; (2) whether any The Commission believes the should serve as a deterrent to price non-Auto-Ex trades were effected at the proposed joint account provision will collusion as a market maker cannot same price as the Auto-Ex transaction; provide more continuity and depth to designate one member in the trading and (3) whether any members of the the Auto-Ex system as the eligibility crowd to accept certain bids and offers. trading crowd were aware of orders criteria have been expanded to allow a The Commission believes the addition actively being represented in the trading market maker to participate outside his of the provision on price adjustments crowd that appear to have been ‘‘printed appointment zone under the limited provides the Exchange with the 15 through’’ by the Auto-Ex trade. circumstance where he is substituting flexibility to quickly correct an Auto-Ex Finally, Rules 10.13 and 10.14 have for another market maker in the same trade, if two Floor Officials determine been amended to expressly outline the joint account. The Commission that it was executed at an incorrect fines to be levied and disciplinary understands that the purpose of this price. The rule’s procedures protect the measures to be taken in the event of rule is to allow a market maker to public customer and market maker by noncompliance with the log-off ensuring that once an erroneous quote requirement established in Rule 17 Compare CBOE Rules 24.16(h) and 24.17(g) has been detected, their orders are filled 6.87(d)(3). A market maker who fails to and Phlx Rule 970 and Floor Procedure Advice F– according to prevailing market quotes comply with the log-off requirement 24 (fee schedules for failure to adhere to log on and through Auto-Ex. Moreover, the rule will be subject to the following fines off requirements). 18 provides objective criteria for the Floor under the Exchange’s MRP.16 If the PCX Rule 10.14. 19 Section 6(b)(5) requires the Commission to Officials to use in determining whether number of failures is between one and determine that a registered national securities an Auto-Ex trade was executed at an two during a twelve-month period, the exchange’s rules are designed to promote just and erroneous price, which should assist fine is $100 per violation; for between equitable principles of trade, and, in general, to protect investors and the public interest. them in determining if and when price 20 Pursuant to Section 3(f) of the Act, the adjustments should be made. general ones and shall not be specified for Commission has considered the proposed rule’s acceptance by particular members.’’ Furthermore, this provision codifies impact on efficiency, competition, and capital 13 similar procedures originally outlined Securities Exchange Act Rel. No. 27423 formation. The changes made to the eligibility 23 (November 6, 1989), 54 FR 47434 (November 14, criteria should provide depth to the market by in the POETS pilot, which was 1989) (notice proposing to conduct POETS pilot) at ensuring that a contra-party is available to interact subsequently approved in 1993.24 Exhibit 4. with the customers’ orders. This added depth 14 Securities Exchange Act Rel. No. 32703 (July should result in faster customer trade executions, 21 30, 1993), 58 FR 42117 (August 6, 1993). thus improving efficiency in the marketplace. This Telephone call between Michael D. Pierson, 15 Compare CBOE Rule 24.15 (a)(ii) (stating that added depth to the Auto-Ex system should also Senior Attorney, Regulatory Policy, PCX and a trade executed on RAES at an erroneous quote promote competition. As these trades are executed Mignon McLemore, Attorney, SEC, August 24, should be treated as a trade reported at an at the NBBO, the market maker receives the spread 1998. erroneous price and adjusted to reflect the accurate on these transactions, which should provide 22 PCX Rule 6.73. market after receiving a Floor Official’s approval). incentive for market makers to participate in the 23 See note 13 supra. 16 PCX Rule 10.13. system. 15 U.S.C. 78c(f). 24 See note 14 supra. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58441

The Commission believes that the securities exchange.27 Specifically, the obligated to honor trades executed Exchange’s proposed changes to its Commission believes the amendment is through Auto-Ex for all Auto-Ex eligible minor rule plan are reasonable and consistent with Section 6(b)(5) 28 of the issues assigned to the particular wheel provide fair procedures for Act, because it will facilitate the has been removed, because the wheel no appropriately disciplining members and operation of the Auto-Ex system, which longer operates as it did when this member organizations for minor rule will promote just and equitable requirement was initially promulgated. violations that warrant some type of principles of trade, foster cooperation According to Amendment No. 2, each punitive measure, but for which a full and coordination with persons engaged morning before the opening, the system disciplinary hearing would be an in regulating, clearing and settling, and will ‘‘shuffle’’ the order of market inappropriate waste of resources in light processing information with respect to makers on an issue-by-issue basis. For of the minor nature of the violation. The facilitating transactions in securities. example, the order of the market makers Commission notes that violations of the The joint account provision in Rule may be A, B, C for issue no. 1 and A, Exchange’s log-off requirement are 6.87(d)(1) attempted to clarify that all B, C for issue no. 2, etc. The first Auto- objective and easily verifiable, and thus, Auto-Ex transactions would count Ex trade of the day will be assigned at lend themselves to the use of expedited toward a market maker’s in-person and random for each issue (e.g., in issue no. proceedings. Specifically, the issue of primary appointment zone 1, the first trade may be assigned to C), whether a market maker has left the requirements. (emphasis added) The but each subsequent trade will be trading crowd for more than the fifteen Commission believed this language assigned in order, on a rotating basis minute interval may be determined could have been misinterpreted to mean (e.g., A, B, C, A, B, C, etc.). The same objectively and adjudicated quickly all Auto-Ex transactions, including procedure is followed for each issue, so without complicated evidentiary and those in joint accounts, would count in effect, the number of issues assigned interpretive inquiries. The Commission toward the primary appointment zone to a post determines the number of believes that the proposed fine schedule requirement, even those transactions in ‘‘wheels’’ at that post. Each wheel and the SSP should serve to encourage options issues 29 which were not rotates separately from the others and consistent market maker participation in assigned to the market maker’s primary trades in one issue will have no impact Auto-Ex and to deter repeated violations appointment zone. Amendment No. 2 on the order in which trades are of the Exchange’s rules. clarifies that if an option issue is assigned in another issue at the same The Commission was initially included in a market maker’s primary post.33 concerned, however, that the appointment zone, then Auto-Ex Furthermore, the Auto-Ex system also Exchange’s amended fine schedules and transactions in that issue that are made allow issues at a trading post to be split disciplinary procedures might cause a on behalf of the market maker will up among the crowd.34 For example, A member to be found in violation of Rule count towards the market maker’s may only be on Auto-Ex for issues 1 and 6.87(d)(3) and fined under both the MRP primary appointment zone 2, while B and C may be on the system and the SSP. In response, the Exchange requirement.30 for issues 3 through 10. 35 Therefore, states that its Department of Options In the originally submitted proposed because a market maker may not be Compliance coordinates the processing rule change, the Exchange proposed assigned all of the issues at a particular of all violations committed on the eliminating language in Rule 6.87(d)(3) trading post, the language obligating Options Floor under both the MRP and that holds market makers responsible market makers ‘‘to honor trades for all the SSP.25 Amendment No. 1 further for trades executed through Auto-Ex Auto-Ex eligible issues assigned to a states that before any summary sanction during their absence from the trading particular wheel’’ is inaccurate and is issued, Floor Officials must contact crowd as well as for all Auto-Ex-eligible misleading, given how the wheel Options Compliance to determine issues assigned to the particular operates. Thus, the language has been whether the Member has previously wheel.31 The Exchange failed to provide removed.36 violated the rule, so that the amount of any written justification for this The Commission finds good cause for the sanction may be assessed. Options proposed change. Upon the request of approving proposed Amendment No. 2 Compliance therefore, will have been Commission staff, PCX agreed to prior to the thirtieth day after the date notified of the action taken. In addition, withdraw this proposed change. of publication of notice of filing thereof if Floor Officials issue a sanction under In Amendment No. 2, the Exchange in the Federal Register. Amendment the SSP, the floor citation must contain proposed giving itself the authority to No. 2 addresses a Commission concern an indication of the amount of the fine log a market maker off Auto-Ex if a that a market maker will not be able to pursuant to Rule 10.14(a)(3). This market maker has left the trading crowd circumvent the primary appointment 32 indication will serve to notify Options or floor for more than a brief interval. zone requirements by using transactions Compliance that the matter has been This provision is consistent with the in a joint account not in his primary resolved. requirement that only market makers appointment zone to meet his physically present in the trading crowd participation requirements. Thus, the IV. Commission’s Findings and Order are entitled to trade on Auto-Ex. It may joint account must be in the substituting Granting Accelerated Approval of also help reduce unintended position market maker’s primary appointment Amendment No. 2 exposure that can be incurred by a zone for the transactions to count The Commission has reviewed market maker who mistakenly forgets to toward his appointment zone carefully the Exchange’s Amendment log off Auto-Ex. requirements. The Commission was also No. 2 and believes, for reasons set forth The proposed requirement in Rule concerned that the proposed rule below, the amendment is consistent 6.87(d)(3) that the market maker be change did not address the possibility of with the requirements of Section 6 of 27 See note 20 supra. 33 the Act,26 and the rules and regulations Id. at p. 2. This explanation supersedes the 28 15 U.S.C. 78f(b)(5). previous explanation provided in Amendment No. thereunder applicable to a national 29 See note 8 supra. 1. See Amendment No. 1, note 3 supra. 30 See Amendment No. 2, note 5 supra. 34 See Amendment No. 2, p. 2, note 5 supra. 25 See Amendment No. 1, note 3 supra. 31 See note 33 infra. 35 Id. 26 15 U.S.C. 78f. 32 See Amendment No. 2, p. 1, note 5 supra. 36 Id. 58442 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices collusion or manipulation of a security V. Conclusion SMALL BUSINESS ADMINISTRATION if both participants were simultaneously For the above reasons, the logged-on and trading in the joint [Declaration of Disaster # 3139] account. PCX Rule 6.40(b)(1), however, Commission believes that the proposed rule change is consistent with the addresses this concern because it State of Mississippi (Amendment # 3) prevents a market maker who has a provisions of the Act, and in particular financial arrangement with another with Section 6(b)(5). In accordance with information member from trading in the same It is therefore ordered, pursuant to received from the Federal Emergency trading crowd at the same time. Section 19(b)(2) of the Act,37 that the Management Agency, the above- proposed rule change (SR–PCX–97–48), numbered Declaration is hereby The Commission believes that PCX’s including Amendment No. 2, is amended to include Jasper County, removal of originally proposed rule approved. Mississippi as a disaster area due to language that held market makers For the Commission, by the Division of damages caused by Hurricane Georges accountable for their failure to follow Market Regulation, pursuant to delegated beginning on September 25, 1998 and established procedures was antithetical authority.38 continuing through October 5, 1998. to its investor protection mandate. The Margaret H. McFarland, In addition, applications for economic Commission understands the injury loans from small businesses Exchange’s desire to address potential Deputy Secretary. located in the following contiguous inequitable benefits and system [FR Doc. 98–29119 Filed 10–29–98; 8:45 am] BILLING CODE 8010±01±M counties may be filed until the specified disruptions that could occur if a market date at the previously designated maker fails to follow procedure. location: Lauderdale, Newton, and Scott However, removing existing language in the State of Mississippi. Any counties that could arguably serve as a deterrent SMALL BUSINESS ADMINISTRATION contiguous to the above-named primary to these violations was, in the county and not listed herein have been Commission’s view, inappropriate. previously declared. [Declaration of Disaster # 3143] Amendment No. 2 was responsive to All other information remains the this concern by retracting the proposed State of Kansas (Amendment # 1) same, i.e., the deadline for filing elimination of the cited language. The applications for physical damage is Exchange proposed an alternate November 30, 1998 and for economic provision that allows it to log a market In accordance with information received from the Federal Emergency injury the termination date is July 1, maker off the system when a failure to 1999. follow the required log-off procedure Management Agency, the above- (Catalog of Federal Domestic Assistance occurs. This proposal strengthens the numbered Declaration is hereby Program Nos. 59002 and 59008.) ability of PCX to enforce compliance amended to include Douglas and Leavenworth Counties in the State of Dated: October 22, 1998. with Auto-Ex procedures and, Kansas as a disaster area due to damages accordingly, the Commission finds good Herbert L. Mitchell, caused by severe storms, flooding, and cause for accelerating approval of the Acting Associate Administrator for Disaster tornadoes which occurred October 1 Assistance. proposed amendment. through October 8, 1998. [FR Doc. 98–29114 Filed 10–29–98; 8:45 am] Interested persons are invited to In addition, applications for economic BILLING CODE 8025±01±P submit written data, views, and injury loans from small businesses arguments concerning the foregoing, located in the following contiguous including whether Amendment No. 2 is counties may be filed until the specified SMALL BUSINESS ADMINISTRATION consistent with the Act. Persons making date at the previously designated written submissions should file six Index to Approved SBA Reporting and location: Atchison, Jefferson, Osage, and Record Keeping Requirements copies thereof with the Secretary, Shawnee in the State of Kansas. Any Securities and Exchange Commission, counties contiguous to the above-named This revision is administrative in 450 Fifth Street, N.W., Washington, D.C. primary county and not listed herein nature and is intended to comply with 20549. Copies of the submission, all have been previously declared. the requirements of the Paperwork subsequent amendments, all written All other information remains the Reduction Act of 1995 as implemented statements with respect to the proposed same, i.e., the deadline for filing by 5 CFR part 1320 that agencies display rule change that are filed with the applications for physical damage is a current OMB control number assigned Commission, and all written December 13, 1998 and for economic by the Director, OMB on each agency communications relating to the injury the termination date is July 14, information collection requirement and, proposed rule change between the 1999. unless OMB determines it to be Commission and any person, other than inappropriate, an expiration date. (Catalog of Federal Domestic Assistance those that may be withheld from the Where the information collection Program Nos. 59002 and 59008.) public in accordance with the requirement exists as a document provisions of 5 U.S.C. 552, will be Dated October 23, 1998. separate from the regulations, the Small available for inspection and copying in Herbert L. Mitchell, Business Administration will also the Commission’s Public Reference Acting Associate Administrator for Disaster display the current OMB number in the Room. Copies of such filing will also be Assistance. document. Because this a available for inspection and copying at [FR Doc. 98–29115 Filed 10–29–98; 8:45 am] nonsubstantive revision dealing with the principal office of the PCX. All BILLING CODE 8025±01±P procedural matters, it is not subject to submissions should refer to the file the provisions of the Administrative number in the caption above and should 37 15 U.S.C. 78s(b)(2). Procedure Act (5 U.S.C 551 et seq) be submitted by November 20, 1998. 38 17 CFR 200.30–3(a)(12). requiring advance notice and comment. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58443

Dated: October 23, 1998. Thomas Dumaresq, Assistant Administrator for Administration.

Current OMB Expiration Control No. Information collection requirement Legal authority date

3245±0007 ...... SBA 990, SBA 991, SBA 994, SBA 994B, SBA 994C, SBA 994F, SBA 13 CFR 115.1 ...... 06/30/00 994H. 3245±0009 ...... SBA 480 ...... 13 CFR 121 ...... 09/30/99 3245±0015 ...... SBA 1010A, B, C ...... 13 CFR 124 ...... 04/30/01 3245±0016 ...... SBA 4, SBA 4±I, SBA 4 Sch. A, SBA 4L, EIB±SBA±841±1, SBA 4 Short .... 13 CFR 120 ...... 10/31/98 3245±0018 ...... SBA 5, SBA 739A, SBA 1368 ...... 13 CFR 123 ...... 04/30/01 3245±0024 ...... SBA 1167, SBA 1395 ...... 13 CFR 125 ...... 12/31/98 3245±0062 ...... SBA 415, SBA 415A ...... 13 CFR 107 ...... 09/30/99 3245±0063 ...... SBA 468 ...... 13 CFR 107.630 ...... 04/30/01 3245±0075 ...... SBA 20 ...... SBA SOP 6010.3 ...... 10/31/00 3245±0076 ...... SBA 793 ...... 13 CFR 112 ...... 10/31/00 3245±0077 ...... Reporting and Record Keeping Requirements on Non-Bank Lenders ...... 13 CFR 120.471 ...... 03/31/00 3245±0078 ...... SBA 1031 ...... 13 CFR 107.640 ...... 04/30/01 3245±0081 ...... SBA 25±28, SBA 33±34, SBA 1022 SBA 1022A, SBA 1065, SBA 444±C ... 13 CFR 107.1100 ...... 04/30/99 3245±0083 ...... SBA 415C ...... 13 CFR 107 ...... 02/28/00 3245±0084 ...... SBA 700 ...... 13 CFR 123.101 ...... 02/28/00 3245±0090 ...... SBA 59 ...... 13 CFR 130 ...... 06/30/99 3245±0091 ...... SBA 641, SBA 641A ...... SBA SOP 6010.3 ...... 06/30/01 3245±0096 ...... SBA 883, SBA 1375 ...... Presidential Proclamation Des- 02/28/99 ignating Small Business Week. 3245±0101 ...... SBA 355 ...... 13 CFR 121 ...... 09/30/99 3245±0108 ...... SBA 1062 ...... 13 CFR 130 ...... 08/31/00 3245±0109 ...... SBA 857 ...... 13 CFR 107.620 ...... 01/31/00 3245±0110 ...... SBA 1366, SBA 1391 ...... 13 CFR 123 ...... 09/30/99 3245±0116 ...... SBA 860 ...... 13 CFR 107 ...... 01/31/00 3245±0118 ...... SBA 856 ...... 13 CFR 107 ...... 09/30/98 3245±0121 ...... Governor's Request for Disaster Declaration ...... 13 CFR 123.3 ...... 01/31/00 3245±0123 ...... SBA 888 ...... SBA SOP 6010.3 ...... 09/30/99 3245±0124 ...... SBA 898 ...... SBA SOP 9054.4 ...... 09/30/98 3245±0131 ...... SBA 172 ...... SBA SOP 5050.4 ...... 09/30/98 3245±0132 ...... SBA 1149 ...... 13 CFR 120 ...... 05/31/00 3245±0136 ...... SBA 987 ...... 13 CFR 123 ...... 09/30/98 3245±0140 ...... SBA 1222, SBA 1224 ...... 13 CFR 143.10 ...... 06/30/01 3245±0141 ...... SBA 843A, SBA 843B ...... 13 CFR 125.2 ...... 05/31/99 3245±0158 ...... SBA 1183 ...... SBA SOP 5050.4 ...... 09/30/99 3245±0169 ...... SBDC program and financial reports ...... 13 CFR 130 ...... 09/30/99 3245±0172 ...... SBA 1405 ...... 13 CFR 107 ...... 09/30/99 3245±0178 ...... SBA 912 ...... 13 CFR 120.191 ...... 07/31/00 3245±0183 ...... SBA 1419 ...... SBA SOP 6010.3 ...... 10/31/00 3245±0185 ...... SBA 1086 ...... 13 CFR 120.613 ...... 08/31/00 3245±0188 ...... SBA 413 ...... 13 CFR 120.191 ...... 03/31/00 3245±0189 ...... Business Loan reconsideration request ...... 13 CFR 120.193 ...... 03/31/00 3245±0191 ...... Reporting and Recordkeeping for lenders ...... 13 CFR 120.471 ...... 03/31/00 3245±0200 ...... SBA 1050 ...... Small business act section 7 .... 06/30/01 3245±0201 ...... SBA 147, SBA 148, SBA 159, SBA 160, SBA 160A, SBA 529B, SBA 928, 13 CFR 120.191 ...... 07/31/00 SBA 1059. 3245±0203 ...... SBA 104A ...... 13 CFR 125.5 ...... 03/31/00 3245±0225 ...... SBA 1531 ...... 13 CFR 125.5 ...... 05/31/99 3245±0228 ...... SBA 1540 ...... Public Law 95±507 ...... 05/31/01 3245±0289 ...... SBA 1843 ...... Title 5 U.S.C...... 07/31/99 3245±0301 ...... SBA 1941A, SBA 1941B, SBA 1941C, ...... 13 CFR 107 ...... 06/30/01 3245±0307 ...... SBA 1972 ...... 13 CFR 115 ...... 09/30/99 3245±0308 ...... SBA 1973 ...... 13 CFR 115 ...... 09/30/99 3245±0309 ...... Evaluation of the 7(a) and 504 guaranteed loan program ...... CFR 120.200 and 120.800 ...... 12/31/98 3245±0312 ...... SBA 1989 ...... Public Law 103±337 ...... 03/31/00 3245±0313 ...... SBA 1993 ...... Public Law 104±201 ...... 06/30/00 3245±0314 ...... Voluntary customer surveys in accordance with E.O ...... Public Law 102±564 ...... 09/30/00 3245±0315 ...... 8(a) electronic application follow-up survey ...... 13 CFR 124 ...... 10/31/00 3245±0316 ...... SBA 2031, SBA 2031A, SBA 2031B, SBA 2031C, SBA 2031D, SBA SBA SOP 9080 ...... 12/31/00 2031E, SBA 2031F, SBA 2031G, SBA 2031H. 3245±0317 ...... Application form for SDB program ...... 13 CFR 124 ...... 11/30/98 58444 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

[FR Doc. 98–29113 Filed 10–29–98; 8:45 am] the decisionmaker before an initial beyond this date, another notice will be BILLING CODE 8025±01±P determination is made; the elimination published in the Federal Register to of the reconsideration step in the inform the public regarding administrative review process; the use continuation of the test. SOCIAL SECURITY ADMINISTRATION of an adjudication officer who will Dated: October 6, 1998. conduct prehearing procedures and, if Susan M. Daniels, Ph.D., Testing Modifications to the Disability appropriate, will issue a decision Determination Procedures; Disability Deputy Commissioner for Disability and wholly favorable to the claimant; and Income Security Programs. Determination Services Full Process the elimination of the Appeals Council [FR Doc. 98–29261 Filed 10–29–98; 8:45 am] Model with Rationale Summary step in the administrative appeals BILLING CODE 4190±29±P AGENCY: Social Security Administration. process. ACTION: Notice of the additional test Selection of cases for these tests in eleven state sites began in April 1997 sites and the duration of testing SOCIAL SECURITY ADMINISTRATION involving modifications to the disability and ended in January 1998. determination procedures. Adjudication of cases following the modified process continues. Social Security Acquiescence Ruling SUMMARY: The Social Security We are now announcing the 98-5(8) Administration (SSA) is announcing the beginning of additional testing of a locations of additional tests that it will process that incorporates the above State of Minnesota v. Apfel; Coverage conduct under the current rules codified modifications, with the exception of the for Employees Under a Federal-State at 20 CFR 404.906, 404.943, 404.966, elimination of the Appeals Council step Section 218 Agreement or Modification 416.1406, 416.1443, and 416.1466. in the administrative appeals process. and Application of the Student Those rules provide the authority to test This testing will focus on certain Services Exclusion From Coverage to modifications, either individually or in requirements, as set out in SSA’s rules Services Performed by Medical any combination, to the disability and regulations, for preparing a ResidentsÐTitle II of the Social determination procedures that we rationale for the adjudicator’s disability Security Act normally follow in adjudicating claims determination to see if the integrated for disability insurance benefits under model procedures have any effect on AGENCY: Social Security Administration. title II of the Social Security Act (the how these requirements are met. Some ACTION: Notice of Social Security Act) and claims for supplemental sites will test all of the modifications as Acquiescence Ruling. security income (SSI) payments based described above, except the elimination on disability under title XVI of the Act. of the Appeals Council review step; in SUMMARY: In accordance with 20 CFR This notice announces the test sites and other sites, only certain of the 402.35(b)(2), the Commissioner of Social duration of tests involving a modifications will be tested. The test Security gives notice of Social Security combination of modifications to the will take place at the following Acquiescence Ruling 98-5(8). disability process. The additional locations: EFFECTIVE DATE: October 30, 1998. testing will focus on certain SSA • Disability Determination Service FOR FURTHER INFORMATION CONTACT: requirements for preparing a rationale Administration, Arizona Department of Gary Sargent, Litigation Staff, Social for the adjudicator’s disability Economic Security, Suite 105, 3655 East Security Administration, 6401 Security determination to see if the modifications Second Street, Tucson, AZ 85716; Boulevard, Baltimore, MD 21235, (410) • have any effect on how these Disability Adjudication Section, 965-1695. requirements are met. Division of Rehabilitation, Clark SUPPLEMENTARY INFORMATION: Although FOR FURTHER INFORMATION CONTACT: Harrison Building, 330 West Ponce de not required to do so pursuant to 5 Harry Pippin, Disability Models Team Leon Avenue, Decatur, GA 30030; U.S.C. 552(a)(1) and (a)(2), we are • Disability Determination Service, Leader, Office of Disability, Disability publishing this Social Security Department of Vocational Process Redesign Staff, Social Security Acquiescence Ruling in accordance Rehabilitation, Central Avenue, Administration, 6401 Security with 20 CFR 402.35(b)(2). Boulevard, Baltimore, Maryland 21235, Building 1313, Tiyan, Guam 96913 • Social Security Disability A Social Security Acquiescence 410–965–9203. Determinations Services, Minnesota Ruling explains how we will apply a SUPPLEMENTARY INFORMATION: In April, Department of Economic Security, Suite holding in a decision of a United States 1997, SSA began testing several 300 Metro Square Building, 121 East Court of Appeals that we determine modifications to its disability Seventh Place, St. Paul, MN 55101; conflicts with our interpretation of a determination procedures. These • Section of Disability provision of the Social Security Act (the modifications have been described in a Determinations, Missouri Department of Act) or regulations when the Federal Register notice published on Vocational Rehabilitation, 2530 I South Government has decided not to seek April 4, 1997 (62 FR 16210) and final Campbell Street, Springfield, MO 65807; further review of that decision or is rules published on September 23, 1997 • Office of Disability Determinations, unsuccessful on further review. (62 FR 49598). Those modifications New York State Department of Social We will apply the holding of the were: the use of a single decisionmaker Services, 99 Washington Avenue, Room Court of Appeals’ decision, as explained who may make the disability 1239, Albany, NY 12260; and in this Social Security Acquiescence determination without requiring the • Disability Determination Services, Ruling, at all levels of administrative signature of a medical consultant; the Vocational Rehabilitation Division, adjudication within the Eighth Circuit. conducting of a predecision interview in Ground Floor, 500 Summer Street, NE, This Social Security Acquiescence which a claimant, for whom SSA does Salem, OR 97310. Ruling will apply to all determinations not have sufficient information to make Selection of cases for testing will or decisions made on or after October a fully favorable determination or for begin on or about October 29, 1998, and 30, 1998. If we made a determination or whom the evidence would require an is expected not to continue beyond decision between July 6, 1998, the date initial determination denying the claim, December 31, 1999. If the Agency of the Court of Appeals’ decision, and can present additional information to decides to continue case selection October 30, 1998 the effective date of Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58445 this Social Security Acquiescence Circuit: Eighth (Arkansas, Iowa, summary judgment and overturned the Ruling, you may request application of Minnesota, Missouri, Nebraska, North assessment. The district court held that: the Social Security Acquiescence Ruling Dakota, South Dakota). (1) the medical residents were not if you first demonstrate, pursuant to 20 State of Minnesota v. Apfel, 151 F.3d ‘‘employees’’ of the University within CFR 404.985(b), that application of the 742 (8th Cir. 1998). the meaning of the 1958 modification; Ruling could change our prior Applicability of Ruling: This Ruling and determination or decision. applies to all determinations or (2) even if they were employees, they decisions at all administrative levels were excluded from coverage based If this Social Security Acquiescence (e.g., initial, reconsideration, upon the modification’s student Ruling is later rescinded as obsolete, we Administrative Law Judge hearing and exclusion. SSA appealed this decision will publish a notice in the Federal Appeals Council). to the United States Court of Appeals for Register to that effect as provided for in Description of Case: In 1950, Congress the Eighth Circuit. 20 CFR 404.985(e). If we decide to enacted section 218 of the Act which The United States Court of Appeals relitigate the issue covered by this allows States to enter into agreements for the Eighth Circuit affirmed the Social Security Acquiescence Ruling as with SSA (section 218 agreements) to district court’s alternative holdings and provided for by 20 CFR 404.985(c), we obtain Social Security coverage for State further stated that the regulatory will publish a notice in the Federal and local government employees. In approach set forth in 20 CFR Register stating that we will apply our accordance with the provisions of 404.1028(c) prevents SSA from interpretation of the Act or regulations section 218, a State designates coverage summarily concluding that medical involved and explaining why we have groups for Social Security coverage by residents never qualify for the student decided to relitigate the issue. choosing to cover nonretirement system services exclusion without a case by (Catalog of Federal Domestic Assistance groups of employees of the State or case examination of the nature of the Program Nos. 96.001 Social Security - political subdivision of the State or medical residents’ relationship with Disability Insurance; 96.002 Social Security - retirement system groups, or both. their employer. Retirement Insurance; 96.003 - Special Under section 218(c)(6), certain services Holding: After considering the Benefits for Persons Aged 72 and Over; are required to be mandatorily excluded Supreme Court’s decision in Bowen v. 96.004 Social Security -Survivors Insurance.) from coverage. In addition, there are Public Agencies Opposed to Social Dated: October 9, 1998. specific, limited optional exclusions Security Entrapment, 477 U.S. 41 Kenneth S. Apfel, under section 218(c) that the State may (1986), the Eighth Circuit found that the Federal-State section 218 agreement for Commissioner of Social Security. elect to take to exclude certain services from coverage. coverage and the 1958 modification Acquiescence Ruling 98-5(8) In 1955, the State of Minnesota and were ‘‘contractual arrangement[s].’’ SSA executed a section 218 agreement Accordingly, the court quoted from the State of Minnesota v. Apfel, 151 F.3d for Social Security coverage. The district court’s decision and held that 742 (8th Cir. 1998)—Coverage for agreement initially applied to a few ‘‘the meaning of section [2]18 Employees Under a Federal-State coverage groups but the State agreements cannot be altered ‘through Section 218 Agreement or Modification subsequently executed a modification in ruling by the the [sic] SSA or through and Application of the Student Services 1958 to extend coverage to services subsequent case law developments Exclusion From Coverage to Services performed by individuals as employees regarding the employment status of Performed by Medical Residents—Title of the University of Minnesota. The medical residents.’’’ The court also held II of the Social Security Act. modification excluded ‘‘any service that ‘‘[t]he power to alter the terms of performed by a student’’ pursuant to the section [2]18 agreements lies Issue: Whether, in determining optional exclusion provided by section exclusively with Congress’’ and that coverage of services performed by State 218(c)(5) of the Act. The University did because Congress did not change ‘‘the and local government employees under not withhold Social Security meaning of the State’s 1958 the provisions of a Federal-State contributions from the annual stipends modification, the parties’ [original] agreement or modification under section paid to medical residents at its teaching intent is controlling.’’ The court agreed 218 of the Social Security Act (the Act), hospital. It also did not pay the with the district court that medical the Social Security Administration employer’s share of the contributions. residents were not employees of the (SSA) must consider the original intent This practice continued for more than University under the terms of the 1958 and understanding of the parties to the 30 years. modification and therefore were not agreement as controlling unless the On September 13, 1990, SSA issued a covered for Social Security purposes by agreement and modification is altered or formal notice of assessment holding the that modification. amended by statutory law. Whether the State liable for unpaid contributions The Eighth Circuit also held that the student services exclusion from Social totaling nearly $8 million based on general student services exclusion in Security coverage under section stipends paid to medical residents section 210(a)(10) of the Act applied to 210(a)(10) of the Act can apply to during 1985 and 1986.1 The State medical residents participating in the services performed by medical students requested administrative review and on University’s medical residency program and whether, in applying the exclusion, January 11, 1994, SSA’s Deputy because ‘‘[t]he bright-line rule of SSR SSA must make a case by case Commissioner for Programs affirmed the 78-3 is inconsistent with the approach examination of the medical residents’ assessment. The State of Minnesota then set forth at 20 C.F.R. § 404.1028(c), relationship with the employer school, sought judicial review. The district which contemplates a case-by-case college or university. court granted the State’s motion for examination to determine if an Statute/Regulation/Ruling Citation: individual’s relationship with a school Sections 210(a)(10) and 218 of the 1 Under the Omnibus Budget Reconciliation Act is primarily for educational purposes or Social Security Act (42 U.S.C. 410 (a) of 1986, Pub. L. No. 99-509, the Internal Revenue primarily to earn a living.’’ Service determines liability for Social Security (10) and 418), 20 CFR 404.1028(c), taxes pursuant to a section 218 Federal-State The circuit court focused on the 404.1209, 404.1210, 404.1214, 404.1215. agreement for coverage and its modifications for nature of the medical residents’ 404.1216, Social Security Ruling 78-3. wages paid after December 31, 1986. relationship with the University, and 58446 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices observed the undisputed facts that the Section 210(a)(10) of the Act provides consider whether medical residents who medical residents were enrolled in the for a general exclusion from Social are paid stipends qualify for the University, paid tuition and were Security coverage for services performed exclusion. When applying the student registered for approximately 15 credit for a school, college or university by a services exclusion to medical residents, hours per semester. The court student who is enrolled and regularly SSA must make a case by case concluded that the primary purpose for attending classes there. Section examination of the relationship of the the residents’ participation in the 218(c)(5) provides States with the residents with the employer school, program was to pursue a course of study option of excluding such services by college or university to determine rather than to earn a living. students. If the exclusion is not taken, whether the residents meet the statutory services performed by students are criteria of being enrolled and regularly Statement as to How State of Minnesota covered even though they would be attending classes and whether they meet Differs From SSA Rules excluded pursuant to section 210(a)(10) the regulatory criteria. In evaluating the A section 218 agreement establishes if performed for a private school, college relationship, SSA will consider all Social Security coverage for State and or university. Under SSA’s regulations relevant facts and circumstances. local government employees, and the implementing section 210 (20 CFR [FR Doc. 98-29177 Filed 10-29-98; 8:45 am] terms of the section 218 agreement 404.1028(c)), the determination of BILLING CODE 4190-29-F between SSA and the State are governed whether an individual is a student by the provisions of section 218 of the depends on the relationship with his or Act. Under SSA’s regulations her employer and whether the focus of SOCIAL SECURITY ADMINISTRATION implementing section 218 (20 CFR that relationship is pursuing a Office of the Commissioner; 1999 404.1214 and 404.1215), the written livelihood or pursuing a course of study. Cost-of-Living Increase and Other agreement and subsequent SSR 78-3 provides that resident Determinations modifications to that agreement physicians are not ‘‘students’’ for purposes of the student services establish the continuing relationship AGENCY: Social Security Administration. between SSA and the State. SSA’s exclusion under section 210(a)(10) of the Act. Under SSA rules, the services ACTION: Notice. regulations (20 CFR 404.1215) provide performed by medical residents do not that a State may modify in writing its SUMMARY: The Commissioner has qualify for the student exclusion. section 218 agreement to include determined— The Eighth Circuit concluded that (1) A 1.3 percent cost-of-living additional coverage groups consistent SSR 78-3 is inconsistent with SSA’s with the provisions of section 218. increase in Social Security benefits student services exclusion regulation under title II of the Social Security Act Generally, SSA does not consider the (20 CFR 404.1028) which requires a case original intent of the parties to the (the Act), effective for December 1998; by case examination to determine if an (2) An increase in the Federal section 218 agreement and its individual’s relationship with the modifications, by itself, to be Supplemental Security Income (SSI) employer meets the requirements for monthly benefit amounts under title controlling. The error modification that exclusion to apply. procedure at 20 CFR 404.1216, however, XVI of the Act for 1999 to $500 for an provides that a section 218 agreement or Explanation of How SSA Will Apply eligible individual, $751 for an eligible modification may be modified to correct The State of Minnesota Decision Within individual with an eligible spouse, and an error upon submittal of evidence The Circuit $250 for an essential person; (3) The national average wage index establishing that an error actually This Ruling applies to Federal-State occurred. Under this procedure, SSA for 1997 to be $27,426.00; agreements for coverage and subsequent (4) The Old-Age, Survivors, and may consider evidence such as minutes modifications under section 218 of the Disability Insurance (OASDI) of meetings or statements by appropriate Act involving Arkansas, Iowa, contribution and benefit base to be officials to establish the intent of the Minnesota, Missouri, Nebraska, North $72,600 for remuneration paid in 1999 parties at the time Social Security Dakota or South Dakota. It also applies and self-employment income earned in coverage was requested, and SSA also to services performed by medical taxable years beginning in 1999; considers whether the State’s wage residents for a school, college or (5) For beneficiaries under age 65, the reporting practices were consistent with university located in Arkansas, Iowa, 2 monthly exempt amount under the its intent. Minnesota, Missouri, Nebraska, North Social Security retirement earnings test In construing a modification which Dakota or South Dakota. for taxable years ending in calendar year was ambiguous as to whether medical In establishing coverage for State and 1999 to be $800; residents were considered to be local employees under an ambiguous (6) The dollar amounts (‘‘bend employees for purposes of that provision of a section 218 agreement or points’’) used in the benefit formula for modification, the Eighth Circuit a modification to that agreement, unless workers who become eligible for concluded that the original intent and the original intent or understanding of benefits in 1999 to be $505 and $3,043; understanding of the parties executing the parties was contrary to the (7) The dollar amounts (‘‘bend the section 218 agreement for coverage provisions of section 218, SSA must points’’) used in the formula for and its subsequent modifications is consider that intent and understanding computing maximum family benefits for controlling for establishing coverage for controlling unless the agreement and workers who become eligible for State and local employees unless the modification is altered or amended by benefits in 1999 to be $645, $931, and original intent or understanding was law. SSA may consider the terms of the $1,214; contrary to the provisions of section agreement or modification in (8) The amount of earnings a person 218, or unless the agreement is altered determining the intent and must have to be credited with a quarter or amended by statutory law. understanding of the parties. of coverage in 1999 to be $740; In applying the student services (9) The ‘‘old-law’’ contribution and 2 State and Local Coverage Handbook for the exclusion from Social Security coverage benefit base to be $53,700 for 1999; Social Security Administration and State Social under section 210(a)(10) of the Act and (10) The monthly amount of Security Administrators, section 530. under 20 CFR 404.1028(c), SSA must substantial gainful activity applicable to Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58447 statutorily blind individuals in 1999 to on the third of the following month will Title II Benefit Amounts. In be $1,110; be paid on December 31, 1998, because accordance with section 215(i) of the (11) The domestic worker coverage January 3, 1999, is a Sunday.) This Act, in the case of insured workers and threshold to be $1,100 for 1999; and increase is based on the authority family members for whom eligibility for (12) The OASDI fund ratio to be 171.2 contained in section 215(i) of the Act benefits (i.e., the worker’s attainment of percent for 1998. (42 U.S.C. 415(i)). age 62, or disability or death before age FOR FURTHER INFORMATION CONTACT: Under title XVI, Federal SSI payment 62) occurred before 1999, benefits will Jeffrey L. Kunkel, Office of the Chief levels will also increase by 1.3 percent increase by 1.3 percent beginning with Actuary, Social Security effective for payments made for the benefits for December 1998 which are Administration, 6401 Security month of January 1999 but paid on payable in January 1999. In the case of Boulevard, Baltimore, MD 21235, (410) December 31, 1998. This is based on the first eligibility after 1998, the 1.3 965–3013. For information on eligibility authority contained in section 1617 of percent increase will not apply. the Act (42 U.S.C. 1382f). or claiming benefits, call 1–800–772– For eligibility after 1978, benefits are 1213. A summary of the information in Automatic Benefit Increase Computation. Under section 215(i) of generally determined by a benefit this announcement is available in a the Act, the third calendar quarter of formula provided by the Social Security recorded message by telephoning (410) 1998 is a cost-of-living computation Amendments of 1977 (Pub. L. 95–216), 965–3053. Information relating to this quarter for all the purposes of the Act. as described later in this notice. announcement is also available on the The Commissioner is, therefore, Internet. The address is http:// For eligibility before 1979, benefits required to increase benefits, effective www.ssa.gov/OACT/COLA/Intro.html. are determined by means of a benefit with December 1998, for individuals table. A copy of this table may be SUPPLEMENTARY INFORMATION: The entitled under section 227 or 228 of the Commissioner is required by the Act to obtained by writing to: Social Security Act, to increase primary insurance Administration, Office of Public publish within 45 days after the close of amounts of all other individuals entitled the third calendar quarter of 1998 the Inquiries, 4100 Annex, Baltimore, MD under title II of the Act, and to increase 21235. The table is also available on the benefit increase percentage and the maximum benefits payable to a family. revised table of ‘‘special minimum’’ Internet at address http://www.ssa.gov/ For December 1998, the benefit increase OACT/ProgData/tableForm.html. benefits (section 215(i)(2)(D)). Also, the is the percentage increase in the Commissioner is required to publish on Consumer Price Index for Urban Wage Section 215(i)(2)(D) of the Act or before November 1 the national Earners and Clerical Workers from the requires that, when the Commissioner average wage index for 1997 (section third quarter of 1997 through the third determines an automatic increase in 215(a)(1)(D)), the OASDI fund ratio for quarter of 1998. Social Security benefits, the 1998 (section 215(i)(2)(C)(ii)), the Section 215(i)(1) of the Act provides Commissioner shall publish in the OASDI contribution and benefit base for that the Consumer Price Index for a Federal Register a revision of the range 1999 (section 230(a)), the amount of cost-of-living computation quarter shall of the primary insurance amounts and earnings required to be credited with a be the arithmetic mean of this index for corresponding maximum family benefits quarter of coverage in 1999 (section the 3 months in that quarter. The based on the dollar amount and other 213(d)(2)), the monthly exempt amounts arithmetic mean is rounded, if provisions described in section under the Social Security retirement necessary, to the nearest 0.1. The 215(a)(1)(C)(i). These benefits are earnings test for 1999 (section Department of Labor’s Consumer Price referred to as ‘‘special minimum’’ 203(f)(8)(A)), the formula for computing Index for Urban Wage Earners and benefits and are payable to certain a primary insurance amount for workers Clerical Workers for each month in the individuals with long periods of who first become eligible for benefits or quarter ending September 30, 1997, is: relatively low earnings. To qualify for die in 1999 (section 215(a)(1)(D)), and for July 1997, 157.5; for August 1997, such benefits, an individual must have the formula for computing the 157.8; and for September 1997, 158.3. at least 11 ‘‘years of coverage.’’ To earn maximum amount of benefits payable to The arithmetic mean for this calendar a year of coverage for purposes of the the family of a worker who first quarter is 157.9. The corresponding special minimum, a person must earn at becomes eligible for old-age benefits or Consumer Price Index for each month in least a certain proportion (25 percent for dies in 1999 (section 203(a)(2)(C)). the quarter ending September 30, 1998, years before 1991, and 15 percent for is: for July 1998, 159.8; for August 1998, Cost-of-Living Increases years after 1990) of the ‘‘old-law’’ 160.0; and for September 1998, 160.2. contribution and benefit base. In General. The cost-of-living increase is The arithmetic mean for this calendar accordance with section 215(a)(1)(C)(i), 1.3 percent for benefits under titles II quarter is 160.0. Thus, because the the table below shows the revised range and XVI of the Act. Consumer Price Index for the calendar of primary insurance amounts and Under title II, OASDI benefits will quarter ending September 30, 1998, corresponding maximum family benefit increase by 1.3 percent beginning with exceeds that for the calendar quarter amounts after the 1.3 percent benefit December 1998 benefits. ending September 30, 1997 by 1.3 increase. (All benefits for a given month are percent, a cost-of-living benefit increase normally payable in the following of 1.3 percent is effective for benefits Special Minimum Primary Insurance month. However, those benefits for under title II of the Act beginning Amounts and Maximum Family December 1998 that are normally paid December 1998. Benefits Payable for Dec. 1998

Primary insur- Maximum fam- Number of years of coverage ance amount ily benefit

11 ...... $27.90 $42.20 12 ...... 56.10 84.80 13 ...... 84.70 127.40 14 ...... 112.80 169.80 15 ...... 141.20 212.00 58448 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Primary insur- Maximum fam- Number of years of coverage ance amount ily benefit

16 ...... 169.60 255.00 17 ...... 198.00 297.70 18 ...... 226.40 340.10 19 ...... 254.70 382.70 20 ...... 283.00 425.10 21 ...... 311.70 468.00 22 ...... 339.80 510.40 23 ...... 368.40 553.60 24 ...... 396.80 595.90 25 ...... 425.10 638.00 26 ...... 453.80 681.40 27 ...... 482.00 723.70 28 ...... 510.30 766.10 29 ...... 538.60 808.80 30 ...... 567.00 851.10

Section 227 of the Act provides flat- 205(j)(4)(A)(i) and 1631(a)(2)(D)(i) of the employee coverage threshold be based rate benefits to a worker who became Act permit a qualified organization to on changes in the national average wage age 72 before 1969 and was not insured collect from an individual a monthly fee index. under the usual requirements, and to his for expenses incurred in providing Computation. The determination of or her spouse or surviving spouse. services performed as such individual’s the national average wage index for Section 228 of the Act provides similar representative payee. Currently the fee calendar year 1997 is based on the 1996 benefits at age 72 for certain uninsured is limited to the lesser of (1) 10 percent national average wage index of persons. The current monthly benefit of the monthly benefit involved, or (2) $25,913.90 announced in the Federal amount of $203.10 for an individual $27 per month ($52 per month in any Register on October 30, 1997 (62 FR under sections 227 and 228 of the Act case in which the individual is entitled 58762), along with the percentage is increased by 1.3 percent to obtain the to disability benefits and the increase in average wages from 1996 to new amount of $205.70. The current Commissioner has determined that 1997 measured by annual wage data monthly benefit amount of $101.50 for payment to the representative payee tabulated by the Social Security a spouse under section 227 is increased would serve the interest of the Administration (SSA). The wage data by 1.3 percent to $102.80. individual because the individual has tabulated by SSA include contributions Title XVI Benefit Amounts. In an alcoholism or drug addiction to deferred compensation plans, as accordance with section 1617 of the Act, condition and is incapable of managing required by section 209(k) of the Act. Federal SSI benefit amounts for the such benefits). The dollar fee limits are The average amounts of wages aged, blind, and disabled are increased subject to increase by the automatic calculated directly from these data were by 1.3 percent effective January 1999. cost-of-living increase, with the $24,859.17 and $26,309.73 for 1996 and For 1998, the monthly benefit amounts resulting amounts rounded to the 1997, respectively. To determine the for an eligible individual, an eligible nearest whole dollar amount. Due to the national average wage index for 1997 at individual with an eligible spouse, and rounding provision, the current $27 a level that is consistent with the for an essential person—$494, $741, and amount remains the same for 1999, national average wage indexing series $247, respectively—were derived from while the current $52 amount is for 1951 through 1977 (published corresponding yearly unrounded increased by 1.3 percent to $53 for 1999. December 29, 1978, at 43 FR 61016), the Federal SSI benefit amounts of National Average Wage Index for 1997 1996 national average wage index of $5,932.89, $8,898.33, and $2,973.24. For $25,913.90 is multiplied by the 1999, these yearly unrounded amounts General. Under various provisions of percentage increase in average wages are increased by 1.3 percent to the Act, several amounts are scheduled from 1996 to 1997 (based on SSA- $6,010.02, $9,014.01, and $3,011.89, to increase automatically for 1999 based tabulated wage data) as follows (with respectively. Each of these resulting on the annual increase in the national the result rounded to the nearest cent): amounts must be rounded, when not a average wage index. The amounts are (1) Amount. The national average wage multiple of $12, to the next lower the OASDI contribution and benefit index for 1997 is $25,913.90 times multiple of $12. Accordingly, the base, (2) the retirement test exempt $26,309.73 divided by $24,859.17, corresponding annual amounts, amount for beneficiaries under age 65, which equals $27,426.00. Therefore, the effective for 1999, are $6,000, $9,012, (3) the dollar amounts, or ‘‘bend national average wage index for and $3,000. The corresponding monthly points,’’ in the primary insurance calendar year 1997 is determined to be amounts for 1999 are determined by amount and maximum family benefit $27,426.00. dividing the yearly amounts by 12, formulas, (4) the amount of earnings giving $500, $751, and $250, required for a worker to be credited with OASDI Contribution and Benefit Base respectively. The monthly amount is a quarter of coverage, (5) the ‘‘old-law’’ General. The OASDI contribution and reduced by subtracting monthly contribution and benefit base (as benefit base is $72,600 for remuneration countable income. In the case of an determined under section 230 of the Act paid in 1999 and self-employment eligible individual with an eligible as in effect before the 1977 income earned in taxable years spouse, the amount payable is further amendments), and (6) the substantial beginning in 1999. divided equally between the two gainful activity amount applicable to The OASDI contribution and benefit spouses. statutorily blind individuals. Also, base serves two purposes: Fee for Services Performed as a section 3121(x) of the Internal Revenue (a) It is the maximum annual amount Representative Payee. Sections Code requires that the domestic of earnings on which OASDI taxes are Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58449 paid. The OASDI tax rate for beneficiaries will increase under the resulting average amount is then remuneration paid in 1999 is set by applicable formula. rounded down to the next lower dollar statute at 6.2 percent for employees and For beneficiaries aged 65 through 69, amount. The result is the average employers, each. The OASDI tax rate for $1 in benefits is withheld for every $3 indexed monthly earnings. self-employment income earned in of earnings in excess of the annual For example, to compute the average taxable years beginning in 1999 is 12.4 exempt amount. For beneficiaries under indexed monthly earnings for a worker percent. (The Hospital Insurance tax is age 65, $1 in benefits is withheld for attaining age 62, becoming disabled due on remuneration, without every $2 of earnings in excess of the before age 62, or dying before attaining limitation, paid in 1999, at the rate of annual exempt amount. age 62, in 1999, the national average 1.45 percent for employees and Computation. Under the formula wage index for 1997, $27,426.00, is employers, each, and on self- applicable to beneficiaries under age 65, divided by the national average wage employment income earned in taxable the monthly exempt amount for 1999 index for each year prior to 1997 in years beginning in 1999, at the rate of shall be the larger of (1) the 1994 which the worker had earnings. The 2.9 percent.) monthly exempt amount multiplied by actual wages and self-employment (b) It is the maximum annual amount the ratio of the national average wage income, as defined in section 211(b) of used in determining a person’s OASDI index for 1997 to that for 1992, or (2) the the Act and credited for each year, is benefits. 1998 monthly exempt amount ($760). If multiplied by the corresponding ratio to the amount so determined is not a Computation. Section 230(b) of the obtain the worker’s indexed earnings for multiple of $10, it shall be rounded to Act provides the formula used to each year before 1997. Any earnings in the nearest multiple of $10. determine the OASDI contribution and 1997 or later are considered at face Exempt Amount for Beneficiaries value, without indexing. The average benefit base. Under the formula, the Under Age 65. The ratio of the national base for 1999 shall be equal to the larger indexed monthly earnings is then average wage index for 1997, computed and used to determine the of (1) the 1994 base of $60,600 $27,426.00, compared to that for 1992, worker’s primary insurance amount for multiplied by the ratio of the national $22,935.42, is 1.1957924. Multiplying 1999. average wage index for 1997 to that for the 1994 retirement earnings test Computing the Primary Insurance 1992, or (2) the current base ($68,400). monthly exempt amount of $670 by the Amount. The primary insurance amount If the amount so determined is not a ratio 1.1957924 produces the amount of is the sum of three separate percentages multiple of $300, it shall be rounded to $801.18. This must then be rounded to of portions of the average indexed the nearest multiple of $300. $800. Because $800 is larger than the monthly earnings. In 1979 (the first year Amount. The ratio of the national corresponding current exempt amount the formula was in effect), these average wage index for 1997, $27,426.00 of $760, the retirement earnings test portions were the first $180, the amount as determined above, compared to that monthly exempt amount for between $180 and $1,085, and the for 1992, $22,935.42, is 1.1957924. beneficiaries under age 65 is thus amount over $1,085. The dollar amounts Multiplying the 1994 OASDI determined to be $800 for 1999. The in the formula which govern the contribution and benefit base amount of corresponding retirement earnings test portions of the average indexed monthly $60,600 by the ratio of 1.1957924 annual exempt amount for these earnings are frequently referred to as the produces the amount of $72,465.02 beneficiaries is $9,600. ‘‘bend points’’ of the formula. Thus, the which must then be rounded to $72,600. Computing Benefits After 1978 bend points for 1979 were $180 and Because $72,600 exceeds the current $1,085. base amount of $68,400, the OASDI General. The Social Security The bend points for 1999 are obtained contribution and benefit base is Amendments of 1977 provided a by multiplying the corresponding 1979 determined to be $72,600 for 1999. method for computing benefits which bend-point amounts by the ratio generally applies when a worker first Retirement Earnings Test Exempt between the national average wage becomes eligible for benefits after 1978. Amounts index for 1997, $27,426.00, and for This method uses the worker’s ‘‘average 1977, $9,779.44. These results are then General. Social Security benefits are indexed monthly earnings’’ to compute rounded to the nearest dollar. For 1999, withheld when a beneficiary under age the primary insurance amount. The the ratio is 2.8044551. Multiplying the 70 has earnings in excess of the computation formula is adjusted 1979 amounts of $180 and $1,085 by retirement earnings test exempt amount. automatically each year to reflect 2.8044551 produces the amounts of Since 1978, higher exempt amounts changes in general wage levels, as $504.80 and $3,042.83. These must then have applied to beneficiaries aged 65 measured by the national average wage be rounded to $505 and $3,043. through 69 compared to those under age index. Accordingly, the portions of the average 65. Formulas for determining the A worker’s earnings are adjusted, or indexed monthly earnings to be used in monthly exempt amounts are provided ‘‘indexed,’’ to reflect the change in 1999 are determined to be the first $505, in section 203(f)(8)(B) of the Act, as general wage levels that occurred during the amount between $505 and $3,043, amended by section 102 of the ‘‘Senior the worker’s years of employment. Such and the amount over $3,043. Citizens’ Right to Work Act of 1996,’’ indexation ensures that a worker’s Consequently, for individuals who title I of Pub. L. 104–121. This future benefits reflect the general rise in first become eligible for old-age amendment set the annual exempt the standard of living that occurs during insurance benefits or disability amount for beneficiaries aged 65 his or her working lifetime. A certain insurance benefits in 1999, or who die through 69 to $12,500 for 1996, $13,500 number of years of earnings are needed in 1999 before becoming eligible for for 1997, $14,500 for 1998, $15,500 for to compute the average indexed benefits, their primary insurance 1999, $17,000 for 2000, $25,000 for monthly earnings. After the number of amount will be the sum of: 2001, and $30,000 for 2002. The years is determined, those years with (a) 90 percent of the first $505 of their corresponding monthly exempt amounts the highest indexed earnings are chosen, average indexed monthly earnings, plus are exactly one-twelfth of the annual the indexed earnings are summed, and (b) 32 percent of their average indexed amounts. After 2002, the monthly the total amount is divided by the total monthly earnings over $505 and exempt amount for this group of number of months in those years. The through $3,043, plus 58450 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

(c) 15 percent of their average indexed insurance amounts to be used in 1999 Multiplying the 1978 quarter of monthly earnings over $3,043. are determined to be the first $645, the coverage amount of $250 by the ratio of This amount is then rounded to the amount between $645 and $931, the 2.9725312 produces the amount of next lower multiple of $.10 if it is not amount between $931 and $1,214, and $743.13, which must then be rounded to already a multiple of $.10. This formula the amount over $1,214. $740. Because $740 exceeds the current and the rounding adjustment described Consequently, for the family of a amount of $700, the quarter of coverage above are contained in section 215(a) of worker who becomes age 62 or dies in amount is determined to be $740 for the Act (42 U.S.C. 415(a)). 1999 before age 62, the total amount of 1999. benefits payable to them will be Maximum Benefits Payable to a Family ‘‘Old-Law’’ Contribution and Benefit computed so that it does not exceed: General. The 1977 amendments (a) 150 percent of the first $645 of the Base continued the long established policy of worker’s primary insurance amount, General. The 1999 ‘‘old-law’’ limiting the total monthly benefits that plus contribution and benefit base is $53,700. a worker’s family may receive based on (b) 272 percent of the worker’s This is the base that would have been his or her primary insurance amount. primary insurance amount over $645 effective under the Act without the Those amendments also continued the through $931, plus enactment of the 1977 amendments. The then existing relationship between (c) 134 percent of the worker’s base is computed under section 230(b) maximum family benefits and primary primary insurance amount over $931 of the Act as it read prior to the 1977 insurance amounts but did change the through $1,214, plus amendments. method of computing the maximum (d) 175 percent of the worker’s The ‘‘old-law’’ contribution and amount of benefits that may be paid to primary insurance amount over $1,214. benefit base is used by: a worker’s family. The Social Security This amount is then rounded to the (a) the Railroad Retirement program to Disability Amendments of 1980 (Pub. L. next lower multiple of $.10 if it is not determine certain tax liabilities and tier 96–265) established a formula for already a multiple of $.10. This formula II benefits payable under that program computing the maximum benefits and the rounding adjustment described to supplement the tier I payments which payable to the family of a disabled above are contained in section 203(a) of correspond to basic Social Security worker. This formula is applied to the the Act (42 U.S.C. 403(a)). benefits, family benefits of workers who first (b) the Pension Benefit Guaranty Quarter of Coverage Amount become entitled to disability insurance Corporation to determine the maximum benefits after June 30, 1980, and who General. The 1999 amount of earnings amount of pension guaranteed under the first become eligible for these benefits required for a quarter of coverage is Employee Retirement Income Security after 1978. For disabled workers $740. A quarter of coverage is the basic Act (as stated in section 230(d) of the initially entitled to disability benefits unit for determining whether a worker Social Security Act), before July 1980, or whose disability is insured under the Social Security (c) Social Security to determine a year began before 1979, the family maximum program. For years before 1978, an of coverage in computing the special payable is computed the same as the individual generally was credited with minimum benefit, as described earlier, old-age and survivor family maximum. a quarter of coverage for each quarter in and Computing the Old-Age and Survivor which wages of $50 or more were paid, (d) Social Security to determine a year Family Maximum. The formula used to or an individual was credited with 4 of coverage (acquired whenever compute the family maximum is similar quarters of coverage for every taxable earnings equal or exceed 25 percent of to that used to compute the primary year in which $400 or more of self- the ‘‘old-law’’ base for this purpose insurance amount. It involves employment income was earned. only) in computing benefits for persons computing the sum of four separate Beginning in 1978, wages generally are who are also eligible to receive pensions percentages of portions of the worker’s no longer reported on a quarterly basis; based on employment not covered primary insurance amount. In 1979, instead, annual reports are made. With under section 210 of the Act. these portions were the first $230, the the change to annual reporting, section Computation. The base is computed amount between $230 and $332, the 352(b) of the Social Security using the automatic adjustment formula amount between $332 and $433, and the Amendments of 1977 amended section in section 230(b) of the Act as it read amount over $433. The dollar amounts 213(d) of the Act to provide that a prior to the enactment of the 1977 in the formula which govern the quarter of coverage would be credited amendments, but with the revised portions of the primary insurance for each $250 of an individual’s total indexing formula introduced by section amount are frequently referred to as the wages and self-employment income for 321(g) of the ‘‘Social Security ‘‘bend points’’ of the family-maximum calendar year 1978 (up to a maximum Independence and Program formula. Thus, the bend points for 1979 of 4 quarters of coverage for the year). Improvements Act of 1994.’’ Under the were $230, $332, and $433. Computation. Under the prescribed formula, the ‘‘old-law’’ contribution and The bend points for 1999 are obtained formula, the quarter of coverage amount benefit base shall be the larger of (1) the by multiplying the corresponding 1979 for 1999 shall be equal to the larger of 1994 ‘‘old-law’’ base ($45,000) bend-point amounts by the ratio (1) the 1978 amount of $250 multiplied multiplied by the ratio of the national between the national average wage by the ratio of the national average wage average wage index for 1997 to that for index for 1997, $27,426.00, and the index for 1997 to that for 1976, or (2) the 1992, or (2) the current ‘‘old-law’’ base average for 1977, $9,779.44. This current amount of $700. Section 213(d) ($50,700). If the amount so determined amount is then rounded to the nearest further provides that if the amount so is not a multiple of $300, it shall be dollar. For 1999, the ratio is 2.8044551. determined is not a multiple of $10, it rounded to the nearest multiple of $300. Multiplying the amounts of $230, $332, shall be rounded to the nearest multiple Amount. The ratio of the national and $433 by 2.8044551 produces the of $10. average wage index for 1997, amounts of $645.02, $931.08, and Quarter of Coverage Amount. The $27,426.00, compared to that for 1992, $1,214.33. These amounts are then ratio of the national average wage index $22,935.42, is 1.1957924. Multiplying rounded to $645, $931, and $1,214. for 1997, $27,426.00, compared to that the 1994 ‘‘old-law’’ contribution and Accordingly, the portions of the primary for 1976, $9,226.48, is 2.9725312. benefit base amount of $45,000 by the Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58451 ratio of 1.1957924 produces the amount 1995 amount of $1,000 multiplied by benefit increase has been reduced under of $53,810.66 which must then be the ratio of the national average wage the stabilizer provision. Thus, no rounded to $53,700. Because $53,700 index for 1997 to that for 1993. If the ‘‘catch-up’’ benefit increase is required. exceeds the current amount of $50,700, amount so determined is not a multiple (Catalog of Federal Domestic Assistance: the ‘‘old-law’’ contribution and benefit of $100, it shall be rounded to the next Program Nos. 96.001 Social Security- base is determined to be $53,700 for lower multiple of $100. Disability Insurance; 96.002 Social Security- 1999. Domestic Employee Coverage Retirement Insurance; 96.003 Social Security- Threshold Amount. The ratio of the Special Benefits for Persons Aged 72 and Substantial Gainful Activity Amount national average wage index for 1997, Over; 96.004 Social Security-Survivors for Blind Individuals $27,426.00, compared to that for 1993, Insurance; 96.006 Supplemental Security General. A finding of disability under $23,132.67, is 1.1855960. Multiplying Income.) titles II and XVI of the Act requires that the 1995 domestic employee coverage Dated: October 21, 1998. a person be unable to engage in threshold amount of $1,000 by the ratio Kenneth S. Apfel, substantial gainful activity (SGA). of 1.1855960 produces the amount of Commissioner, Social Security Under current regulations, a person who $1,185.60, which must then be rounded Administration. is not statutorily blind and who is to $1,100. Accordingly, the domestic [FR Doc. 98–28988 Filed 10–29–98; 8:45 am] earning more than $500 a month (net of employee coverage threshold amount is BILLING CODE 4190±29±P impairment-related work expenses) is determined to be $1,100 for 1999. ordinarily considered to be engaging in OASDI Fund Ratio SGA. Section 223(d)(4)(A) of the Act DEPARTMENT OF TRANSPORTATION specifies a higher SGA amount for General. In addition to providing an statutorily blind individuals. This annual automatic cost-of-living increase Office of the Secretary higher SGA amount increases in in OASDI benefits, section 215(i) of the accordance with increases in the Act also includes a ‘‘stabilizer’’ Reports, Forms and Recordkeeping national average wage index. provision that can limit such benefit Requirements; Agency Information Computation. The monthly SGA increase under certain circumstances. If Collection Activity Under OMB Review amount for statutorily blind individuals the combined assets of the OASI and DI AGENCY: Office of the Secretary, DOT. for 1999 shall be the larger of (1) such Trust Funds, as a percentage of annual amount for 1994 multiplied by the ratio expenditures, are below a specified ACTION: Notice. threshold, the automatic benefit of the national average wage index for SUMMARY: In compliance with the increase is equal to the lesser of (1) the 1997 to that for 1992, or (2) such Paperwork Reduction Act of 1995 (44 increase in the national average wage amount for 1998. If the amount so U.S.C. 3501 et seq.), this notice index or (2) the increase in prices. The determined is not a multiple of $10, it announces that the Information threshold specified for the OASDI fund shall be rounded to the nearest multiple Collection Request (ICR) abstracted ratio is 20.0 percent for benefit increases of $10. below has been forwarded to the Office SGA Amount for Statutorily Blind for December of 1989 and later. The law of Management and Budget (OMB) for Individuals. The ratio of the national also provides for subsequent ‘‘catch-up’’ review and comment. The ICRs describe average wage index for 1997, benefit increases for beneficiaries whose the nature of the information collections $27,426.00, compared to that for 1992, previous benefit increases were affected and their expected burden. The Federal $22,935.42, is 1.1957924. Multiplying by this provision. ‘‘Catch-up’’ benefit Register Notice with a 60-day comment the 1994 monthly SGA amount for increases can occur only when trust period soliciting comments on the statutorily blind individuals of $930 by fund assets exceed 32.0 percent of following information collection was the ratio of 1.1957924 produces the annual expenditures. published on May 26, 1998 (63 FR amount of $1,112.09. This must then be Computation. Section 215(i) specifies 28548–28549). rounded to $1,110. Because $1,110 is the computation and application of the larger than the current amount of OASDI fund ratio. The OASDI fund DATES: Comments must be submitted on $1,050, the monthly SGA amount for ratio for 1998 is the ratio of (1) the or before November 30, 1998. statutorily blind individuals is combined assets of the OASI and DI FOR FURTHER INFORMATION CONTACT: Ms. determined to be $1,110 for 1999. Trust Funds at the beginning of 1998 to Marian Lee, Office of Motor Carrier (2) the estimated expenditures of the Information Analysis, (202) 358–7051, Domestic Employee Coverage OASI and DI Trust Funds during 1998, Federal Highway Administration, Threshold excluding transfer payments between Department of Transportation, 400 General. Section 2 of the ‘‘Social the OASI and DI Trust Funds, and Seventh Street, SW., Washington, DC Security Domestic Employment Reform reducing any transfers to the Railroad 20590. Office hours are from 7:45 a.m. Act of 1994’’ (Pub. L. 103–387) Retirement Account by any transfers to 4:15 p.m., e.t., Monday through increased the threshold for coverage of from that account into either trust fund. Friday, except Federal holidays. a domestic employee’s wages paid per Ratio. The combined assets of the SUPPLEMENTARY INFORMATION: employer from $50 per calendar quarter OASI and DI Trust Funds at the to $1,000 in calendar year 1994. The beginning of 1998 equaled $655,510 Federal Highway Administration statute holds the coverage threshold at million, and the expenditures are Title: Financial Responsibility, the $1,000 level for 1995 and then estimated to be $382,871 million. Thus, Trucking and Freight Forwarding. increases the threshold in $100 the OASDI fund ratio for 1998 is 171.2 OMB Number: 2125–0570. increments for years after 1995. The percent, which exceeds the applicable Type of Request: Extension of a formula for increasing the threshold is threshold of 20.0 percent. Therefore, the currently approved collection. provided in section 3121(x) of the stabilizer provision does not affect the Affected Public: Motor carriers, freight Internal Revenue Code. benefit increase for December 1998. forwarders, and brokers. Computation. Under the formula, the Although the OASDI fund ratio exceeds Abstract: The Secretary of domestic employee coverage threshold the 32.0-percent threshold for potential Transportation is authorized to register amount for 1999 shall be equal to the ‘‘catch-up’’ benefit increases, no past for-hire motor carriers of regulated 58452 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices commodities under the provisions of 49 A comment to OMB is best assured of Costs Under The Oil Pollution Act of U.S.C. 13902, surface freight forwarders having its full effect if OMB receives it 1990. under the provisions of 49 U.S.C. 13903, within 30 days of publication. DATES: Comments on this notice must be and property brokers under the Issued in Washington, DC, on October 26, received on or before November 30, provisions of 49 U.S.C. 13904. These 1998. 1998. persons may conduct transportation Vanester M. Williams, FOR FURTHER INFORMATION CONTACT: For services only if they are registered Clearance Officer, United States Department copies of these documents, contact pursuant to 49 U.S.C. 13901. The of Transportation. Barbara Davis, Office of Information Secretary has delegated authority [FR Doc. 98–29122 Filed 10–29–98; 8:45 am] Management, 202–267–2326. pertaining to these registrations to the BILLING CODE 4910±62±P SUPPLEMENTARY INFORMATION: FHWA. Registration remains valid only as long as the transportation entities U. S. Coast Guard maintain, on file with the FHWA, DEPARTMENT OF TRANSPORTATION 1. Title: Claims Under the Oil evidence of the required levels of Pollution Act of 1990. insurance coverage pursuant to 49 Office of the Secretary OMB Control Number: 2115–0596. U.S.C. 13906. Regulations governing Reports, Forms and Recordkeeping Type of Request: Extension of a financial responsibility requirements are Requirements currently approved collection. found at 49 CFR part 387. Forms BMC– Forms: N/A. 91, 91x and 82 provide evidence of the AGENCY: Office of the Secretary, DOT. Affected Public: Claimants and required coverage for bodily injury and responsible parties of oil spills. property damage (BI&PD) liability. ACTION: Notice. Abstract: The information collected Forms BMC–34 and 83 establish will be used to determine if claims SUMMARY: This notice lists those forms, compliance with cargo liability submitted to the Oil Spill Liability Trust reports, and recordkeeping requirements requirements. Forms BMC–84 and 85 Fund are compensable and where imposed upon the public which were are filed by brokers to comply with the compensable, ensure that the correct transmitted by the Department of amount of reimbursement for damages requirement for a $10,000 surety bond Transportation to the Office of or trust fund agreement. Forms BMC– are made from the Fund. Management and Budget (OMB) for its Need: Coast Guard will ensure that 35, 36, and 85 cancel prior filings. approval in accordance with the Forms BMC–90 and 32 are fair and reasonable payments are made requirements of the Paperwork to claimants and will protect the interest endorsements which must be attached Reduction Act of 1995 (44 U.S.C. to BI&PD and cargo insurance policies, of the Federal Government. Claims that Chapter 35). Section 3507 of Title 44 of are submitted must be fully respectively, but are not filed with the the United States Code, requires that FHWA. Motor carriers can also apply to substantiated and the procedures for agencies prepare a notice for publication advertising and presentation of claims self-insure BI&PD and/or cargo liability in the Federal Register, listing must be followed as directed by OPA 90 in lieu of filing certificates of insurance information collection request (33 U.S.C. 2713 and 2714). or surety bonds with the FHWA. Form submitted to OMB for approval or Burden Estimate: The estimated BMC–40 is the application used to renewal under that Act. OMB reviews burden is 10,163 hours annually. apply for self-insurance authority. and approves agency submissions in 2. Title: Security Zones, Regulated Estimated Total Annual Burden: The accordance with criteria set forth in that Navigation Areas, and Safety Zones. estimated total annual burden is 200 Act. In carrying out its responsibilities, OMB Control Number: 2115–0076. hours for the BMC–40 based on 5 filings OMB also considers public comments Type Request: Extension of a per year. The estimated total annual on the proposed forms and the reporting currently approved collection. burden for all of the other forms is and recordkeeping requirements. OMB Form(s): N/A. 30,000 hours based on 180,000 filings approval of an information collection Affected Public: States, Local per year. requirement must be renewed at least Government Agencies, Vessels and once every three years. facilities. ADDRESSES: Send comments, within 30 The Federal Register Notice with a Abstract: The information for this days, to the Office of Information and 60-day comment period soliciting report is only collected when a security Regulatory Affairs, Office of comments on the information zone, regulated navigation area or safety Management and Budget, 725–17th collection’s described below was zone is requested. The information Street, NW., Washington, DC 20503, published on August 19, 1998 (63 FR collected will be used to assess the need Attention DOT Desk Officer. Comments 44503–44505). The ICR’s are: 1. Claims to establish a security zone, safety zone are invited on: whether the proposed Under The Oil Pollution Act of 1990; 2. or regulated navigation area. collection of information is necessary Security Zones, Regulated Navigation Need: 33 CFR, parts 6 and 165 gives for the proper performance of the Areas, and Safety Zones; 3. Advance the Coast Guard Captain of the Port functions of the Department, including Notice and Adequacy Certification for (COTP), the authority to designate whether the information will have Reception Facilities; 4. Commercial security zones in the U.S. for a period practical utility; the accuracy of the Fishing Vessel Regulations; 5. of time he deems necessary to prevent Department’s estimate of the burden of Equivalent and Approved Equipment; 6. damage or injury. 33 U.S.C. 1223 the proposed information collection; Marine Portable Tanks (MPT’s); authorized the Coast Guard to prescribe ways to enhance the quality, utility and Alteration Non-specification Portable regulations to control vessel traffic in clarity of the information to be Tanks; Approval; 7. Plan Approval and areas which are determined to be collected; and ways to minimize the Records For Vessels Carrying Oil in hazardous due to conditions of reduced burden of the collection of information Bulk; 8. Application For A Permit To visibility, adverse weather or vessel on respondents, including the use of Transport Municipal or Commercial congestion. 33 U.S.C. 1225 authorized automated collection techniques or Waste; and 9. State Access To The Oil the Coast Guard to establish regulations other forms of information technology. Spill Liability Trust Fund For Removal to allow the designation of safety zones Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58453 where access is limited to authorized standards and (f) that letters approving OMB Control Number: 2115–0503 persons, vehicles, or vessels to protect exemptions are being proposed to (2115–0520—Plan Approval and the public from hazardous situations. ensure that the master and individual in Records for Existing Tank Vessels of Burden: The estimated burden is 394 charge knew that the vessel is exempted 20,000 to 40,000 Deadweight Tons hours annually. from particular regulations. Carrying Oil in Bulk and 2115–0106— 3. Title: Advance Notice and Need: Under the authority of 46 Plan Approval and Records for Foreign Adequacy Certification for Reception U.S.C. 6104, the U.S. Coast Guard has Vessels Carrying Oil in Bulk, are Facilities. developed regulations in which to combined into this collection.) OMB Control Number: 2115–0543. reduce the unacceptably high level of Type Request: Revision of a currently (2115–0554 Advance Notice of Need for fatalities and accidents in the approved collection. Reception Facilities, is combined into commercial fishing industry. The Form(s): N/A. this collection). regulations will also act as means of Affected Public: Owners and Type Request: Extension of a verifying compliance and to enhance operators of vessels carrying oil in bulk. currently approved collection. safe operation of fishing vessels. Abstract: Title 46 U.S.C. 3703 Form(s): CG–5401, CG–5401A, CG– Burden Estimate: The estimated provides the Coast Guard with general 5401B, and CG–5401C. burden is 79,670 hours annually. authority to regulate the design, Affected Public: Reception Facility 5. Title: 33 CFR 140.15 Equivalents construction, alteration, repair, Owners and Operators of Ports and and Approved Equipment. maintenance, operation and equipping Terminals. OMB Control Number: 2115–0553. of vessels carrying oil in bulk. Abstract: Persons in charge of ports Type Request: Extension of a Need: The purpose of the collection is and terminals will submit information currently approved collection. to provide sufficient information to the necessary for the Coast Guard to Form(s): N/A. Coast Guard to determine that a vessel determine whether their reception Affected Public: Owner and/or complies with the minimum mandated facility is adequate. Ships in need of a operators of Outer Continental Shelf standards as promulgated by reception facility will be required to (OCS) facilities. regulations. give a 24 hour notice. Abstract: This collection of Burden Estimate: The estimated Need: 33 U.S.C. 1905 gives Coast information is necessary to implement burden is 315 hours annually. Guard the authority to certify the the Best Available and Safest 8. Title: Application For A Permit To adequacy of reception facilities at ports Technology concept of Section 21 of the Transport Municipal or Commercial and terminals. Reception facilities are Outer Continental Shelf (OCS) Act. Waste. needed to receive wastes which ships Need: The information is used by the OMB Control Number: 2115–0579. may not discharge at sea. Under these Coast Guard for comparison with Type Request: Extension of a regulations, there are discharge existing standards or procedures to currently approved collection. Form(s): N/A. limitations for oil and oily wastes, ensure that at least an equivalent level Affected Public: Owners or Operators noxious liquid substances, plastics and of safety is maintained as provided for of Municipal and Commercial Vessels other garbage. in the regulations. Burden Estimate: The estimated hour transporting waste. Burden: The burden estimate is 175.5 Abstract: The information collected burden is 100 hours annually. hours annually. under this report provides the basis for 4. Title: Commercial Fishing Industry 6. Title: Marine Portable Tanks issuing or denying a permit for the Vessel Safety Regulations. (MPT’s): Alteration Non-Specification transportation of municipal or OMB Control Number: 2115–0582. Portable Tanks; Approval. commercial waste in the coastal waters Type Request: Extension of a OMB Control Number: 2115–0585. of the United States. currently approved collection. Type request: Extension of a currently Need: In accordance with 33 U.S.C. Form(s): N/A. approved collection. 2601, the U.S. Coast Guard issued Affected Public: Underwriters of Form(s): N/A. regulations requiring owners or Insurance Co., Owners, Agents and Affected Public: Respondents: Owners operations of vessels to apply for a Individuals-in-charge of commercial of MPT’s. permit to transport municipal or fishing vessels. Abstract: The information collected commercial waste in the United States Abstract: The reporting requirements under 46 CFR subpart 98.33–1 specifies and to display an identification number for this information collection are that the Commandant of the Coast or other markings on their vessels. intended to improve safety on board Guard may approve the design of Burden Estimate: The estimated commercial fishing industry vessels. portable tanks for the transport of burden is 376 hours annually. The requirements apply to all certain Grade E combustible liquids and 9. Title: State Access To The Oil Spill commercial fishing vessels and seamen other low hazard materials when the Liability Trust Fund For Removal Costs on such vessels. The information tanks do not meet a DOT design Under The Oil Pollution Act of 1990. collections require: (a) The posting of a standard. OMB Control Number: 2115–0597. placard to inform individuals on board Need: Approval of the Coast Guard for Type Request: Extension of a of their duties, (b) that new fish alterations to MPT’s ensures that the currently approved collection. processing vessels meet all classification altered tank retains the level of safety to Form(s): N/A. and survey requirements of the which it was originally designed. In Affected Public: State Governments. American Bureau of Shipping, (c) that addition, rules that allow the approval Abstract: The information provided stability information for each vessel in of non-specification portable tanks by the State to the Coast Guard National detail be submitted, (d) marking of assure that innovation and new designs Pollution Funds Center will be used to lifesaving equipment, (e) that letters of are not frustrated by the regulation. determine whether expenditures acceptance for instructors and the Burden Estimate: The estimated submitted by the state to the Fund are course curriculum being proposed to burden is 53 hours annually. compensable and, where compensable, ensure that the instructors and the 7. Title: Plan Approval and Records ensure that the correct amount of course being taught meet minimum For Vessels Carrying Oil In Bulk. funding is made from the Fund. 58454 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

Need: Under the authority of 33 SUMMARY: The Federal Aviation program. The FAA does not substitute U.S.C. 2712, Coast Guard has Administration (FAA) announces its its judgment for that of the airport promulgated regulations detailing the findings on the noise compatibility proprietor with respect to which manner in which to obligate the Oil program submitted by the Indianapolis measures should be recommended for Spill Liability Trust Fund (or the Fund). Airport Authority under the provisions action. The FAA’s approval or In order to ensure fair and reasonable of Title I of the Aviation Safety and disapproval of FAR part 150 program payments to States and to protect the Noise Abatement Act of 1979 (Pub. L. recommendations is measured interests of the Federal Government, all 96–193) and 14 CFR part 150. These according to the standards expressed in expenditures submitted by a state must findings are made in recognition of the part 150 and the Act and is limited to be fully substantiated and the description of Federal and nonfederal the following determinations: procedures for presentation of those responsibilities in Senate Report No. a. The noise compatibility program expenditures to the Fund must be 96–52 (1980). On April 15, 1998, the was developed in accordance with the followed. FAA determined that the noise exposure provisions and procedures of FAR part Burden: The estimated burden in 3 maps submitted by the Indianapolis 150; hours annually. Airport Authority under part 150 were b. Program measures are reasonably Addresses: Written comments on the in compliance with applicable consistent with achieving the goals of DOT information collection request requirements. On October 9, 1998, the reducing existing noncompatible land should be forwarded, within 30 days of Associate Administrator for Airports uses around the airport and preventing publication, to Office of Information and approved the Indianapolis International the introduction of additional Regulatory Affairs, Office of Airport noise compatibility program. noncompatible land uses; Management and Budget, New Thirty-eight of forty-eight of the c. Program measures would not create Executive Office Building, Room 10102, recommendations of the program were an undue burden on interstate or foreign Washington, DC 20503, ATTN: USCG wholly or partially approved, two were commerce, unjustly discriminate against Desk Officer. If you anticipate withdrawn, three were disapproved for types or classes of aeronautical uses, violate the terms of airport grant submitting substantive comments, but purposes of part 150, and five agreements, or intrude into areas find that more than 10 days from the recommendations required no FAA preempted by the Federal Government; date of publication are needed to action. and prepare them, please notify the OMB EFFECTIVE DATE: The effective date of the d. Program measures relating to the official of your intent immediately. FAA’s approval of the Indianapolis use of flight procedures can be Comments are invited on: Whether International Airport noise implemented within the period covered the proposed collections of information compatibility program is October 9, by the program without derogating are necessary for the proper 1998. safety, adversely affecting the efficient performance of the functions of the INFORMATION CONTACT: use and management of the navigable Department, including whether the Prescott C. Snyder, Airport airspace and air traffic control systems, information will have practical utility; Environmental Program Manager, 2300 or adversely affecting other powers and the accuracy of the Department’s East Devon Avenue, Des Plaines, Illinois responsibilities of the Administrator estimate of the burden of the proposed 60018. Telephone Number (847) 294– prescribed by law. information collections; ways to 7538/FAX Number (847) 294–7046. Specific limitations with respect to enhance the quality, utility and clarity Documents reflecting this FAA action FAA’s approval of an airport noise of the information to be collected; and may be reviewed at this same location. compatibility program are delineated in ways to minimize the burden of the SUPPLEMENTARY INFORMATION: This FAR part 150, § 150.5. Approval is not collection of information on notice announces that the FAA has a determination concerning the respondents, including the use of given its overall approval to the noise acceptability of land uses under Federal, automated collection techniques or compatibility program for Indianapolis State, or local law. Approval does not by other forms of information technology. International Airport, effective October itself constitute a FAA implementing A comment to OMB is best assured of 9, 1998. action. A request for Federal action or having its full effect if OMB receives it Under section 104(a) of the Aviation approval to implement specific noise within 30 days of publication. Safety and Noise Abatement Act of 1979 compatibility measures may be Issued in Washington, DC, on October 16, (hereinafter referred to as ‘‘the Act’’), an required, and a FAA decision on the 1998. airport operator who has previously request may require an environmental Vanester M. Williams, submitted a noise exposure map may assessment of the proposed action. Clearance Officer, United States Department submit to the FAA a noise compatibility Approval does not constitute a of Transportation. program which sets forth the measures commitment by the FAA to financially [FR Doc. 98–29123 Filed 10–29–98; 8:45 am] taken or proposed by the airport assist in the implementation of the BILLING CODE 4910±62±P operator for the reduction of existing program nor a determination that all noncompatible land uses and measures covered by the program are prevention of additional noncompatible eligible for grant-in-aid funding from the DEPARTMENT OF TRANSPORTATION land uses within the area covered by the FAA. Where federal funding is sought, noise exposure maps. The Act requires requests for project grants must be Federal Aviation Administration such programs to be developed in submitted to the FAA Chicago Airports consultation with interested and District Office in Des Plaines, Illinois. Approval of Noise Compatibility affected parties including local Indianapolis Airport Authority Program, Indianapolis International communities, government agencies, submitted to the FAA on February 18, Airport, Indianapolis, Indiana airport users, and FAA personnel. 1998, the noise exposure maps, AGENCY: Federal Aviation Each airport noise compatibility descriptions, and other documentation Administration, DOT. program developed in accordance with produced during the noise compatibility Federal Aviation Regulations (FAR) part planning study conducted from ACTION: Notice. 150 is a local program, not a Federal November 1996 through February 1998. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58455

The Indianapolis International Airport materials and the documents Secretariat, 1140 Connecticut Avenue, noise exposure maps were determined comprising the submittal are available NW., Suite 1020, Washington, DC by FAA to be in compliance with for review at the FAA office listed above 20036; (202) 833–9339 (phone); (202) applicable requirements on April 15, and at the administrative offices of the 833–9434 (fax); or http://www.rtca.org 1998. Notice of this determination was Indianapolis Airport Authority. (web site). Members of the public may published in the Federal Register on Issued in Des Plaines, Illinois on October present a written statement to the April 23, 1998. 22, 1998. committee at any time. The Indianapolis International Pene’ A Beversdorf, Issued in Washington, DC, on October 26, Airport study contains a proposed noise 1998. compatibility program comprised of Acting Manager, Chicago Airports District Office FAA, Great Lakes Region, Janice L. Peters, actions designed for phased implementation by airport management [FR Doc. 98–29127 Filed 10–29–98; 8:45 am] Designated Official. and adjacent jurisdictions from the date BILLING CODE 4910±13±M [FR Doc. 98–29126 Filed 10–29–98; 8:45 am] of study completion to the year 2002. It BILLING CODE 4910±13±M was requested that the FAA evaluate DEPARTMENT OF TRANSPORTATION and approve this material as a noise DEPARTMENT OF TRANSPORTATION compatibility program as described in Federal Aviation Administration section 104(b) of the Act. The FAA Federal Aviation Administration began its review of the program on April RTCA Special Committee 172; Future 15, 1998 and was required by a Air-Ground Communications in the Notice of Intent To Rule on Application provision of the Act to approve or VHF Aeronautical Data Band (118±137 To Use a Passenger Facility Charge disapprove the program within 180 days MHz) (PFC) at Grant County International (other than the use of new flight Airport, Moses Lake, Washington; Pursuant to section 10(a)(2) of the procedures for noise control). Failure to Correction approve or disapprove such program Federal Advisory Committee Act (P.L. within the 180-day period shall be 92–463, 5 U.S.C., Appendix 2), notice is SUMMARY: This correction incorporates deemed to be an approval of such hereby given for Special Committee 172 information from the public agency’s program. meeting to be held November 17–20, application. The submitted program contained 1998, starting at 9:00 a.m. The meeting In notice document 98–27250 forty-eight proposed measures for noise will be held at RTCA, 1140 Connecticut beginning on page 54516 in the issue of mitigation. The FAA completed its Avenue, NW., Suite 1020, Washington, Friday, October 9, 1998, make the review and determined that the DC 20036. following correction: procedural and substantive The agenda will be as follows: In the first column: Proposed charge requirements of the Act and FAR part Tuesday, November 17: expiration date: April 1, 2009. 150 have been satisfied. The overall (1) Plenary Convenes at 9:00 a.m. for 30 minutes: Issued in Renton, Washington, on October program, therefore, was approved by the 23, 1998. Associate Administrator for Airports (2) Introductory Remarks; (3) Review David A. Field, effective October 9, 1998. and Approval of the Agenda; Outright or partial approval was (4) Working Group (WG)–2, VHF Data Manager, Planning, Programming and granted to thirty-eight of forty-eight Radio Signal-in-Space MASPS, Capacity Branch, Northwest Mountain Region. specific program measures. Seventeen of Continue Work on VDL Mode 3. nineteen of the noise abatement Wednesday, November 18: (a.m.) [FR Doc. 98–29124 Filed 10–29–98; 8:45 am] measures (including four submeasures (5) WG–2 Continues; (p.m.) (6) WG– BILLING CODE 4910±13±M under NA–4), seventeen of twenty-five 3, Review of VHF Digital Radio MOPS land use measures and all four of the Document Progress and Furtherance of DEPARTMENT OF TRANSPORTATION program management measures where Work. Thursday, November 19: (a.m.) wholly or partially approved. (7) Plenary Reconvenes at 9:00 a.m.: Federal Aviation Administration The other ten measures not approved (8) Review Summary Minutes of consisted of two land use measures that Previous Plenary of SC–172; Notice of Intent to Rule on Application were withdrawn by the Airport (9) Report on Operational Scenarios (98±03±U±00±RIW) to Use the Revenue Authority, three land use measures that Sub-group Meeting; From a Passenger Facility Charge were disapproved by FAA for purposes (10) Reports from WG’s 2 & 3 (PFC) at Riverton Regional Airport, of part 150, and five measures that Activities; (11) Report on AMCP WG’s Submitted by the City of Riverton, required no FAA action. Three of the and VDL Activities; (12) EUROCAE Wyoming five measures requiring no FAA action WG–47 Report and Discussion of were land use measures already Schedule for Further Work with WG–3; AGENCY: Federal Aviation completed. The other two were noise (13) Review Issues List and Address Administration (FAA), DOT. abatement measures incorporating flight Future Work; (14) Other Business; (15) ACTION: Notice of intent to rule on procedures, which were deferred Dates and Places of Next Meetings; (16) application. pending additional FAA review before WG’s Continue as Necessary. Friday, approval or disapproval. This deferral of November 20: (17) WG’s Continue as SUMMARY: The FAA proposes to rule and flight procedures is allowed under Necessary. invites public comment on the section 104(b) of the Aviation Safety Attendance is open to the interested application to use PFC revenue at and Noise Abatement Act of 1979. public but limited to space availability. Riverton Regional Airport under the These determinations are set forth in With the approval of the chairman, provisions of 49 U.S.C. 40117 and Part detail in a Record of Approval endorsed members of the public may present oral 158 of the Federal Aviation Regulations by the Associate Administrator of statements at the meeting. Persons (14 CFR 158). Airports on October 9, 1998. The Record wishing to present statements or obtain DATES: Comments must be received on of Approval, as well as other evaluation information should contact the RTCA or before November 30, 1998. 58456 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices

ADDRESSES: Comments on this and other documents germane to the Management, Inc. (the Intrepid Subs) as application may be mailed or delivered application in person at the Riverton the new subbareboat charterers of the in triplicate to the FAA at the following Regional Project. Vessels.1 Intrepid Ship Management, address: Mr. Alan Wiechmann, Issued in Renton, Washington on October Inc., a subsidiary of MTC, was formerly Manager; Denver Airports District 23, 1998. named OMI Ship Management, Inc. In Office; Federal Aviation Administration; David A. Field, carrying out its obligations as the 26805 E. 68th Avenue, Suite 224; Manager, Planning, Programming and operator under the ODSAs, each Denver, CO 80249–6361. In addition, Capacity Branch, Northwest Mountain Intrepid Sub may contract for specific one copy of any comments submitted to Region. management and technical services with the FAA must be mailed or delivered to [FR Doc. 98–29125 Filed 10–29–98; 8:45 am] MTC or subsidiaries of MTC. Mr. Vern Heisler, City Engineer/Airport BILLING CODE 4910±13±M As part of these transactions, the Manager, at the following address; 816 bareboat charters, the Title XI Reserve N. Federal, Riverton, Wyoming 82501. Fund and Financial Agreement, and the Air Carriers and foreign air carriers DEPARTMENT OF TRANSPORTATION Depository Agreement would be may submit copies of written comments assigned to and assumed by the previously provided to the Riverton Maritime Administration appropriate MTC Subsidiaries and the Regional Airport, under section 158.23 [Docket No: [MARAD±98±4650] current bareboat charterer would be of Part 158. released therefrom. The Vessels would FOR FURTHER INFORMATION CONTACT: Mr. Marine Transport Corp.; Application continue to be operated in the Chris Schaffer, (303) 342–1258, 26805 E. for Written Permission Under Section international trade for the duration of 68th Avenue, Suite 224; Denver, CO 608 and Section 805(a) of the Merchant their ODSAs. 80249–6361. The application may be Marine Act, 1936, as Amended Concurrently with the transfer of the reviewed in person at this same interest in the trust that holds legal title Marine Transport Corporation, by location. to the Vessels, the ODSAs would be letter dated September 28, 1998, SUPPLEMENTARY INFORMATION: assigned to and assumed by the The FAA requests consideration and approval of appropriate Intrepid Sub and Ocean proposes to rule and invites public the following transactions described Chemical Transport and Ocean comment on the application 98–03–U– herein. 00–RIW to use PFC revenue at Riverton The ITB JULIUS HAMMER and ITB Chemical Carriers would be released Regional Airport, under the provisions FRANCIS HAMMER (Vessels) are therefrom. of 49 U.S.C. 40117 and Part 158 of the currently subject to a leveraged lease Concurrently with the transfer of Federal Aviation Regulations (14 CFR financing with General Electric Credit GECC’s interest in the trust that holds Part 158). Corporation of Georgia (GECC) (as legal title to the Vessels and the On October 23, 1998, the FAA owner participant) and Fleet National assignment of the ODSAs, the Vessels determined that the application to use Bank, N.A. (as trustee) and bareboat would be time chartered to a joint the revenue from a PFC submitted by chartered to subsidiaries of Occidental venture to be formed by MTC and Stolt Riverton Regional Airport, Riverton, Chemical Corporation (Occidental Nielsen. The Joint venture, a foreign Wyoming, was substantially complete Chemical). Debt required for the corporation to be 75 percent owned by within the requirements of section construction and acquisition of the MTC and 25 percent owned by Stolt 158.25 of Part 158. The FAA will Vessels is subject to Title XI loan Nielsen, would be called Stolt Marine approve or disapprove the application, guarantees (the Title XI Obligation). The Transport (SMT). SMT would, in turn, in whole or in part, no later than ITB JULIUS HAMMER is subbareboat sub-time charter the Vessels to Stolt January 14, 1999. chartered to Ocean Chemical Transport, Product Tankers, Inc. The sub-time The following is a brief overview of Inc. (Ocean Chemical Transport) which charterer would employ the Vessels in the application. is the operator under Operating- accordance with the prevailing market Level of approved PFC: Differential Subsidy Agreement (ODSA), conditions. $3.00. MTC and its related companies Actual charge effective date: October Contract MA/MSB–440 and the ITB FRANCIS HAMMER is subbareboat request permission pursuant to section 1, 1995. 805(a) of the Merchant Marine Act, Proposed charge expiration date: chartered to Ocean Chemical Carriers, 1936, as amended (Act), to continue to March 1, 2007. Inc. (Ocean Chemical Carriers) which is Total requested for use approval: the operator under ODSA, Contract MA/ own, operate, or charter vessels in the $515,955. MSB–442. The Vessels are time coastwise trade (or to own a pecuniary Brief description of proposed project: chartered to a subsidiary of Occidental interest in entities that own, operate, or Construct new terminal building Chemical, Suwannee River Chartering, charter vessels in the coastwise trade) Class or classes of air carriers which Inc., and were constructed with following the approval of each Intrepid the public agency has requested not be Construction-Differential Subsidy Sub as operator under the appropriate required to collect PFC’s: None. (CDS). ODSA. Any person may inspect the Occidental Chemical, Marine MTC and its subsidiaries currently application in person at the FAA office Transport Corporation (MTC), and Stolt- own 14 U.S.-flag vessels and manage 17 listed above under FOR FURTHER Nielsen, S.A. (Stolt Nielsen) have Ready Reserve Fleet vessels and 6 INFORMATION CONTACT and at the FAA entered into a Memorandum of privately owned U.S.-flag vessels. Listed Regional Airports Office located at; Agreement (MOA) to (1) transfer the below are those U.S.-flag vessels that are Federal Aviation Administration, interest of GECC in the trust that holds owned and/or operated by MTC in the Northwest Mountain Region, Airports legal title to the Vessels to MTC Division, ANM–600, 1601 Lind Avenue subsidiaries to be formed (the MTC 1 By letter dated October 21, 1998, Occidental S.W., Suite 540, Renton, WA 98055– Subsidiaries) and (2) assign the ODSAs Chemical, Ocean Chemical Transport and Ocean Chemical Carriers support the request of MTC for 4056. from Ocean Chemical Transport and Ocean Chemical Transport and Ocean Chemical In addition, any person may, upon Ocean Chemical Carriers to one or two Carriers to assign the ODSAs to subsidiaries of request, inspect the application, notice subsidiaries of Intrepid Ship Intrepid Ship Management a subsidiary of MTC. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices 58457 domestic trade showing areas of specific service:

Size Owned vessels Area of operation Cargo type (DWT)

MARINE CHEMIST ...... West Coast ...... Chemical Parcel ...... 35,941 MBC±1 (Barge) ...... Gulf of Mexico or Gulf to Puerto Rico .... Chemical Parcel ...... 4,000 MBC±2 (Barge) ...... Gulf of Mexico or Gulf to Puerto Rico .... Chemical Parcel ...... 4,000 MARINE DUVAL ...... Texas to North Carolina ...... Molten Sulphur ...... 25,131 MARINE COLUMBIA ...... Alaska Trade ...... Crude Oil ...... 138,698 PATRIOT ...... Spot Trade ...... Product Carrier ...... 35,662 COURIER ...... East Coast ...... Product Carrier ...... 35,662 Vessels Operated For Other Owners: CHEMICAL PIONEER ...... Gulf of Mexico to New Jersey ...... Chemical Parcel ...... 35,491 BT ALASKA ...... Alaska Trade ...... Crude Oil ...... 191,120

MTC advises that simply changing the Bank, N.A., MTC, the MTC Subsidiaries, Date: October 27, 1998. operator of the Vessels for purposes of and each Intrepid Sub requests approval Joel C. Richard, the ODSAs will not change the of the following: Secretary, Maritime Administration. competitive marketplace for any U.S.- 1. Assignment of the ODSAs to the [FR Doc. 98–29149 Filed 10–29–98; 8:45 am] flag vessels operating exclusively in the appropriate Intrepid Sub; BILLING CODE 4910±81±P coastwise trade in competition with 2. Designation of each Intrepid Sub as MTC’s current U.S.-flag vessels. MTC the Operator pursuant to the appropriate claims non-MTC U.S.-flag vessels will ODSAs; DEPARTMENT OF THE TREASURY face exactly the same competitive 3. Permission pursuant to section conditions after the transfer of the Fiscal Service ODSAs as they do today. Therefore, 805(a) of the Act for MTC to operate according to MTC, no unfair vessels in the coastwise trade; and Treasury Current Value of Funds Rate competition within the meaning of 4. Such other approvals as may be AGENCY: Financial Management Service, section 805(a) of the Act will result from required for the above-described Fiscal Service, Treasury. the assignment of the ODSAs. transactions. MTC states that permitting MTC to Any person, firm, or corporation ACTION: Notice of rate for use in Federal undertake activities relating to having any interest in the application debt collection and discount evaluation. coastwise vessels following the transfer for section 805(a) permission and SUMMARY: Pursuant to Section 11 of the is also consistent with the objects and desiring to submit comments Debt Collection Act of 1982 (31 U.S.C. policies of the Act. MTC states it is the concerning the application must file 3717), the Secretary of the Treasury is oldest and one of the largest shipping written comments in triplicate, referring responsible for computing and companies in the United States and is to the docket number that appears at the publishing the percentage rate to be known for its long-term relationships top of this document with the Docket used in assessing interest charges for with its customers. MTC states it is a Clerk, U.S. DOT Dockets, Room PL–401, outstanding debts on claims owed the strong competitor as a shipowner and 400 Seventh Street, SW, Washington, Government. Treasury’s Cash ship operator in the U.S. maritime DC 20590. The petition should state Management Regulations (I TFM 6– industry. MTC advises that permitting clearly and concisely the grounds of 8000) also prescribe use of this rate by MTC to continue to operate under the interest and the alleged facts relied on agencies as a comparison point in U.S. flag for the duration of the ODSAs for relief. Such comments must be filed evaluating the cost-effectiveness of a supports, advances and promotes the no later than 5:00 P.M. Eastern Time, cash discount. Notice is hereby given U.S. merchant marine industry. November 13, 1998. that the applicable rate is 5 percent for MTC advises that no subsidy received If no petitions for leave to intervene by MTC pursuant to the ODSAs will be calendar year 1999. on section 805(a) issues are received used to benefit MTC’s non-subsidized DATES: The rate will be in effect for the within the specified time, or if it is coastwise operations. Under modern period beginning on January 1, 1999 and determined that petitions filed do not banking and accounting practices, ending on December 31, 1999. demonstrate sufficient interest to according to MTC, it is easy to audit the FOR FURTHER INFORMATION CONTACT: warrant a hearing, the Maritime use of subsidized funds by the Inquiries should be directed to the Administration will take such action as appropriate Intrepid Sub and provide Program Compliance Division, Financial may be deemed appropriate. needed assurances that funds will not Management Service, Department of the be co-mingled or used for non- The application and all comments Treasury, 401 14th Street, SW, subsidized purposes. received will be available for Washington, DC 20227 (Telephone: As a final matter, Intrepid and MTC examination at the above address (202) 874–6630). note that its request for permission between 10 a.m. and 5 p.m., e.t. Monday SUPPLEMENTARY INFORMATION: The rate under section 805 does not involve any through Friday, except Federal reflects the current value of funds to the issue of material fact that cannot be Holidays. An electronic version of this Treasury for use in connection with resolved promptly on the basis of document is available on the World Federal Cash Management systems and available information. Wide Web at http:/dms.dot.gov. is based on investment rates set for Pursuant to sections 608 and 805 of (Catalog of Federal Domestic Assistance purposes of Pub. L. 95–147, 91 Stat. the Act, and Article II–16 of the ODSAs, Program No. 20. 805 Operating-Differential 1227. Computed each year by averaging Ocean Chemical Transport, Ocean Subsidies (ODS)). investment rates for the 12-month Chemical Carriers, GECC, Fleet National By order of the Maritime Administrator. period ending every September 30 for 58458 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Notices applicability effective January 1, the rate is subject to quarterly revisions if the annual average, on the moving basis, changes by 2 per centum. The rate in effect for calendar year 1999 reflects the average investment rates for the 12- month period ended September 30, 1998. Dated: October 26, 1998. Bettsy H. Lane, Acting Assistant Commissioner, Federal Finance. [FR Doc. 98–29095 Filed 10–29–98; 8:45 am] BILLING CODE 4810±35±M federal register October 30,1998 Friday Rule DOT SpecificationCylinders;Proposed Hazardous Materials:Requirementfor 49 CFRPart107,etal. Administration Research andSpecialPrograms Transportation Department of Part II 58459 58460 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

DEPARTMENT OF TRANSPORTATION SW, Washington, DC 20590–0001. which was later amended in 1921, at 41 Comments should identify the docket Stat. 1445, § 233. In 1911 the ICC Research and Special Programs number, RSPA 98–3684(HM–220), and adopted a series of ‘‘Shipping Container Administration should be submitted in two copies. Specifications,’’ among which the ICC 3 Persons wishing to receive confirmation specification for seamless steel 49 CFR Parts 107, 171, 172, 173, 177, of receipt of their comments should cylinders was codified. That same year, 178, and 180 include a self-addressed stamped the ICC 4 specification for a lap-welded [Docket No. RSPA±98±3684(HM±220)] postcard. The Dockets Management cylinder for anhydrous ammonia was System is located on the Plaza Level of also published. As the welding process RIN 2137±AA92 the Nassif Building, at the above improved, from the riveted/brazed Hazardous Materials: Requirements for address. welds to resistance welding and then Public dockets may be reviewed DOT Specification Cylinders butt welding by the metal-arc process, between the hours of 10:00 a.m. to 5:00 the ICC 4 Specification series was AGENCY: Research and Special Programs p.m., Monday thru Friday, excluding expanded to include the 4BA, the 4BW, Administration (RSPA) DOT. Federal holidays. In addition, comments and others. By 1914, two other cylinder ACTION: Notice of proposed rulemaking can be reviewed by accessing the DOT specifications were codified: the ICC 7 (NPRM) and public meeting. Homepage (http://www.dot.gov). specification for steel cylinders for low Comments may also be submitted by E- pressure, nonliquefied gas, (which have SUMMARY: RSPA proposes to amend mail to ‘‘[email protected]’’. In every carried over to the present regulations, certain requirements in the Hazardous case, the comment should refer to the but not as specification 7) and the ICC Materials Regulations (HMR) to Docket number set forth above. 8 specification for acetylene gas establish four new DOT cylinder Public Meeting: The public meeting cylinders, which still exists today with specifications and to revise the will be held in Room 3200–3204 at the minor changes. requirements for maintenance, U.S. Department of Transportation’s In 1930, the ICC implemented requalification, and repair of all DOT Nassif Building, 400 7th Street SW, regulations for periodic inspection and specification cylinders. In addition, Washington DC, 20590. testing of cylinders; the regulations, as RSPA proposes to: revise the FOR FURTHER INFORMATION CONTACT: amended, were first published in the requirements for approval of cylinder Cheryl Freeman, telephone number Federal Register on December 12, 1940 requalifiers, independent inspection (202) 366–4545, Office of Hazardous (5 FR 4908). During the 1930’s and agencies, and nondomestic chemical Materials Technology, or Ryan Posten, 1940’s, the Compressed Gas Association analysis and tests; revise the cylinder telephone number (202) 366–8553, (CGA) developed and refined the water requalification, maintenance and repair Office of Hazardous Materials jacket test method for determining the requirements; and to revise the Standards, Research and Special serviceability of a cylinder. During requirements for hazardous materials Programs Administration, U.S. World War II, there was a shortage of that are authorized to be offered for Department of Transportation, high pressure gas cylinders. Because of transportation in cylinders. Finally, this Washington, DC 20590–0001. CGA’s work on steel wall stress NPRM incorporates a proposal to SUPPLEMENTARY INFORMATION: limitations, the ICC granted ‘‘temporary’’ regulatory relief to increase remove from use aluminum alloy 6351– I. Background T6 that was published in an advance the gas carrying capacity of existing Federal hazardous material notice under Docket HM–176A and cylinders by allowing the cylinders to transportation law (Federal hazmat law), terminates that docket (RIN: 2131– be filled 10% over their marked service 49 U.S.C. 5101–5127, authorizes the AB51). pressures, and by marking those Secretary of Transportation to regulate This action is being taken to— cylinders with a plus, ‘‘+’’, mark. Ten the manufacture and continuing simplify the HMR for construction of years later, the regulations were codified qualification of packagings used to cylinders; provide for flexibility in the into the Code of Federal Regulations (15 transport hazardous materials in design, construction and use of FR 8261; Dec. 2, 1950). In 1967, commerce, or packagings certified under cylinders; recognize recent advances in pursuant to the Department of Federal hazmat law for the cylinder manufacturing and Transportation Act, Pub. L. 89–670, 80 transportation of hazardous materials in requalification technologies; promote Stat. 931, regulatory responsibility for commerce. The HMR, 49 CFR parts 171– safety though simplification of the the transportation of dangerous articles 180, contain requirements for the regulations; reduce the need for in commerce was transferred from the manufacture, use, and requalification of exemptions; and facilitate international ICC to DOT. cylinders subject to Federal hazmat law, Through rulemaking and the issuance commerce. The intended effect of this including defining materials and of exemptions from the regulations action is to enhance the safe methods of construction, the frequency under 49 CFR part 107, subpart B, transportation of hazardous materials in and manner of inspection and testing, materials other than steel (e.g., cylinders. standards for cylinder rejection and aluminum and composite cylinders) DATES: Comment Date: Comments must condemnation, cylinder marking and now are authorized for use. be received on or before January 28, recordkeeping, authorizations for Nevertheless, apart from the 1999. packaging hazardous materials in substitution of the ‘‘DOT’’ identifier for Public Meeting Date: A public cylinders, filling, loading, unloading, the ‘‘ICC’’ identifier, many of today’s meeting will be held on December 8, and carriage in transportation. basic requirements remain virtually 1998; from 9:30 am to 4:00 pm. An Historically, Federal authority to unchanged from the time they were first additional meeting may be scheduled if regulate the transportation of incorporated into the regulations. there is substantial interest. compressed gases was given to the Over the years, RSPA has received ADDRESSES: Written Comments: Address former Interstate Commerce numerous petitions for rulemaking comments to the Dockets Management Commission (ICC) through the requesting various changes to the System, U.S. Department of Transportation of Explosives Act, 35 cylinder requirements. CGA filed most Transportation, PL 401, 400 Seventh St., Stat. 1135, section 233 (March 4, 1909), of these petitions that request changes to Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58461 the cylinder specifications. In 1969, cylinder with test pressure in place of II. New specification Standards for CGA submitted a petition (P–69) service pressure, and are distinguishable Metric-marked Cylinders containing six new proposals and by their specification designation A. Consolidation of Cylinder Standards revising eight previously-filed petitions. markings. Many of these 14 petitions were 2. The new specifications allows As discussed above, the current handled in subsequent rulemakings greater flexibility in the design and cylinder requirements have their origin such as Docket HM–69 adding a DOT 39 construction of metric-marked in the early 1900’s. The regulations were non-reusable, non-refillable cylinders. developed in a piecemeal fashion, with specification cylinder (August 24, 1971; 3. Independent inspection of all adjustments being made to address 36 FR 16579), Docket HM–85 updating metric-marked cylinders, both seamless particular situations and problems on a the DOT–4L cylinder material and welded. case-by-case basis. This NPRM properties (Nov. 5, 1971; 36 FR 21287), 4. Design qualification testing of represents RSPA’s first comprehensive and Docket HM–99 adding the DOT–3T metric-marked cylinders. review of the cylinder requirements. RSPA proposes to establish four new specification cylinder (Aug. 15, 1973; 38 5. The requalification of metric- cylinder specifications for seamless and FR 21989). marked cylinders and certain welded cylinders. These proposed In 1981, RSPA adopted a DOT 3AL nonmetric-marked cylinders using cylinder specifications are more specification under Docket HM–176 (46 thickness and shear wave ultrasonic performance oriented and incorporate FR 62452). This new specification for a testing in place of the volumetric provisions that recognize certain seamless aluminum cylinder, made of pressure test. domestic and international practices. definitely prescribed alloys, was based 6. Requiring any person who performs Cylinders made to these specifications in part on the petitions received from a requalification function that requires industry and an agency initiative to would be marked in metric units and marking an inspection or retest date on would be distinguished by a unique consolidate and eliminate the need for the cylinder to have approval from the seven exemptions authorizing the specification marking that closely Associate Administrator for Hazardous approximates the markings in draft manufacture of seamless aluminum Materials Safety (herein after referred to cylinders. In 1984, CGA petitioned (P– International Standards Organization as the Associate Administrator). (ISO) and the European Committee for 953) to include a welded stainless steel 7. Standardizing the requirements for cylinder similar to the DOT–4BW. At Standardization (CEN), Technical the repair and rebuilding of DOT 4 that time, CGA proposed the Committee, entitled ISO/TC58/SC4 ‘‘Gas series cylinders, other than the DOT 4L. designation ‘‘4SS’’ for the new stainless Cylinders Operational Requirements,’’ 8. Allowing a 10-year interval for steel cylinder. based on CEN Standard EN 1089–1, In 1990, CGA petitioned to add a new requalification of DOT 3-series metric- ‘‘Transportable gas cylinders—Gas 3F specification for a seamless steel marked cylinders used in certain types cylinder identification—Part 1: compressed gas cylinder designed for a of service. Stampmarking.’’ high stress level similar to the DOT–3T, 9. Allowing a 15-year interval for The new seamless cylinder but with a stronger structural integrity requalification of certain DOT 4-series specifications are identified as DOT 3M, similar to the DOT–3AA cylinder. The metric-marked cylinders used in certain 3ALM, and 3FM. The welded cylinder proposed 3FM specification provides for types of service. specification is identified as the DOT a greater efficiency in gas transportation. 10. Allowing, upon approval by the 4M. Eventually, RSPA anticipates that The above-mentioned petitions were Associate Administrator, the application the DOT 3M specification will replace given full consideration in the of requalification markings on cylinders the current DOT 3A, 3AA, 3AX, 3AAX, development of this NPRM. In by using alternative methods that 3B, and 3BN specifications. The DOT developing this NPRM, RSPA worked produce durable legible marks. 3ALM specification will replace the closely with the cylinder manufacturing 11. Implementing valve damage 3AL specifications. The DOT 3FM will and maintenance industries, and held protection and puncture resistance replace the higher strength 3AA and the several meetings with CGA to obtain criteria for all DOT specification 3T specifications. The DOT 4M will clarification of the CGA petitions. RSPA cylinders used for Division 2.3 or 6.1 replace the 4B, 4BA, 4BW, 4B240X, also held public outreach meetings with materials in Hazard Zone B, and 4B240ET, and 4E. In future rulemakings, industry that were announced in the puncture resistance criteria for those in RSPA plans to propose new metric- Federal Register. The industry Hazard Zone A. marked cylinder specifications to proposals and petitions have been 12. Discontinuing authorization for a replace the current specifications for the refined by RSPA based on RSPA’s filled cylinder with a specified service DOT 3E, 3HT, 4D, 4DA and 4DS; the 4L; compliance inspections and exemption life from being offered for transportation the 8 and 8AL; and the DOT 39. program, interpretations issued by in commerce after its service life has The basic specification requirements, RSPA, and certain industry consensus expired. those common to most metric-marked standards and practices that have 13. Providing filling pressures for cylinders, are in proposed § 178.69. This proven to be safe. RSPA believes the metric-marked cylinders based on section contains definitions, material of proposals in this NPRM are consistent critical temperature, test pressure, and construction, duties of the inspector, with sound industry practice and draft ISO Standard 11622. and criteria for all design and incorporate modern manufacture and 14. Requiring that pressure relief production qualification tests that may requalification technology. devices on all metric-marked be required by the individual Some of the more significant specification cylinders be set at no less specifications. Proposed § 178.70 proposals contained in this NPRM are: than test pressure. Requiring that contains requirements applicable to 1. The establishment of four new pressure relief devices on all 3-series, seamless cylinders. The individual cylinder specifications that are more nonmetric-marked specification specifications, containing additional performance-oriented and the removal cylinders be set at no less than test requirements, are in § 178.71 for the of several obsolete specifications. These pressure from the first requalification DOT 3M, § 178.72 for the DOT 3ALM, proposed specifications are expressed in due after the effective date of the final and § 178.73 for the DOT 3FM. metric units, require marking of the rule. Proposed § 178.81 contains 58462 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules requirements applicable to DOT 4M To make this effective required a change in in the stress at isolated areas of a cylinder welded cylinders. the ‘‘Regulations’’ covering ‘‘Charging of could be safely tolerated to allow for In all cases where the new proposed Cylinders with Non-liquefied Compressed localized damage or thinning; and a specifications differ, the new Gases’’ because it was to be applied to ‘‘Maximum wall stress limitation’’ was set; e.g., 73,000 psi for 3AA design cylinders. specification requirements will have a existing cylinders as well as new production. Therefore, section 173.302 was changed and This procedure of elastic expansion control level of integrity that is equivalent to, or 178 was not changed to cover cylinder design was developed to further justify the greater than, the current nonmetric and production. Thus, a 10% increase in the permanent use of the ‘‘10% overfill’’ by specification requirements. Significant gas carrying capacity of the existing cylinder guaranteeing that such cylinders would be changes from current requirements are fleet and new current production was controlled by limiting the loss of wall discussed further in this preamble. immediately achieved. This had the effect of thickness so that the stress at service pressure adding 10% additional cylinders. would be below the yield point of the B. Cylinder Filling Limits cylinder steel. * * * II. Technical Rationale for Allowing 10% CGA petitioned RSPA to change the (3) ‘‘That either the average wall stress or Higher Fill Pressures the maximum wall stress shall not exceed the test pressure from 5/3 times service A. Introduction wall stress limitations shown in the pressure for currently authorized DOT following table.’’ specification seamless cylinders to 3/2 The fleet of DOT 3 Series cylinders in use Rationale: Wall stress limitations for both times service pressure for newly during the war years performed safely average wall and isolated spots were constructed DOT specification seamless without a service failure, notably from fatigue developed for each ‘‘class of steel’’ used for or gas pressure rupture. Thus, the carefully ICC 3, DOT 3A, and DOT 3AA cylinder cylinders. In effect, the CGA proposal considered decision to allow the charging would increase the filling limit for most designs. (Much later DOT–3T was added.) pressure to be increased by 10% was These limits were selected from known of the new seamless DOT specification considered to be proven safe and technically physical properties of these steel classes; and cylinders to that currently authorized valid. were set to assure that stress at operation for cylinders marked with a ‘‘+’’ sign The compressed gas industry monitored pressures were: (1) well below yield point (see 49 CFR 173.302(c)). In the historical performance of their cylinder fleets and and (2) that an adequate burst pressure to and technical information provided to concluded that the ‘‘temporary’’ over-filling service pressure ratio was obtained. This support its petition, CGA stated: procedure could safely become a permanent clause amplifies the preceding clause 2. regulation. However, CGA decided to (4) ‘‘That an external and internal visual I. Background recommend certain controls to justify examination made the time of test or retest In 1942 during the height of industrial permanent continuation of this change which shows the cylinder to be free from excessive production for WWII, a shortage of high effected the design safety factor. Those corrosion, pitting, or dangerous defects.’’ pressure gas cylinders developed. The controls are now contained in CFR Title 49, Rationale: The body of data and service shortage was hampering the War effort. The clause 173.302 (c) entitled ‘‘Special filling experience available within the CGA had three manufacturers of large size cylinders limits for Specification 3A, 3AA, 3AX, 3AAX proven that the design criterion for DOT high were also forging shells and bombs and did and 3T cylinders’’. pressure cylinders was eminently safe; not have capacity to forge those and the The technical rationale for those controls especially as regards cycle life and rupture in required quantities of high pressure steel was: * * * service. The only cause of cyclic or tensile cylinders. (1) ‘‘That such cylinders are equipped with rupture would be damage inflicted during The War Production Board brought this frangible disc safety relief devices (without manufacture or service. Thus, the visual concern to the Compressed Gas Association fusible metal backing) having a bursting inspection before and during use was (CGA) to seek a remedy for the shortage of pressure not exceeding the minimum considered to be an essential safety measure, high pressure cylinders. One idea was to start prescribed test pressure.’’ which continues to be true today. up new production by spinning seamless Rationale: This was to guarantee that (5) ‘‘That a plus sign (+) be added tubing, which was initiated by Cueno-Press cylinder pressure from any source could following the test date marking on the and Taylor Forge; but that would take never reach the cylinder design burst cylinder to indicate compliance with months. An immediate ‘‘temporary’’ relief pressure. Therefore, lowering the ratio of paragraphs (c) (2), (3) and (4) of this section.’’ was conceived which was to increase gas service pressure to rupture pressure, was Rationale: This was to force both the carrying capacity by allowing an ‘‘overfill’’ of meaningless because the cylinders would be cylinder manufacturer and user to take a existing cylinders. After careful study, the equipped with a ‘‘rupture port’’ which would physical act to signify their guarantee of increase of 10% in filling pressure (i.e., from vent the gas pressure at a pre-determined compliance with the control methods. This 2015 to 2215 psi) was considered safe and pressure and prevent the cylinder from ever also was an easily discerned mark that technically sound because of the reaching its ‘‘burst’’ pressure. * * * permitted personnel to identify which conservative design required by DOT (2) ‘‘That the elastic expansion shall have cylinders were satisfactory, safe and qualified Specification 3A and of the existing high been determined at the time of the last test for charging to the ‘‘10% overfill’’. pressure cylinders produced thereto. or retest by the water jacket method.’’ For example: A 10% increase in wall stress Rationale: In the 1930s and 1940s the CGA B. Wall Stress and Safety Factors of Series 3 at the increased filling pressure maintained had developed and refined the water jacket DOT Cylinders the operating stress well below the yield test method, and developed the mathematical The most common high pressure cylinder point of the steel; and so, cyclic fatigue relationship of wall stresses as measured by in use in 1942 was the ICC–3A–2015 with failure would not become a factor for the the elastic expansion of individual cylinder size of 9′′ O.D. x 51′′ long, rated at 220 cubic ductile, low strength steel. Furthermore, the designs. The average wall stress as feet oxygen capacity. This cylinder made of operating stress would still be far below the determined by elastic expansion measured by normalized intermediate manganese steel ultimate tensile strength providing an the water jacket hydrostatic test was limited had an ultimate tensile strength of about adequate safety factor which related service to a specified stress less than the permitted 95,000 psi and had excellent ductility and pressure to rupture pressure; and the only maximum design stress. For example, 3AA good charpy impact strength at ¥50°F. to way the cylinder pressure of permanent gases design cylinders were to be rejected if the assure safe fracture performance. The design could reach burst pressure was by elastic expansion exceeded a value stress at test pressure was 49,500 psi which involvement in a fire. equivalent to the strain developed at an with the 5/3 test pressure ratio allows a stress By joint agreement between the War average wall stress of 67,000 psi; whereas, of 29,600 psi at 2015 psi service pressure. Production Board, Interstate Commerce the design wall stress limit in 178.37–10(b) The yield point was about 69,000 psi (about Commission (ICC) and the Gas Industry, it is 70,000 psi. This 4% decrease in wall stress 0.73 x U.T.S.). Thus the service stress was was decided to immediately allow a ‘‘10% was selected because elastic expansion about 50% of yield stress, which level overfill’’ for the existing cylinder fleet. This measures the average effective wall thickness assured a long (virtually infinite) cycle life. was to be allowed for both flammable and and not the minimum. At the same time it The burst stress to service stress ratio (safety non-flammable permanent gases. was concluded that a small increase (i.e., 4%) factor) was about 3.2 (95,000 ÷ 29,600).* * * Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58463

This ratio of operating stress compared to The change to 3/2 test versus 5/3 does not industry. This change would help make ultimate strength was obviously a change any measurable characteristic which marking DOT specification cylinders conservative design. The conservatism is would effect these failure modes. consistent with the practice in most more obvious in view of the fact that the 6. The ASME Code uses a 3/2 test pressure European countries which are currently cylinders were seamless, forged, high quality to working pressure ratio. steel pressure vessels which have no stress 7. Europe (18 countries) uses the 3/2 test marking cylinders with the test pressure concentration points in the longitudinal to service pressure ratio. shown in bar. plane of major stress. Furthermore, they were While considering this request, RSPA IV. Recommendation used in non-corrosive gas service and have reviewed its current marking no source to increase the contained pressure The minimum prescribed test pressure requirements as well as two draft during use except by the small fluctuations shall be 3/2 times the marked service documents on the subject of cylinder in ambient temperature or a fire. The pressure for all cylinders with a marked marking being considered by the ISO service of 500 psi or greater for all Series 3 cylinders are also subjected to periodic and the CEN. The documents are ISO/ requalification. In view of these facts/data steel cylinders. This should also be and the excellent service record, the decision considered for cylinders made of nickel, DIS 13769, ‘‘Gas cylinders—Stamp was made in 1942 to allow stress to increase aluminum or stainless steel. marking,’’ and CEN Standard EN 1089– 1, ‘‘Transportable gas cylinders—Gas about 32,600 psi at service pressure for the In considering the issue of cylinder cylinder identification—Part 1: ‘‘10% overfill’’. This equates to a working filling limits, RSPA also reviewed stress to burst strength ratio of 2.9 (95,000 ÷ Stampmarking.’’ technical information supplied by 32,600). Based upon this review, RSPA cylinder manufacturers and by holders Thus the ‘‘10% overfill’’ was considered proposes to change the way DOT of exemptions that authorize either a technically appropriate and eminently safe as specification cylinders are marked. The test pressure of 3/2 times service a way to increase the oxygen carrying new marking scheme will change the pressure or 10% overfill for materials capacity from 220 CF to 244 CF. These number and sequence of marks required cylinders have continued in service for over not currently specified in 49 CFR to be placed on DOT specification 50 years with a perfect safety record as 173.302(c), the hazardous materials cylinders by manufacturers and is regards cyclic or pressure rupture in service. information system data base for consistent with the sequence being The same effective stress at test pressure can incidents involving ‘‘+’’ marked proposed by both ISO and CEN. be achieved by testing either at 5/3 of 2015 cylinders, and the work currently being or 3/2 of 2215. These pressures are 3358 and However, RSPA does not proposed to done by the ISO and the United Nations 3323 which stresses the wall to 49,350 and require all of the cylinder marks Group of Experts on the Transport of 48,720 psi respectively. This 1.2% difference contained in either the ISO or CEN Dangerous Goods. After reviewing all in test pressure stress would be documents. The proposed marking the available information, RSPA has inconsequential with respect to cylinder scheme will also make it easier to safety. Therefore, the test pressure in the concluded that from a transportation identify those cylinders manufactured DOT 3A, 3AA, and 3T specifications can safety perspective, there is no technical to the proposed specifications. safely be changed to 3/2 instead of 5/3 reason or safety experience which Additionally, the marking scheme is service pressure. The following paragraph would prohibit increasing the cylinder similar to the type of marking scheme describes graphic presentation of the filling limits for seamless cylinders to situation with intermediate manganese contained in the United Nations those comparable to the levels currently normalized and chrome-moly quenched and Recommendations for the Transport of authorized in 49 CFR 173.302(c). tempered, which represents virtually 100% Dangerous Good for non-bulk Therefore, RSPA has accepted the CGA of the 3A and 3AA cylinders in the U.S. packagings and intermediate bulk proposal to increase the filling limits for * * * containers. It is proposed to write all the ‘‘10% new cylinders, in principle, but has The proposed marking sequence, with overfill’’ into the design conditions for DOT chosen to limit the proposal for each element separated by a slash mark, 3A, 3AX, 3AA, 3AAX, 3F (new) and 3T. This increased filling limits to metric-marked is as follows: can be accomplished by merely changing the DOT Specification cylinders. required test pressure from 5/3 x service Additionally, RSPA has not changed the DOT Specification pressure to 3/2 x service pressure. For all requirements in 49 CFR 173.302(c) for Country of origin intents and purposes, the cylinders would be Manufacturer’s identification exactly the same as discussed above. * * * the current DOT specification cylinders, but has moved them to proposed Serial number III. Conclusions § 173.302a(b). Stamp for non-destructive testing (if 1. DOT 3A and 3AA cylinders have been With regards to existing cylinders, applicable) in use since 1942 (54 years) with a ratio of RSPA is considering a process for Minimum wall thickness test pressure to service pressure of 3/2. At accepting certain DOT specification Water capacity (liters) time of manufacture or retest, the cylinders cylinders as meeting the new metric Test pressure (bar) are tested at 5/3 x service pressure; but the specifications, but is still considering Identification of alloy service pressure is increased by 10% for Tare weight (kg) filling. various conversion criteria. RSPA solicits comments from interested Identification of inspection agency 2. The 10% overfill pressure times 3/2 Test date results in a wall stress at test pressure only persons as to the interest and feasibility 1% less than the requirement to test at 5/3 of developing such a conversion REE (if applicable) times marked service pressure. program and, if feasible, specific criteria The most significant change is the 3. The 3/2 test pressure would result in a for requalifying and conversion of marking of the new specification calculated minimum wall of barely 0.001 existing cylinders. cylinders with test pressure instead of inch less for a current cylinder with a 0.250 service pressure. DOT specification wall minimum. C. Specification Markings on Metric- cylinders have always been designed to 4. The tiny decrease in wall thickness and marked Cylinders test pressure rather than service effect of 1% lower stress at test pressure would have no effect in overall cylinder In the CGA submission to RSPA, it pressure. Specifically, the stress safety. was requested that cylinders be marked formulas used to determine the 5. The service record since 1942 (54 years) in bar rather than psig. Bar is an minimum wall thickness of DOT has been perfect as regards rupture under gas internationally accepted metric unit for specification cylinders are calculated at pressure and cyclic fatigue characteristic. pressure in the compressed gas the minimum test pressure. 58464 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Additionally, as currently authorized in manufactured outside the United States examined by RSPA personnel on June 49 CFR 173.302(c), many cylinders used under the RSPA foreign cylinder 19, 1998, and found to be rusted to an to transport compressed gases which are approvals program are required to be extent that there is no doubt that the not liquefied, dissolved, toxic or inspected and certified by an IIA. rust formed long before the marked flammable are filled to a pressure 10% In order to maintain the high level of inspection date. Considering the amount in excess of their marked service safety established over the past 100 of undisturbed rust on the cylinder, it pressure and 49 CFR 173.304(f) years, to maintain the acceptability of was apparent that the person specifies, with limited exceptions, that DOT specification cylinders worldwide, requalifying the cylinder did not the pressure in the container at 130°F and to facilitate the harmonization properly prepare it for inspection by shall not exceed 5/4 times the marked between domestic and foreign cylinder first completely removing all rust from service pressure. While marking the test specifications, RSPA is proposing that the exterior surface of the cylinder, as pressure rather than the service pressure all cylinders manufactured or rebuilt to required by paragraph 3.1 of CGA will require the training of persons who the new DOT metric-marked cylinder Pamphlet C–6, which was developed by fill cylinders, it should not have any specifications be subject to inspection the compressed gas industry for adverse safety effects since by an IIA. In effect, this would continue adoption by reference as Federal inadvertently filling a cylinder to the the current DOT inspection regulations. marked test pressure, in bar, would requirements for seamless cylinders and In reviewing the approach for result in the cylinder being filled to a extend the practice to welded cylinders. resolving this issue, RSPA considered lower pressure than the currently IV. DOT Approval of Cylinder five options: marked service pressure in psig. Requalifiers (1) Continue the current provision Further, most cylinders are filled by a that allows persons who are not known person who uses a filling table that RSPA proposes that any person who to RSPA to requalify cylinders by shows the values already adjusted for requalifies a DOT specification cylinder performing visual inspections; changes in temperature and elevation. must be approved by the Associate (2) Adopt a registration program that RSPA envisions that cylinders marked Administrator prior to performing any would require persons who perform with test pressure will also be filled by requalification function that requires an visual requalification to be registered using filling tables. inspection or retest date to be marked with RSPA and to mark their requalifier on the cylinder. The affected functions identification numbers (RIN) on the III. Independent Inspection—New DOT include performance of a visual cylinders they inspect; Specification Cylinders inspection, pressure test, ultrasonic (3) Adopt an approvals program A DOT specification cylinder is, and thickness test, repair, or the rebuilding requiring that persons performing has been for the past sixty years, a of cylinders. This proposal will enhance requalifications of cylinders by visual widely recognized standard for the safe the accountability of the cylinder inspection be approved by RSPA upon transportation of compressed gases. This requalification process. written application containing wide acceptance has resulted in Currently, § 173.34(e)(13) permits a statements regarding their significant economic benefit to domestic cylinder used exclusively for certain qualifications; industry far beyond the value of the liquefied gases to be requalified for use (4) Adopt an approvals program that cylinders sold internationally. Market by performing an external visual would require persons performing demand for gases and equipment has inspection and marking the cylinder visual requalifications to be reviewed by increased as a direct result of the with the test date and an ‘‘E’’. The ‘‘E’’ an independent inspection agency; and reputation of the DOT cylinder for indicates that the cylinder was (5) Discontinue visual requalification strength, durability and quality. requalified by external visual inspection of cylinders, thereby requiring all Since the early 1900’s, cylinders in accordance with CGA Pamphlet C–6 affected cylinders to be hydrostatically manufactured under DOT’s ‘‘high rather than by a hydrostatic test. A retested. pressure’’ specifications have required person who performs only external RSPA selected option 3 for this NPRM independent inspection, originally visual inspections is not required to because it will not impose the burden referred to as ‘‘disinterested obtain an approval from, or register and added cost of employing an inspection.’’ Occasionally, RSPA with, the Associate Administrator. independent inspection agency while receives complaints from companies Although current § 173.34(e)(13) ensuring the accountability of a person about costs of independent inspection requires these persons to maintain performing visual requalifications and or claims that the companies’ employees records, RSPA does not know who or providing RSPA the authority to revoke are as knowledgeable and qualified, if how many persons requalify and mark or suspend the person’s approval for not more so, as the independent cylinders with an inspection date and demonstrated non-compliance with the inspector. However, RSPA’s Office of an ‘‘E’’, or the locations of their places requalification requirements. Also, by Hazardous Materials Enforcement, of business. Also, RSPA does not know requiring a certification that an through its compliance inspection whether these persons have the applicant has the ability to perform program, has found a higher level of knowledge and skills necessary to requalifications, RSPA believes each compliance with the regulations when perform the required functions, applicant’s awareness of the importance inspection and certification functions including use of required inspection of compliance will be heightened. RSPA are carried out by an Independent standards. solicits comments on these options and Inspection Agency (IIA) instead of by an RSPA inspectors have frequently others that RSPA may not have employee of the manufacturing observed DOT specification cylinders, considered. company. In order for DOT specification primarily in liquefied petroleum gas cylinders to be acceptable for service in service, that bear markings representing V. Requalification Markings most foreign countries, cylinders must that they were requalified for use. The RSPA proposes to amend § 171.2(d) to be certified through an inspection markings reflected dates of recent prohibit the misrepresentation of a process which is not controlled by the requalification by external visual requalification identification number cylinder manufacturer. Since 1977, all inspection. One cylinder, marked with (RIN) marking. Over the years, through DOT specification cylinders the letter ‘‘E’’ and the date ‘‘6 98,’’ was its compliance program, RSPA has been Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58465 in contact with dozens of individuals materials present a substantial risk to table would qualify under current who did not perform the required the public, transport workers and § 173.40(d)(1) without puncture testing. hydrostatic tests, but stamped the emergency responders even when small To minimize the testing burden, RSPA cylinders as though each cylinder had quantities are released. For smaller plans to perform puncture testing to passed the inspections and tests. The cylinders, shifting freight and dropping develop initial values for the table. steel stamps used to mark the cylinders are major sources of package damage RSPA is requesting that cylinder are readily available, low-cost and and releases of hazardous materials. manufacturers and shippers assist RSPA simple to use. RSPA believes that these Cylinders are sometimes dropped in in developing this table. RSPA is also and other factors (e.g., the high cost of handling, resulting in valve damage or soliciting comments on whether welded purchasing and maintaining hydrostatic cylinder punctures. In a study of cylinders and cylinders with wall test equipment when compared to the Hazardous Materials Information thickness of 2.0 mm or less are used for mere cost of obtaining a set of steel System (HMIS) reports for the past 10 the transportation of Division 2.3 and stamps) provide an economic years, RSPA found that over 30% of all 6.1 Hazard Zone B, C, and D materials. inducement for some individuals to reported cylinder incidents involved RSPA will use this information to engage in fraudulent activities. Based on valve damage. Valve damage occurs further develop the puncture testing recent enforcement data, this safety when valves are inadequately protected threshold table. When sufficient data is problem appears to be more widespread by outer packagings or valve protection available, RSPA would consider the than RSPA originally thought. RSPA is devices. Punctures most commonly development of a graph or calculation as concerned about the number of occur when a cylinder is impacted by a more practical means to depict a cylinders that are fraudulently stamped handling equipment or other cargo or is minimum thickness threshold for and then are used to transport dropped upon other cargo or handling puncture resistance. hazardous materials in commerce. equipment. To reduce the probability VII. Discontinuation of Certain These cylinders, whose structural that a handling incident may result in Cylinder Specifications integrity has not been verified, pose the release of a TIH material, RSPA substantial risks to health, safety and proposes to expand the current drop test RSPA proposes to discontinue the use property. When RSPA discovers these requirement for cylinders containing of the following DOT cylinder situations, RSPA publishes a safety alert TIH materials to include Hazard Zone B specifications: 3C, 3D, 4, 4A, 4B240X, notice (see Notice No. 97–2, 62 FR materials and a performance test for 4B240FLW, 4C, 9, 25, 26, 33, 38, 40 and 19651; Notice No. 97–3, 62 FR 24548) cylinder puncture for TIH materials in 41. RSPA believes that these cylinders and, where appropriate, refers the Hazard Zones A and B. These proposed are obsolete and no longer in general matter to the Department of Justice for performance tests apply to bare use. Authorization to manufacture these possible criminal prosecution (see cylinders and cylinders packed in cylinders was removed from the United States v. American Oxygen strong outside packagings. regulations on September 11, 1980 (45 Company, et al., Docket No. 97–533 The performance test for puncture is FR 59887). Comments are solicited from (D.N.M.)). based upon dropping a cylinder seven persons who may be using these RSPA is also soliciting comments on feet; the same height used in the drop cylinders. the issue of what future method or test for cylinder valve protection. The If the proposals contained in this methods should be used to mark DOT seven-foot drop height represents the NPRM lead to publication of a final rule, specification cylinders during the typical distance that an industrial gas RSPA proposes to provide a transition requalification process. Currently, after cylinder would encounter if it fell from period of five years from the effective a cylinder meets the requalification a truck. RSPA chose an angle iron (2 date of the final rule for the continued standards (e.g., passes a hydrostatic test, inch by 2 inch by 0.25 inch thick) as a construction of cylinders made to the internal and external visual typical penetrator. The major following DOT specifications: 3A, 3AX, examinations, etc.), the requalifier parameters controlling cylinder 3AA, 3AAX, 3AL, 3B, 3T, 3BN, 4B, stamps the month and year of the test penetration are cylinder material, wall 4BA, 4BW, 4B240ET, and 4E. RSPA and its RIN on the cylinder. This thickness, drop height and the believes a five-year transition period for marking is normally accomplished with cylinder’s gross weight. For consistency, new construction of cylinders steel stamps (Note: currently under an RSPA proposes the cylinder weight be conforming to these specifications will exemption certain fiber-wrapped the water-filled weight. To represent in- reduce the burdens incurred by persons cylinders may be marked with labels.). service stress conditions, the proposed affected by this proposal. Cylinders Through this rulemaking, RSPA is test is performed on the filled cylinder made to these specifications would be evaluating the merits of new marking charged to service pressure for authorized for continued use as long as methods for DOT specification cylinders nonmetric-marked cylinders and 67% of they meet standards for periodic following the requalification process. test pressure for metric-marked requalification. Voluntary compliance RSPA is considering incorporating a cylinders. with the new metric or revised number of marking options (e.g., The puncture-performance test would requirements would be authorized 90 labeling, marking with a laser, replacing be required for metric-marked and days following publication of the final the RIN with a symbol that is difficult nonmetric-marked cylinders. To rule in the Federal Register. to duplicate, etc.). RSPA is requesting facilitate implementation of this VIII. Pressure Relief Device (PRD) comments from the public as to the requirement for nonmetric-marked Systems feasibility, costs and benefits of cylinders, RSPA is proposing a two-year alternatives to the metal stamping implementation period. RSPA also In a previous rulemaking (see, Docket method and whether the public believes proposes a table showing threshold No. HM–220A, 61 FR 26750, 26756; there is justification for RSPA adopting values of wall thickness for cylinders of May 28, 1996), RSPA proposed an alternative method. a particular specification, material, and voluntary compliance with CGA water-filled weight range. Cylinders Pamphlet S–1.1, paragraph 9.1.1.1, VI. Toxic Gases meeting the specified criteria with a which would require verification that Division 2.3 and 6.1, Hazard Zone A minimum side wall thickness equal to the PRDs operate properly. RSPA made and B toxic inhalation hazard (TIH) or greater than the value specified in the this proposal based on the view that 58466 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules over time certain components within a IX. Related Rulemakings, Petitions for that DOT 3AL cylinders made from PRD will cease to function as designed. Rulemaking, and Safety aluminum alloy 6351, including Thus, RSPA proposed adopting Recommendations cylinders authorized under exemption paragraph 9.1.1.1 which would have Docket HM–176A (RIN 2131–AB51). DOT–E 7235, pose a greater probability required that the operation of the PRD RSPA proposes to amend § 178.46 to of failure than other cylinders. Further, be verified. A number of commenters remove aluminum alloy 6351–T6 as an information available to RSPA reveals opposed this proposal citing its cost and authorized material for the manufacture that it is difficult to detect cracks in the lack of incident data supporting of DOT 3AL seamless cylinders. In these cylinders which adds to the risks. adoption of this requirement. Based on January 1990, at RSPA’s urging, RSPA published several notices to alert the need to gather more data and review manufacturers of DOT 3AL cylinders persons to the safety risk associated the cost estimates submitted, RSPA voluntarily discontinued the use of with cylinders manufactured to the DOT withdrew the proposal and agreed to aluminum alloy 6351–T6 because consider the proposal in a future 3AL specification or under exemption cylinders made of this alloy are rulemaking. RSPA continues to evaluate DOT E–7235 and containing alloy 6351 susceptible to cracks that could result in adopting this industry standard. (50 FR 32944, August 15, 1985; 58 FR Since publication of HM–220A final leaks or ruptures. 15895, March 24, 1993, 59 FR 38028, On July 10, 1987, RSPA published in rule, gas industry representatives have July 26, 1994). Thus, there is sufficient the Federal Register a safety advisory expressed the view that over time most data which demonstrates that this alloy and advance notice of proposed polymers, used as seats in PRDs, is not suitable for the manufacture of vulcanize. Vulcanization prevents the rulemaking (ANPRM) (Docket No. HM– compressed gas cylinders and that it 176–A; 52 FR 26027) to inform all devices from functioning as designed. should be removed as an authorized persons possessing DOT 3AL (49 CFR RSPA solicits information on the construction material. 178.46) cylinders, made of aluminum following: Petitions for rulemaking. RSPA has 1. Data and comments on the cost, alloy 6351 manufactured by Luxfer USA received numerous petitions for effectiveness and need for adopting Limited, that cracks had developed paragraph 9.1.1.1, in CGA Pamphlet S– during service which occasionally rulemaking requesting changes to the 1.1. resulted in leakage and loss of cylinder cylinder specifications and related 2. Additional incident data from State contents. In addition to the safety commodity and requalification and local officials concerning incidents advisory, the notice identified those requirements. These petitions were held that involved compressed gas cylinders cylinders at risk, suggested steps that in abeyance and were considered in the which may not have been reported to users should take to minimize risks, and development of this NPRM. Most of the RSPA because the incident did not requested industries’ comments requested changes are included in this involve a hazardous materials carrier or concerning the extent of the problem NPRM. Because of the proposals in this did not meet the reporting criteria and their suggestions on corrective NPRM to establish four new cylinder specified in 49 CFR § 171.16. measures. specifications and to discontinue 3. Comments on the need to require RSPA received 31 comments from construction of cylinders to certain PRD manufacturers to certify a manufacturers, distributors, and current specifications, some of the performance range and period for their industrial users of aluminum alloy requests for changes to the current cylinders. Some commenters submitted devices. Thus, a PRD would have to regulations are no longer warranted. A findings of studies for cylinders perform within specific limits summary of the petitions, with RSPA’s throughout a specific life. manufactured with aluminum alloy comment shown in brackets, are as Public comments that address these 6351, including sustained load cracking issues will be considered in a future (SLC) behavior testing. The majority of follows: rulemaking. the comments and findings concluded

Petition No. Request

0095 ...... Consolidate the DOT 3-series specifications to permit unified specifications. Filed by CGA [Proposed in §§ 178.69±178.73 for metric-marked cylinders]. 0154 ...... Permit filling of non-toxic, nonliquefied flammable gases to 110% of the cylinder's marked service pressure (including hy- drogen). Filed by CGA [Proposed in § 173.302b for metric-marked cylinders]. 0312 ...... Align rejection criteria of welded cylinder specifications to permit testing of second specimen from same lot if first speci- men fails. Filed by the Canadian Transport Commission [Proposed in § 178.81 for metric-marked cylinders]. 0324 ...... (Request same as P±0312). Filed by the Association of American Railroads. 0457 ...... Revise cylinder repair and rebuilding requirements. Filed by CGA [Proposed in § 180.211 for all cylinders]. 0553 ...... Amend Part 178 to change cylinder lot size in each specification. Filed by CGA [Proposed in § 178.70 for seamless met- ric-marked cylinders and in § 178.81 for metric-marked welded cylinders]. 0652 ...... Revise § 173.302(c)(3) table to add a fifth class of steel for DOT 3 series cylinder tubes. Filed by CGA [Proposed in § 178.70 for metric-marked cylinders]. 0752 ...... Amend the table in 178.37±5(a), by adding a column titled ``Authorized Chemical analysis (designation 10B30).'' Filed by Pressed Steel Tank. (See DOT E 8311) [Proposed in § 178.70 for metric-marked cylinders]. 0823 ...... Incorporate by reference CGA Pamphlets C±1 and C±5. (See also P±981). Filed by CGA [Incorporated by reference in § 171.7]. 0866 ...... Revise required sequence for display of specification markings on seamless aluminum cylinders and allow use of new marking techniques [Proposed in § 178.69 for metric-marked cylinders]. 0953 ...... Establish a new specification for manufacture of new welded, stainless steel cylinders. (See E±4884). Filed by CGA [Pro- posed in § 178.81 DOT 4M specification]. 1040 ...... Revise § 173.304(c) and (d)(4) to expand specific gravities for LPG, at 42% filling density, from 0.504±510 to 0.497± 0.510. Filed by the National Propane Gas Association [Proposed in § 173.304b for metric-marked cylinders]. 1071 ...... Permit use of DOT 3AL cylinders for any gas or gas mixture that is compatible with aluminum. Filed by CGA [Proposed greater use DOT 3ALM cylinders in § 173.302b]. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58467

Petition No. Request

1082 ...... Revise 173.302(f) to remove 5/6 filling pressure limitation applicable to DOT 3AL cylinders. Filed by CGA [Proposed in § 173.301a for DOT 3AL cylinders and in § 173.301b for DOT 3ALM cylinders]. 1087 ...... Establish a new specification for seamless steel cylinders having a design stress of not more than 90,500 psi and a water capacity of not more than 150 pounds. (E±9001, 9370, 10047). Filed by CGA [Included in proposed new DOT 3FM specification in § 178.73]. 1090 ...... Require that a cylinder requalified by visual inspection must be marked with the retester's identification number. Filed by CGA [Proposed in § 180.213]. 1189 ...... Establish a new low pressure welded stainless steel cylinder specification. Filed by CGA. Includes P±0953 [Proposed in § 178.81 DOT 4M specification]. 1229 ...... Revise §§ 178.36 thru 178.60 to specify procedures for conducting tensile test. Filed by CGA [Proposed in § 178.69 for metric-marked cylinders]. 1233 ...... Permit nondestructive requalification testing of compressed natural gas (CNG) cylinders. Filed by FIBA [Proposed in §§ 178.69, 180.207 and 180.209 for metric-marked cylinders and certain nonmetric-marked cylinders]. 1263 ...... Revise § 173.34(e)(18) to permit the use of a permanent, non-transferrable label for retest and inspection markings on fire extinguishers. Filed by Amerex [Proposed in 180.213]. 1277 ...... Revise § 173.34(i)(4) to except DOT 4BW cylinders from heat treatment after replacement of nonpressure attachments. Filed by Manchester [Proposed in § 180.211 subject to certain conditions].

National Transportation Safety Board New section Old section New section Old section (NTSB) Safety Recommendations. I–92–001 (c)(6) (a)(2) ...... (a)(2). (c)(7) (a)(3) ...... (a)(4). Recommends that RSPA require (d) ...... (c), (i). (a)(4) ...... (a)(3). attachments to all DOT authorized 107.805(a) .... 173.34(e)(2)(ii). (a)(5) ...... (a)(4) ± (5). hazardous materials packagings be (b) ...... (e)(2)(ii). (b) ...... (c). designed to minimize the risk of (c) ...... (e)(2)(ii)(A). (c) ...... (f). puncturing other hazardous (d) ...... (e)(2)(ii)(B). (d) ...... (f). materials packagings during an (e) ...... (e)(2)(ii)(B). (e) ...... (d). accident situation. (Proposed in (f) 173.302b § 173.301(m)) 107.807(a) .... 173.300b. 173.304(a) .... 173.304(a) intro, (a)(1). I–90–008 (b) ...... (b). (a)(1) ...... (a)(4). Recommends that RSPA require (c) ...... (g). (a)(2) 173.301(a) (a)(3) hazardous material cargo to be (a)(1) ...... 173.301(h). (b) ...... (b). secured in transportation with (a)(2) ...... 173.34(e)(1). (c) ...... (a) intro. adequate restraint systems to (a)(3) ...... (e)(17). (d) ...... (e). prevent ejection of cargo from (a)(4) ...... (a)(2). (e) ...... (f). vehicles. (Proposed in § 177.840) (a)(5) ...... (e)(1)(ii). 173.304a(a) .. 173.304(a). I–90–009 (a)(6) ...... 173.301(k). (c) ...... (c). Recommends that RSPA require (a)(7) (d) ...... (d) . independent inspection of new and (a)(8) (e) ...... (h). reconditioned low pressure (a)(9) 173.304b (a)(10) ...... 173.301(k). 173.315(p) .... 173.301(d)(5). cylinders that are consistent with (b) ...... 173.34(c). 180.201 present independent inspection (c) ...... 173.301(a). 180.203 requirements for high pressure (d) ...... (b). 180.205(a) cylinders [Proposed for 4M (e) ...... 173.34(c). (b) ...... 173.34 (e)(2). cylinders in § 178.69.] (f) ...... 173.301(d). (c) intro ..... (e)(1). (g) intro (c)(1) ...... (e)(1). X. Cross Reference Table (g)(1) thru 173.301(g)(1) thru (g)(3). (c)(2) The following table lists the proposed (g) (3). (c)(3) ...... (c)(3). paragraphs or sections and, where (h) ...... (g). (c)(4) applicable, the corresponding paragraph (i) (d) (j) ...... (i). (e) ...... (e)(17). or section contained in the current (k) (f) ...... (e)(3). HMR. In some cases, the cross (l) ...... (j). (g) ...... (e)(4). references are to provisions which are (m) (h) ...... (e)(5). similar to, but not identical with current 173.301a(a) .. 173.301(e). (i) ...... (e)(6). provisions. (b) ...... (e)(1). 180.207 (c) ...... (e)(2). 180.209(a) .... 173.34(e) intro. New section Old section (d) ...... (f) . (b) ...... (e)(16). (e) ...... 173.34(b). (c) ...... (e)(9). 107.801 173.301b (d) ...... (e)(10). 107.803(a) .... 173.300a(a). 173.302(a) .... 173.302(a)(4), (a)(5)(i) thru (e) ...... (e)(11). (b) ...... 173.300a, 173.34(e)(2)(ii) (iii). (f) ...... (e)(12). third sentence. (b) ...... 173.302(a)(4), (a)(5)(i) thru (g) ...... (e)(13). (c) intro ..... 173.300a(b). (iii). (h) ...... (e)(14). (c)(1) ...... (b)(2). (c) ...... 173.301(e). (i) ...... (e)(18). (c)(2) ...... (b)(3). (d) ...... 173.301(f). (j) ...... (e)(19). (c)(3) ...... (b)(6). 173.302a(a) 173.302(a). (k) (c)(4) ...... (b)(7). intro. 180.211 ...... 173.34(g), (i) through (l). (c)(5) ...... (a). (a)(1) ...... (a)(1). 180.213 ...... 173.34(c), (e)(7). 58468 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

New section Old section currently in § 173.300a, would also Part 172 permit an IIA, upon approval by the In the § 172.101 Table, in column (8b) 180.215 ...... 173.34(e)(2)(v), (e)(8), Associate Administrator, to perform for the entries ‘‘Cyanogen’’, ‘‘Germane’’, (e)(13). other functions relating to the cylinder and ‘‘Iron Pentacarbonyl’’ would be requalification requirements prescribed revised to specify packaging XI. Summary of Regulatory Changes by in Part 180. authorization sections that are Section Proposed § 107.805 (current consistent with their toxic properties. § 173.34(e)(2)) prescribes application Part 107, Subpart I procedures for a person seeking an Part 173 Section 107.801–107.807 approval to perform periodic cylinder Section 173.34 This new subpart would contain requalifications. The procedures would be revised and broadened to apply to The provisions in this section would procedures whereby persons may seek be relocated to subpart I of part 107, approval from the Associate any person who performs a function after which the cylinder is required to § 173.301 and subpart B of part 180, as Administrator to be a cylinder appropriate, and § 173.34 would be requalifer, an independent inspection be marked with a date as discussed in Part IV of this preamble under the removed. All references to § 173.34 in agency (IIA), or to have chemical tests the HMR, approximately 150 in number, or analysis performed outside the heading ‘‘DOT approval of cylinder requalifiers’’. Because these provisions would be removed and replaced with United States for DOT specification the appropriate section reference. cylinders manufactured outside the would be expanded to apply to repairers United States. These requirements are and rebuilders, the terms ‘‘retester’’ and Section 173.40 ‘‘retester identification number’’ would contained currently in §§ 173.300a, The requirements for toxic materials be replaced with the terms ‘‘requalifier’’ 173.34(e) and 173.300b, respectively. packaged in cylinders would be revised and ‘‘requalifier identification number,’’ This new subpart would contain the to include an additional performance specific requirements. Current respectively. Proposed § 107.807 (current criteria for puncture resistance. The requirements in 49 CFR Subpart H of requirements in § 173.40 currently Part 107 would be referenced for § 173.300b) prescribes the application procedures for issuance or renewal of an apply only to materials in Hazard Zone minimum content of an application, the A. All requirements except the controls RSPA office where an application is to approval to perform chemical analyses and tests outside the United States on on closures would be expanded to be filed, and the procedures that will be Hazard Zone B materials. RSPA requests used to process or terminate an DOT specification cylinders manufactured outside the United States. comments on whether cylinders with application for approval. Hazard Zone B materials should be The criteria permit the selection of Part 171 required to meet the same closure any person or organization, foreign as Section 171.2 requirements required for Hazard Zone well as domestic, that is technically A. competent to perform the prescribed Paragraph (d)(3) would be amended to As discussed earlier in this preamble, functions and is free from undue clarify that no one may mark a DOT 3AL cylinders made of aluminum influence by persons involved with the requalifier identification number on a alloy 6351–T6 are susceptible to fabrication, ownership or movement of cylinder that has not been requalified in sustained load cracking (SLC) in the the cylinders that the applicant, if accordance with the applicable neck and shoulder area of the cylinder approved, would be called upon to requirements. head and, therefore, may leak in evaluate and certify. Under this Section 171.7 transportation. Leaks of Toxic proposal, RSPA would accept for This section would incorporate the Inhalation Hazard (TIH) materials pose transportation in the United States a significant threat to health and safety. foreign-made cylinders that are similar latest editions of previously approved CGA Pamphlets, incorporate certain At least two major gas suppliers have in construction to the proposed DOT voluntarily stopped using these metric-marked cylinders. As part of this additional ASTM and CGA standards, and add references to certain cylinders in TIH gas services. The policy, if the United States recognizes proposed regulation will reduce the risk cylinders manufactured outside the publications of the American National Standards Institute (ANSI). to health and safety associated with TIH United States and approved by a third materials leaking through cracks in party inspector approved by another Section 171.8 cylinders. RSPA proposes that this government, then equal treatment is Definitions for ‘‘metric-marked regulation be imposed on the effective expected of that government relative to cylinder’’ and ‘‘nonmetric-marked date of this rule. After that date, cylinders manufactured in the United cylinder’’ would be added. cylinders made of 6351 alloy may not be States and approved by an IIA approved filled and offered for transportation in by DOT. Therefore, a foreign third-party Section 171.12 TIH service. Cylinders filled prior to inspector, who certifies cylinders Paragraph (b)(15) would be revised to that date may be offered for manufactured outside the United States, include references to § 171.12a(b)(13). transportation and transported to their must submit a statement from the ultimate destination and, when Section 171.12a competent authority of the foreign necessary, cylinders containing unused government stating that similar On August 18, 1998, RSPA issued a gas may be returned to the person who authority is delegated to manufacturers notice of proposed rulemaking [Docket filled the cylinder. of metric-marked cylinders in the HM–215C; 63 FR 44312] which United States and that no additional proposed to revise paragraph (b)(13) to Section 173.163 limitations are imposed. provide reciprocity for certain Canadian The requirements for nonmetric- Proposed § 107.803 (current specification cylinders to be transported marked cylinders containing hydrogen § 173.300a) prescribes application within the United States. This HM– fluoride would be amended to require procedures for approval or renewal as 215C proposed change is reprinted here ultrasonic examination as the only an IIA. These procedures, contained for the benefit of readers. authorized requalification method. This Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58469 proposal is based on the fact that the bromine trifluoride in Hazard Zones A and minor traffic accidents. Also, the presence of moisture in a cylinder and B materials must conform to packaging standards for cylinders are containing hydrogen fluoride causes § 173.40 as required for similar designed to prevent failure of a cylinder rapid corrosion of the cylinder wall. materials. from over pressurization, particularly, when it retains substantial stored Since removal of all moisture after Sections 173.300a–173.300c hydrostatic testing is very difficult, the energy. Thus, a balance must be set current requirements authorize only the The provisions in these sections between competing interests for keeping external visual inspection in lieu of would be relocated to new Subpart I of a hazardous material, particularly hydrostatic testing and internal visual Part 107 and §§ 173.300a, 173.300b and Division 2.1 and 2.3 gases and Division inspection. At the time the requirement 173.300c would be removed. 2.2 gases with oxidizing properties, in a was last amended, no other alternative Sections 173.301–173.301b packaging and allowing such a material examination was available to reliably to escape in order to prevent the Current § 173.301 would be revised examine the cylinder without packaging from rupturing. and proposed §§ 173.301a and 173.301b introducing moisture into the cylinder. Under current regulations, the type would be added. Section 173.301 would An ultrasonic examination, to examine and setting of PRD systems are contain the general shipper the internal sidewall for defects, can be established by CGA Pamphlet S–1.1. requirements for the use of specification performed without introducing moisture CGA Pamphlet S–1.1 allows a PRD cylinders that are currently in § 173.34 to the cylinder. This section also would setting to be 75% to 100% of test and the standard requirements for be amended to include metric-marked pressure of the cylinder. Based on cylinders that are currently in § 173.301. cylinders for use in hydrogen fluoride RSPA’s analysis of the currently These requirements include general service. authorized settings, a fully charged prefill requirements, maintenance and nonmetric-marked DOT–3 series gas Section 173.192 legibility of markings, PRD, valve cylinder at 130 °F operating temperature The title of this section would be protection, manifolding of cylinders and will likely release hazardous gases when revised to reflect that requirements are the charging of foreign cylinders. A the PRDs, conforming to the authorized applicable to Hazard Zone A gases. The derivation table showing the relocation tolerances on device function, are set restriction on aluminum cylinders by of the requirements appears in Part X of below test pressure. RSPA believes this highway and rail would be extended this preamble. creates a serious threat to safety by beyond arsine and phosphine to include Certain other changes would be made allowing an improper balance between all Hazard Zone A gases. Paragraph (c) to § 173.301. The cargo tank keeping the hazardous material in the would be amended to authorize manifolding requirements that are package and preventing the cylinder alternative leakage tests having an currently in § 173.301(d) would be from rupturing. In contrast, RSPA does equivalent level of sensitivity as the removed and placed with other cargo not believe this condition applies to current water bath leakage test, upon tank requirements in § 173.315. DOT–4 series cylinders because the Proposed paragraph (a)(6) would written approval from the Associate ratio of test pressure to service pressure prohibit the offering for transportation Administrator. Currently without is 2:1 as compared to 1.67:1 for DOT– and transportation in commerce of a exception, cylinders containing any 3 series cylinders. filled cylinder having a specified service amount of phosgene gas must be To correct this condition, RSPA is life after its service life has expired. subjected to a water bath leakage test proposing a PRD setting of 100% of the This requirement will ensure cylinders prior to offering them for transportation. marked test pressure for metric-marked that may be unsafe are removed from and nonmetric-marked DOT–3 series Section 173.198 service for transportation of hazardous cylinders. To allow users sufficient time An editorial change would be made to materials. to change their nonmetric-marked paragraph (a). Proposed paragraph (d) contains the cylinders to meet the new PRD setting general prohibition, that is currently requirement, RSPA is proposing that Section 173.226 contained in paragraph (a), against each cylinder be brought into Paragraph (a) would be revised to filling a cylinder with gases that are compliance at the first requalification of include only seamless specification capable of combining chemically with the cylinder after the effective date of cylinders conforming to all each other or with the cylinder material the final rule. requirements of § 173.40. Currently, so as to endanger its serviceability. This RSPA believes a setting of 100% of Division 6.1, Hazard Zone A materials provision would be expanded to test pressure for a PRD is a reasonable may be shipped in any DOT prohibit the use of DOT 3AL cylinders balance between keeping a gas in a specification cylinder except 8, 8AL and made of aluminum alloy 6351–T6 for cylinder and preventing a cylinder from 39. RSPA believes that this must be gases having pyrophoric properties. rupturing in the event of a fire or corrected in order to require these high Leaks of gases having pyrophoric overfill. PRDs designed to release at not hazard materials to be transported in properties, such as, silane, would cause less than test pressure will eliminate the cylinders with a higher level of safety. spontaneous flame and pose a possibility of gas release through the significant threat to the health and relief device at a temperature less than Section 173.227 safety. A transition period of six months or equal to 54 °C (130 °F). At the same Paragraph (a) would be revised to after the effective date of the final rule condition, test pressure, the factor of include only seamless and welded would be provided for cylinders filled safety for cylinder rupture is 1.6. As a specification cylinders conforming to prior to the specified date. result of discussions with gas shippers, the requirements of § 173.40. Proposed paragraph (f) contains PRD RSPA believes many major shippers of system and setting requirements. The DOT–3 series cylinders are currently Section 173.228 general purpose of a hazardous material setting PRDs at 90–100% of test Paragraph (a) would be amended to packaging is to prevent the pressure for toxic and flammable gases. include metric-marked specification unintentional release of a hazardous Because it is common practice for many cylinders and to require that cylinders material under normal conditions of shippers of DOT–3 series cylinders to used for bromine pentafluoride and transportation, including mishandling replace the PRD at the time of a 58470 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules cylinder’s requalification, RSPA factor of liquefied compressed gas,’’ § 173.304 limits the filling of a cylinder believes the proposal will result in ‘‘high pressure liquefied compressed with a liquefied compressed gas based minimal incremental cost. For most gas,’’ ‘‘low pressure liquefied on the maximum expected operating gases, RSPA believes the increased PRD compressed gas,’’ ‘‘permanent (non- temperature (130 °F) and the minimum setting will not significantly impact the liquefied compressed) gas,’’ ‘‘safety specific gravity of the liquid at 60 °F. performance of cylinders in bonfire factor,’’ and ‘‘settled pressure.’’ These The maximum filling densities for many tests. RSPA requests the following: proposed definitions, which are used in gases are prescribed in a table that 1. Data on the performance of PRDs ISO Standard 11622, will provide for would be retained in the HMR in set at test pressure in bonfire tests. harmonization with the international § 173.304a for nonmetric-marked 2. Comments on any gases or standards. cylinders. cylinders where a 100% of test pressure The current regulation defines a setting could prevent a cylinder from Sections 173.302–173.302b liquefied compressed gas to be partially passing a bonfire test. Current § 173.302 would be revised liquid at an operating temperature of 20 3. Comments on the need to requalify and proposed §§ 173.302a and 173.302b °C (68 °F) and authorizes a filling limit PRDs in a bonfire test. would be added. Proposed § 173.302 based on a wide range of critical Proposed paragraph (h) would contain prescribes the general requirements that temperatures. Therefore, the safety the cylinder valve protection would apply to filling a specification factor derived from filling limits is requirements that are currently in cylinder with a nonliquefied conservative for some gases and paragraph (g). These requirements (permanent) compressed gas. marginal for other gases. In addition, the would be revised to require a Proposed 173.302a prescribes current regulations limit the internal performance-oriented approach to valve requirements for filling a nonmetric- volume of a DOT–39 specification assembly protection. A six foot drop test marked cylinder with a nonliquefied cylinder to 75 cubic inches when used would be required to verify that each compressed gas, i.e., the current for liquefied petroleum gases. This cylinder valve (with or without requirements in § 173.302. In addition, requirement is revised to apply to all protection assembly) has sufficient RSPA proposes to remove the 5⁄6 filling liquefied flammable gases and appears strength to survive falls incidental to pressure limitation for DOT 3AL in proposed § 173.304a(a)(3). In handling in transportation. An cylinders in carbon monoxide service, proposed § 173.304b for metric-marked acceptable drop test result would be that in response to a CGA petition (P–1082). cylinders, filling limits are based on the no leakage occurs after the cylinder is CGA furnished information to support maximum operating temperature and dropped, although the cylinder may its conclusion that, although evidence filling factor. Instead of a maximum show damage. A similar drop test is shows that carbon monoxide can cause filling density table, the proposed filling currently required for all non-bulk stress corrosion cracking in steel limits are based on a filling factor which performance-oriented packagings to cylinders, there is no evidence that is directly related to the critical ensure that the packages can withstand carbon monoxide causes corrosion temperature of the liquefied compressed normal conditions of transportation. cracking or carbonyl formation in gas. The proposed filling limits are RSPA believes that cylinders should be aluminum cylinders. applicable to all liquefied compressed held to at least the same level of Proposed § 173.302b prescribes gases. Under the proposed filling limits, performance as drums and fiberboard requirements for filling a metric-marked the filling factor is defined based on the boxes. A period of five years is proposed cylinder with permanent gas. Because a critical temperature and the operating in paragraph (h)(1)(i) to provide a metric-marked cylinder is stamped with condition of each individual gas. smooth transition to meet this the test pressure in bar, the fill pressure Therefore, the proposal enhances the performance requirement. is calculated from the marked test level of safety and allows the gas Proposed paragraph (k) would be pressure. The charge pressure for a industry to fill the cylinders with more added to permit foreign cylinders to be metric-marked cylinder is 2⁄3 of the test product. imported into the United States and pressure for seamless DOT 3M, 3FM and Section 173.334 transported within a single port area 3ALM cylinders, and 1⁄2 of the test subject to certain conditions. pressure for welded DOT 4M cylinders. This section would be amended to Proposed paragraph(m) would be The NPRM proposes a uniform standard include metric-marked specification added to prohibit cylinder attachments which reduces the possibility of cylinders. with sharp features that may cause overfilling and allows the gas industry Section 173.336 damage to other freight. This new to ship an additional 1.5% gas. Because provision is in response to NTSB the NPRM proposes that the cylinder be This section would be amended to Recommendation I–92–001 with respect marked and charged in accordance with include metric-marked specification to cylinders. Attachments for other ISO Standard 11622, it would facilitate cylinders. hazardous material packaging types will shipments of hazardous material in DOT Section 173.337 be addressed in a separate rulemaking specification cylinders internationally. action. This section would be amended to Proposed § 173.301a would contain Section 173.304–173.304b include metric-marked specification the current requirements pertaining to Current § 173.304 would be revised cylinders. the pressure in a nonmetric-marked and proposed §§ 173.304a and 173.304b Part 177 cylinder at 70 °F and 130 °F. It would would be added. Proposed § 173.304 also contain a grandfather provision that prescribes general requirements that § 177.840 Class 2 (Gases) Materials is currently in § 173.34(b). would apply to filling a specification RSPA proposes to revise paragraph Proposed § 173.301b contains cylinder with a liquefied gas. (a)(1) to allow horizontal loading of additional general requirements for Proposed § 173.304a prescribes cylinders containing Class 2.2 materials. metric-marked cylinders used for specific requirements for filling a In addition, the horizontal loading of nonliquefied (permanent) gases. nonmetric-marked cylinder with a Class 2.1 and Class 2.3 materials would Definitions would be added for ‘‘critical liquefied gas, i.e., the requirements that be permitted for cylinders designed so temperature,’’ ‘‘dissolved gas,’’ ‘‘filling are currently in § 173.304. Currently, that the inlet to the PRD is located in the Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58471 vapor space and provided that the metric-marked cylinders will be regulations and reduces the likelihood cylinders are properly secured during centrally located, and will allow the of inconsistent requirements in the transportation. simplification and streamlining of the specifications. The requirement that This paragraph also would require the individual cylinder specifications new metric-marked cylinders have cycle use of cylinder restraint systems to proposed in §§ 178.71, 178.72, 178.73 testing performed during design reduce the likelihood of the cylinders and 178.81. qualification incorporates current being ejected from the vehicle in event Paragraph (b) will define common industry practice. RSPA believes that of an accident. This proposal is based terms for clarity and consistency. The the cycle test is an important design on a NTSB Recommendation I–90–008, addition of the new definition for performance test that assesses cylinder that urges RSPA to require hazardous ‘‘volumetric expansion test’’ will clarify fatigue life and, therefore also, proposes materials packages to be secured with RSPA’s meaning of the many terms used this requirement for welded cylinders. adequate cargo restraint systems to by industry to describe pressure testing. Paragraph (i)(12) contains prevent their ejection from the vehicle Paragraph (c) specifies the requirements for ultrasonic examination during transportation. NTSB made the requirements for inspection and (UT); a non-destructive test method recommendation following an accident analyses. RSPA proposes that all DOT 4- designed to detect surface and in Collier County, Florida that involved series metric-marked cylinders have subsurface flaws and to measure the a number of cylinders, containing a inspection and analyses performed by thickness of a cylinder and the size of poisonous by inhalation gas, being an independent inspection agency. a flaw or crack. The UT equipment has ejected from an overturned tractor- In paragraph (e), duties of the the capability to detect the presence of inspector, RSPA proposes a change to flatbed semitrailer. Considering the discontinuities on or even within the allow the inspector to obtain a certified wide variation in cylinder sizes, and the cylinder sidewall, shoulder, or bottom. cast or heat analysis from the cylinder various types of restraints that would be UT would be required for all seamless manufacturer in addition to the material required, RSPA solicits information on and some welded metric-marked producer or supplier, as needed. The anticipated safety benefits and the costs cylinders at the time of manufacture. current regulations require the inspector of requiring the use of restraint systems, to verify that the material of Paragraph (k) prescribes marking particularly on small businesses. construction meets the requirements of requirements. A significant change for Part 178 the applicable specification by either the new metric-marked cylinders is marking with the test pressure, rather Section 178.46 making a chemical analysis of each heat of material; obtaining a certified than service pressure, expressed in bar. As discussed in Part IX of this chemical analysis from the material To communicate vital information to preamble, the tables in paragraph (b)(4) manufacturer for each heat of material; requalifiers, metric-marked cylinders would be revised to remove aluminum or by making a check analysis of a that require UT examination during alloy 6351 as an authorized material for sample from each coil, sheet, or tube if requalification must be marked ‘‘UT’’ as the manufacture of DOT 3AL seamless an analysis is not provided by the well as with the minimum wall cylinders. In addition, in Table 1, material manufacturer for each heat of thickness. Other markings, such as several changes would be made to the material. These alternative methods for country of origin, will be required for chemical composition limits for 6061 verifying compliance are something metric-marked cylinders; thereby alloy for consistency with limits stated raised by independent inspectors to making them more acceptable for in The Aluminum Association require cylinder manufacturers to transportation of hazardous materials in Standards and Data, 1993 edition. The perform check analyses when readily international commerce. Si maximum that is currently stated as available information may be used. The Paragraph (l) includes a prohibition 0.80% would be revised to read 0.8%, proposed regulation would allow on coatings that may interfere with the Fe maximum that is currently stated cylinder manufacturers to use analyses inspections and tests, or that allow as 0.70% would be revised to read obtained from the mill to verify the moisture to accumulate between the 0.7%, the Mg minimum that is currently material conforms to standards for the cylinder wall and the coating. This stated as 0.80% would be revised to cylinder specification. provision is RSPA’s response to read 0.8%, and the Mg maximum that Paragraph (f) specifies performance- potential threats to safety associated is currently stated as 1.20% would be oriented requirements for threads. These with coating materials, such as vinyl, revised to read 1.2%. Finally, Table 1 requirements would allow the which promote corrosion. limits the chemical composition of Pb manufacturer to design the threads in Section 178.70 (lead) and Bi(bismuth) to 0.01. RSPA conformance with any appropriate proposes to change these limits to 0.005. standard as long as certain thread shear This proposed section groups the strength limits are met. common requirements that apply to all Section 178.69 Paragraphs (h) and (i) list all tests that DOT 3 series metric-marked seamless This new proposed section contains apply to metric-marked cylinders. A cylinders (DOT 3M, DOT 3ALM, and general design and manufacturing new approach for the metric-marked DOT 3FM). requirements applicable to all metric- cylinders is the categorization of design Paragraph (c) specifies materials for 3 marked DOT specification cylinders. qualification tests (paragraph (h) in series cylinders. Authorized materials This proposed section contains much of addition to production tests in are located in Appendix A, Table 1 for the same information as the current paragraph (i)). These paragraphs include steel and nickel and Table 2 for § 178.35, including compliance, criteria for each test as well as aluminum. The steel compositions inspection and analyses, duties of acceptance criteria. The individual authorized include two carbon inspector, PRDs, and markings; cylinder specifications prescribe which manganese type, one chrome moly type however, proposed § 178.69 is extended tests in § 178.69 apply to each steel, and one stainless steel type. The to address definitions, authorized specification, as well as any unique test aluminum composition is a 6061 alloy. material, threads, and tests. Thus, requirements or acceptable results. These compositions are broad enough to § 178.69 would simplify the regulations Centralizing all test information in one cover most material specifications in that all information common to location reduces repetition in the currently in use. 58472 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Paragraph (e) specifies wall thickness the current DOT 4B, 4BA, 4BW, Section 180.207 requirements. The current DOT 3AAX 4B240ET, 4E, 4D, 4DA, 4DS and This section prescribes requirements requirement in § 178.37(a)(2)(i) that 4AA480 specifications. The maximum for the periodic requalification of adresses additional design loads due to design test pressure is 140 bar (2030 metric-marked specification cylinders. bending is proposed in this general psi). This represents a pressure of more Proposed Table I specifies the periodic section for all DOT 3-series metric- than double what is currently requalification requirements. The marked cylinders. The inclusion of this authorized for welded cylinders, except standard requalification period is once requirement sets a precedent in the the DOT 4DA and 4DS specification, every five years, with extended HMR by allowing manufacturers the which have a maximum test pressure of requalification periods provided for 1800 psi. Authorized materials would flexibility to adapt any metric-marked cylinders used exclusively to transport include aluminum alloy 5154 currently cylinder specification to a ‘‘tube trailer’’ certain gases. For example, when used used for the DOT 4E specification type cylinder. exclusively for noncorrosive, nontoxic cylinder, as well as carbon, HSLA, (LC50 of not less than 5000 ppm) gases, Section 178.71 stainless, and 4130X steels. For DOT 4M DOT 3M, 3ALM, and 3FM specification This section proposes the new DOT specification cylinders with a test cylinders must be requalified at least 3M metric-marked cylinder pressure of 70 bar or more, the welds once every ten years. Similarly, a DOT specification. This specification must be 100% radiographed to provide 4M specification cylinder must be combines aspects of the current DOT assurance of the joint quality. requalified at least once every 15 years. 3A, 3AX, 3AA, 3AAX, 3B, and 3BN Manufacturers of DOT 4M specification DOT 3M and 4M specification cylinders specifications. cylinders would have the option of Proposed paragraph (c) authorizes performing an ultrasonic examination in used exclusively as fire extinguishers construction using steel, stainless steel, lieu of the radiographic examination. and meeting the limitation of special and nickel. The carbon manganese RSPA solicits comments on the need provision 18 must be requalified at least composition authorized encompasses for a higher performance welded once every twelve years, as currently the steel currently used for DOT 3A cylinder specification than what is required for nonmetric-marked DOT specification cylinders. The inclusion of proposed in this NPRM. Comments are specification cylinders used as fire the stainless steel composition for a also requested as to whether such a extinguishers. seamless cylinder will eliminate the higher performance specification should All DOT 3M, 3ALM, 3FM and 4M need for many exemptions. be distinguished from the lower specification cylinders must be performance by pressure, or by material requalified using the ultrasonic Section 178.72 strength, or some other performance examination, instead of a volumetric This section proposes the new DOT standard. RSPA is currently considering expansion test. A DOT 4M specification 3ALM metric cylinder specification. a cylinder specification with a design cylinder, with a marked test pressure of This specification is very similar to the test pressure of either more than 140 bar 70 bar or less and having a tensile current DOT 3AL except that aluminum (2030 psi) or with an ultimate tensile strength less than 830 Kpa (120,000 psi), alloy 6351 is not authorized as a strength of 830 Mpa (121,000 psi) or may be subjected to a volumetric material of construction. higher. expansion test in lieu of an ultrasonic examination. Ultrasonic examination Section 178.73 Part 180 improves safety by automating the This section proposes the new DOT Part 180, Subpart C identification and measurement of wall 3FM metric-marked cylinder This new subpart would prescribe thickness, pitting and cracking. It specification. The proposed DOT 3FM requirements for the continuing improves the probability of detection for cylinder is designed to a high stress qualification, maintenance, repair and internal pits and cracks over current level similar to the DOT 3T, and rebuilding of DOT specification and internal visual inspection. Ultrasonic incorporates the strong structural exemption cylinders. Most of the examination also reduces inspection integrity of the DOT 3AA cylinder. This requirements are currently contained in and labor costs, cleaning costs and specification meets many of the §§ 173.34 and 173.301. Readers should waste water by allowing cylinder requirements of the ISO Standard 9809– refer to the references under Part X of requalification without removing the 2 cylinder, which should make it this preamble for the citation of the valve and purging the cylinder’s readily acceptable in international corresponding provision that is similar contents, and without the deliberate commerce. The authorized materials of to the current provision contained in the introduction of water into the cylinder. construction are Grade B, a chrome HMR. The proposed requirements Comments are invited on the molybdenum type steel currently include DOT metric-marked cylinders. proposed requirements for ultrasonic authorized for 3T cylinders and Grade E examination of cylinders. RSPA also a new chrome molybdenum type steel. Section 180.203 solicits information on industry Steels such as Grade E with higher This section contains definitions for practices in this area, the costs and ultimate strength levels (above 115,000 terms used throughout Subpart C. Some benefits for using UT examinations and psi) are currently authorized under of these definitions are ‘‘commercially the pass/fail criteria in Table II. exemption. Because the most critical free of corrosive components,’’ Section 180.209 failure mode is cracking, these cylinders ‘‘condemn,’’ ‘‘defect,’’ ‘‘rejected will be subjected to UT examination at cylinder,’’ and ‘‘volumetric expansion This section prescribes requirements the time of manufacture and test.’’ that are currently contained in requalification. § 173.34(e) for the periodic Section 180.205 requalification of nonmetric-marked Section 178.81 This section prescribes general specification cylinders. The current rule This section contains specific requirements for the continuing for the requalification of most DOT requirements for the proposed DOT 4M qualification and use of cylinders and specification and exemption cylinders metric-marked cylinder specification. for each person performing a cylinder requires a volumetric expansion test, This specification combines aspects of requalification function. external and internal visual inspections Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58473 which are not suitable for detecting a should not be authorized for application B. Regulatory Flexibility Impact buried or internal crack. of requalification markings. Currently, General In proposed paragraph (a)(1), note 2 after a cylinder passes the following the table requires detection requalification volumetric expansion The Regulatory Flexibility Act (5 and measurement of the sidewall cracks test, internal and external visual U.S.C. 601 et seq.) requires an agency to in DOT 3T and 3HT cylinders at each examinations, etc., the RIN holder review regulations to assess their impact on small entities unless the agency requalification period by an approved stamps the month and year of the test determines that a rule is not expected to non-destructive test (NDT) method. and its RIN on the cylinder. This Cracks in these cylinders can be have a significant economic impact on marking is normally accomplished with detected by using a suitable NDT a substantial number of small entities. steel stamps. However, RSPA has method, such as acoustic emissions or RSPA is unable, at this time, to certify appropriate shear wave ultrasonic granted exemptions, such as E–11372, that this proposed rule will not have a examination. Because the ultimate authorizing certain fire extinguishers significant impact on a substantial tensile strength (UTS) of DOT 3T and and fiber-wrapped cylinders to display number of small entities. RSPA has 3HT cylinders are above 7,900 Mpa the requalification markings using performed an Initial Regulatory (155,000 psi), crack growth due to stress labels. RSPA is considering whether to Flexibility Analysis (IRFA) of this corrosion and fatigue can occur during incorporate new marking methods for proposed rule’s potential impact on normal service. An undetected crack DOT specification cylinders following small entities, and the assessment has can grow to a critical size and result in the requalification process. been placed into the public docket for a catastrophic failure. Manufacturers of RSPA requests comments on the this rulemaking. Written public specificition DOT 3T and other high feasibility, costs and benefits of comments that clarify the degree of potential impacts on affected small strength exemption cylinders are alternative marking methods, and entities are requested. required to perform UT examinations at whether affected persons believe there the time of manufacture. is justification for RSPA to adopt IRFA Summary Proposed paragraph (a)(2) allows for alternative methods. nonmetric-marked specification The Regulatory Flexibility Act is cylinders to be ultrasonically examined Section 180.215 concerned with identifying the as an alternative requalification method. economic impact of regulatory actions An external visual inspection is This section contains the reporting on small businesses and other small required to be conducted in conjunction and record retention requirements entities. Unless alternative definitions with the UT examination. The currently prescribed in § 173.34(e)(8), have been established by the agency in requalification period for nonmetric- with certain revisions. consultation with the Small Business marked cylinders is the same as Administration, the definition of ‘‘small The retester authorization record business’’ has the same meaning as required in Table I of this proposed requirements in current § 173.34(e)(8)(i) section. under the Small Business Act. As RSPA would be revised to include all cylinder has established no special definition, Section 180.211 requalifiers who inspect, test, repair, or the agency employs thresholds rebuild cylinders. In addition, proposed This section prescribes repair, rebuild published under criteria in 13 CFR and heat treatment requirements paragraph (d)(1) requires that records 121.101, e.g., 500 employees for currently prescribed in §§ 173.34(g) thru covering any work involving welding or cylinder manufacturers (SIC 3443— 173.34(l), with certain revisions. These brazing repairs, or the building or reheat Fabricated Plate Work (Boiler Shops) requirements are standardized and treatment of cylinders must be retained and SIC 3462 Iron and Steel Forgings). simplified. by the cylinder requalifier for 15 years. Need for the proposed rule. As The requalifier would be required to indicated throughout the preamble to Section 180.213 retain inspection and test records until this proposed rule, current requirements This section contains marking expiration of the inspection or for the manufacture, use, and requirements presently contained in requalification period or until the requalification of cylinders can be § 173.34(e)(7), with certain revisions. cylinder is again requalified, whichever traced to standards first applied in the A new requirement for all occurs first. Records of any welding or early 1900’s. The regulations were specification cylinders would be added brazing repair, rebuilding or reheat subsequently revised in a piecemeal to identify the type of inspection, test, treatment would be required to be fashion, with adjustments being made to address particular situations and or work performed on a cylinder. This retained for 15 years. new requirement would enable problems on a case-by-case basis. This shippers, carriers, and enforcement XII. Regulatory Analyses and Notices notice represents RSPA’s first personnel to readily determine the type comprehensive review of requirements A. Executive Order 12866 and DOT and date of each inspection or test, or pertaining to the transportation of whether any repair or rebuilding work Regulatory Policies and Procedures compressed gases in cylinders and has been performed on a cylinder. This proposed rule is considered a spheres. This action is being taken to: The methods for marking cylinders significant regulatory action under (1) Simplify requirements for the would permit stamping, engraving, production of new cylinders, (2) provide section 3(f) of Executive Order 12866 scribing or any other method approved flexibility in the design, construction and was reviewed by the Office of in writing by the Associate processes and permitted use of Management and Budget. The rule is Administrator for HMS. In response to cylinders, (3) adopt advanced a NPGA petition, RSPA also proposes considered significant under the technological processes and procedures allowing use of pressure sensitive labels Regulatory Policies and Procedures of for cylinder manufacturing and to display the requalification markings the Department of Transportation (44 FR requalification, (4) achieve an increased on fire extinguishers. However, RSPA is 11034) because of public interest. A level of safety through simplification of also soliciting comments on whether preliminary regulatory evaluation is the rules and regulations, (5) reduce the there are any methods that should or available for review in the docket. need to issue, and renew, exemptions 58474 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules that permit variances from detailed of the primary initiators of petitions for the company’s product line. Knowing specifications concerning materials of rulemaking to revise the HMR for the importance of specification DOT–3 construction, design, and manufacturing greater consistency with regulations of and DOT–4 series cylinders to the processes, and (6) facilitate international the world’s leading industrial nations. It viability of these small entities, is commerce in the transportation of is RSPA’s understanding that all CGA critical to RSPA’s determination of compressed gases. members support proposed revisions whether this rule may have a significant Objectives and legal basis for the contained in the CGA petitions. economic impact on a substantial proposed rule. The intended effect of However, that leaves another twenty- number of small manufacturing this action is to reduce threats to health, one (21) non-CGA-member cylinder companies. Small entities are, therefore, safety and property in the transportation manufacturers, of which RSPA assumes specifically invited to provide of hazardous materials, particularly at least 90% (approximately nineteen comments on the economic impact of flammable, toxic and other compressed (19)) meet the SBA criterion for a small the proposed rule on their overall gases. Federal hazardous materials business, that would be affected by the operations. transportation law (49 U.S.C. 5101 et proposed rule. 2. In addition to cylinder seq.) directs the Secretary of Some small entities may experience manufacturers, there are approximately Transportation to prescribe regulations an adverse economic impact attributed 1,400 businesses currently engaged in for the safe transportation of hazardous to the proposed rule’s prohibition on the the periodic requalification of high- materials in intrastate, interstate and manufacture of non-metric-marked pressure cylinders. Here, also, RSPA foreign commerce. Section 5103(b) specification DOT–3 and DOT–4 series conservatively estimates that at least 90 specifies that the regulations shall apply cylinders after a future date (five years percent of these requalifiers are small to persons transporting hazardous from the effective date of a final rule). businesses. This number includes materials in commerce; causing Prior to that date, small entities would, businesses that manage large fleets of hazardous materials to be transported in at their own discretion, be permitted to cylinders, such as cylinders charged commerce; or manufacturing, manufacture (1) non-metric-marked with propane to power forklift trucks, fabricating, marking, maintaining, cylinders only, (2) metric-marked and for use by retail customers through reconditioning, repairing, or testing a cylinders only, or (3) a combination of cylinder exchange programs. Still other packaging or container that is non-metric-marked cylinders and companies, generally thought to fall represented, marked, certified, or sold metric-marked cylinders. However, after within SIC 7389 (business services, not by such persons as qualified for use in the phase-out date, these small entities elsewhere classified), manage fleets of transporting hazardous material in may manufacture DOT–3 and DOT–4 cylinders used in (1) carbon dioxide commerce. cylinders conforming to metric-marked service for carbonated soft drinks, (2) Identification of potentially affected specifications only. fire extinguisher service, and (3) small entities. 1. Businesses likely to be RSPA anticipates that, upon review of compressed air/oxygen breathing most affected by this proposed rule are these proposed requirements, some equipment used in recreational diving manufacturers of specification DOT–3 small entities currently producing operations, as well as by emergency and DOT–4 series cylinders (SIC 3443 specification DOT–3 or DOT–4 series services personnel, like firefighters. All and SIC 3462). Currently, RSPA cylinders may determine that it is not of these businesses are currently estimates there are 40 manufacturers of economically feasible to continue this approved to requalify cylinders through specification DOT–3 and DOT–4 series line of products. For example, RSPA performance of the hydrostatic pressure cylinders. Of that number, estimates the average annual cost of the test. approximately 29 are ‘‘small proposed requirement for an The proposed rule would require each businesses’’ under the Small Business independent inspection agency to business to determine whether it Act. observe cylinder manufacturing should: (1) upgrade test equipment from In the case of approximately eleven operations and processes at $59,286 per the hydrostatic type to ultrasonic (11) manufacturers (five (5) of whom are facility. However, that average is examination type to be able to service small businesses) of high-pressure calculated on the basis of a wide range the older DOT specification cylinders (specification DOT–3 series) cylinders of costs for individual facilities that and the new metric-marked cylinders, there should be little or no burden produce specification DOT–4 series or (2) continue to maintain its currently attributed to requirements contained in cylinders (e.g., $5,000 for an occasional installed hydrostatic test equipment and this proposed rule, as many of these production run to $100,000 for a service only the older DOT specification new processes and technological manufacturer that operates a dedicated cylinders (estimated to now number 300 innovations have already been adopted line). For manufacturers that produce a million, a majority of which may be as part of their own quality management relatively large volume of these expected to remain in service well into program. cylinders the CGA estimates the the next century) and the proposed In addition to the above, there are additional cost of manufacturing DOT–4M metric-marked cylinder that another twenty-nine (29) cylinder attributed to this provision will be an have a marked test pressure of ≤70 bar. manufacturers (twenty-four (24) of additional 10¢ per cylinder. For a RSPA anticipates that some small whom are small businesses) identified completed 20-pound propane cylinder entities currently performing in RSPA’s database of registered that currently sells for approximately requalification functions by the markings for packaging manufacturers, $25 (retail price), RSPA expects that the hydrostatic pressure test method may and/or holders of exemptions that added expense would not be determine that investments in new authorize the manufacture, marking, prohibitively costly to the manufacturer ultrasonic test equipment (requiring an and sale of cylinders that do not fully or to the ultimate consumer. investment currently estimated at $50- conform to specifications for the DOT– RSPA understands that the $80 thousand amortized over a period of 3 and DOT–4 series. Eight (8) of these production of specification DOT–3 and ten (10) years) may not be economically cylinder manufacturers (including five DOT–4 cylinders by some feasible, considering the comparatively (5) that meet the criterion of a small manufacturers that are small businesses small number of metric-marked business) are members of the oftentimes is but one of a wide-range of cylinders (vs. the current size of the Compressed Gas Association (CGA), one pressure vessels, or other products, in domestic fleet of approximately 300 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58475 million cylinders) that will be produced with a wider range of compressed gases currently required) on each cylinder beginning perhaps as early as 1999, and and other materials, and, in many cases, requalified by the visual inspection first requiring periodic requalification in the period between periodic method, there is no additional 2004. Currently, five (5) of the eighteen requalification will be extended by regulatory burden associated with this (18) retester facilities currently several years, thereby resulting in cost proposal. performing requalification of cylinders savings attributed to less frequent While the actual number of facilities by ultrasonic examination, rather than inspections. For example, in the case of currently operating under the exception by hydrostatic pressure testing, under a specification DOT–3AL aluminum provided by § 173.34(e)(13) is unknown, terms of special exemptions issued by cylinder, the 5 year retest cycle would RSPA assumes, on the basis of data RSPA are thought to meet the criterion be extended to 10 years for the compiled by the Bureau of the Census, for a small business. specification DOT–3ALM. In time, there that the actual number is not more than Although the ultrasonic examination may be as many as 1 million such 6,691, of which 5,651 are retail dealers method initially involves a large capital cylinders in carbon dioxide service for of bottled liquefied petroleum gases (SIC investment, it offers cost savings for the carbonated beverage industry alone. Code 5984), 968 are merchant businesses that own and/or use A single retest of this fleet of cylinders wholesalers of industrial gases, except cylinders for the transportation of over a ten-year period vs. the current liquefied petroleum gases (SIC Code compressed gases. In addition, five-year period, at an average cost of 5169), and 72 are entities identified as ultrasonic examination provides (1) $10 per cylinder, i.e., $10 million, EPA-approved reclaimers of refrigerant substantial benefits for increased safety, would result in aggregate savings to the gases. (2) opportunities for reducing emissions cylinder owners of $1 million per year. On a per facility basis, RSPA of hazardous materials to the In the very competitive soft-drink estimates the cost of this reporting and environment, and (3) reduced industry, RSPA believes that the cost recordkeeping requirement would be contamination of cylinders. savings would be shared broadly. $122.50 per five-year cycle. This Commenters are specifically invited To the extent that RSPA has failed to estimate was calculated on the basis of to provide additional information with recognize potential impacts on the cost data submitted by RSPA to the respect to this proposed requirement for general universe of small entities that Office of Management and Budget in ultrasonic testing of metric-marked own or use cylinders, commenters are support of an approval issued by OMB cylinders and its potential impact on invited to identify those impacts and the (2137–0022) concerning Testing, small entities. RSPA requests comments magnitude of their affect on small Inspection and Marking Requirements from affected small entities regarding entities. for Cylinders. RSPA does not see this the potential adverse impact this Reporting and recordkeeping proposed regulatory requirement as proposed rule may have on their requirements. This proposed rule inhibiting the ability of currently cylinder requalification operations contains one new requirement for excepted retesters to continue to specifically, and the overall viability of reporting and recordkeeping. provide this cylinder requalification their enterprise should they determine it Specifically, persons who requalify service to an extent that it threatens the would be economically prohibitive to cylinders by a visual inspection, as viability of their primary business, i.e., continue to perform cylinder currently authorized by § 173.34(e)(13), the sale of compressed gases in requalification services. would, under proposed § 180.209(g), be relatively small units. RSPA specifically 3. Finally, there are literally hundreds required to first obtain a requalification invites commenters to provide data that of thousands of commercial identification number (RIN) from supports or refutes this estimate of the establishments that own and use RSPA’s Associate Administrator for costs of compliance with the new cylinders manufactured to Hazardous Materials Safety under requirement to obtain a retester specifications in the DOT–3 and DOT– provisions of proposed § 107.805. (requalification) identification number 4 series. Those business sectors include Essential elements of the application for and its impact on small businesses agriculture; mining; construction; approval include: (1) the name and currently authorized to perform this manufacturing; transportation, address of the facility manager, (2) requalification function without first communications, electric, gas and identification of the DOT specification/ having to obtain an approval from the sanitary services; wholesale trade; retail exemption cylinders that will be Associate Administrator for Hazardous trade; services; and many other inspected at the facility, and (3) a signed Materials Safety. nonclassifiable establishments. On the and dated certification by the applicant Related Federal rules and regulations. basis of a Small Business that the facility will operate in With respect to the production, Administration estimate that of the 24 compliance with applicable permitted use, and periodic million businesses located in the U.S. requirements of the HMR, and that the requalification of cylinders used in the only 15,000 (.000625%) are large firms, hazmat employees performing transportation in commerce of RSPA concedes it is likely that over inspections have been properly trained, compressed gases, there are no related 99% of the businesses that make use of to include familiarization with the rules and regulations issued by other compressed gases in DOT specification appropriate CGA C–6 series pamphlets departments or agencies of the Federal cylinders are small businesses. (Source: concerning the conduct of visual government. SBA Office of Advocacy, Small Business inspections. Alternate proposals for small Answer Card 1998). An approval, if issued by the businesses. The Regulatory Flexibility RSPA believes the proposed rules will Associate Administrator for Hazardous Act directs agencies to establish generally have a small individual, Materials Safety, would be effective for exceptions and differing compliance though significant in the aggregate (i.e., a maximum of five years, at which time standards, when possible, for small $10 million annually), positive benefit the approval holder would have to file business, while still meeting objectives for all of these businesses by making the a new application for approval. Other of the applicable regulatory statutes. In metric-marked cylinders they buy or than the requirements for having to file the case of manufacture, use, inspection, lease acceptable for trade and use in an application for approval, and testing, retesting and requalification of worldwide commerce. In addition, those entering the four-digit RIN (in addition DOT specification cylinders in cylinders will be allowed to be charged to the month, year and letter ‘‘E’’ compressed gas service, RSPA believes 58476 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules that it is not possible to establish such Section 610 Review section and changing the organizational differing standards and still accomplish Pursuant to section 610 of the structure of the cylinder regulations. the objectives of Federal hazardous Regulatory Flexibility Act (5 U.S.C. RSPA also recognizes that market materials transportation law (49 U.S.C. § 610), RSPA has conducted a review of conditions have changed dramatically 5101–5127). RSPA further believes that current requirements for the since many of the existing rules were the discussion in this NPRM as to the manufacture, use, and requalification of first adopted. Today, cylinders are need for regulatory action, issues raised cylinders. The purpose of this review manufactured, used, and transported to, by many of the affected parties through was to identify regulations that have a from, and between entities in the global petitions for rulemaking, applications significant economic impact on a marketplace. In recognition of that for exemption, and otherwise, substantial number of small entities and worldwide sale and distribution of effectively requires RSPA to apply one to revise those regulations, where compressed gases in cylinders, RSPA is set of requirements applicable to small appropriate. In proposing revisions to proposing to revise the HMR in a and large businesses alike. the existing regulations, RSPA has manner that is harmonious with attempted to minimize the economic international standards (e.g., metric- While certain regulatory actions may marked cylinders). affect the competitive situation of an impact on small business entities. It has RSPA is confident that the proposed industry by imposing relatively greater done this, in part, by proposing to reduce from fifteen to four the number rule and existing cylinder regulations do burdens on small-scale than on large- not duplicate or conflict with other scale enterprises, RSPA does not believe of authorized DOT–3 and DOT–4 series cylinder specifications, allowing greater Federal rules. In addition, conflicts with that this will be the case with the state or local regulations are expressly proposed rule. The principal types of fill limits for metric-marked cylinders, and extending the time between provided for in Federal hazardous compliance expenditure effectively materials transportation law (49 U.S.C. required by the proposed rule would be periodic requalification of metric- marked cylinders. Also, small business, § 5125). Under this statutory authority, imposed on each cylinder represented RSPA issues preemption determinations through its specification markings as such as boiler shops (SIC 3443), iron and steel forging shops (SIC 3462), as to whether a State, political conforming to a DOT specification, merchant wholesalers of industrial subdivision, or Indian tribe regulation whether manufactured by, used by, or gases, except liquefied petroleum gas or law, governing the transportation of serviced by a large or a small business. (LPG) (SIC 5169), retail dealers of LPG hazardous materials, is preempted There are administrative efficiency (SIC 5984), and business services, not under Federal law (see 49 C.F.R. Part advantages, and economies of scale, elsewhere classified (SIC 7389), will 107, Subpart C). available to a large firm, but the benefit from the greater safety provided C. Executive Orders 12612 and 13084 requirements considered in this by this proposed rule. RSPA encourages rulemaking are intended to assure a small entities to comment on the This proposed rule has been analyzed minimum level of safety for packagings economic impact of proposals contained in accordance with the principles and used to contain hazardous materials that in this NPRM. criteria contained in Executive Orders pose high-order risks in transportation. First, RSPA examined whether there 12612 (‘‘Federalism’’) and 13084 Thus, no provisions may be waived is a continuing need for its cylinder (‘‘Consultation and Coordination with simply on the basis that they would be regulations. Based on the various Indian Tribal Governments’’). Because burdensome to a small business. characteristics of compressed gases (e.g., this proposed regulation would have no At the same time, RSPA notes that the flammability and toxicity) and the substantial direct effect on the States or proposed rules were developed under associated risks that are involved in the the relationship, or the distribution of the assumption that small businesses transportation of gases, RSPA recognizes power and responsibilities, between the comprise an overwhelming majority of that there is a continuing need for its Federal Government and the States, entities that would be compelled to cylinder regulations. However, as RSPA has determined that this rule does comply, particularly regarding discussed previously in this preamble, not have sufficient federalism implications to warrant preparation of a permitted use of cylinders and their RSPA is in receipt of numerous Federalism Assessment. Because this periodic requalification for continued petitions for rulemaking concerning the rule would not significantly or uniquely use. For that reason, in its development cylinder regulations. Many of these affect the communities of the Indian of the proposed rules, RSPA considered petitions propose that RSPA incorporate tribal governments, the funding and each requirement and determined this accepted industry practices and new technology (e.g., new marking methods). consultation requirements of Executive set represents the minimal requirements Order 13084 do not apply. necessary for it to be able to assure an RSPA has accepted many of these Federal hazardous material adequate level of safety in petitions and is proposing to transportation law contains express transportation. incorporate new technology where the new technology achieves an equivalent preemption provisions at 49 U.S.C. 5125 For example, as an accommodation to or higher level of safety (e.g., ultrasonic that preempt State, local, and Indian small businesses, RSPA proposes to (1) testing). RSPA also reviewed tribe requirements if—— permit facilities to continue to use their exemptions issued under 49 CFR Part (1) Complying with a requirement of currently installed hydrostatic pressure 107 and has incorporated those the State, political subdivision, or test equipment to retest non-metric exemption provisions that have Indian tribe and Federal hazardous marked specification cylinders, millions achieved a proven safety record. material transportation law or of which have been in service for In addition to the above, over the regulations is not possible; several decades and may be expected to years, the regulated community has (2) The requirement of the State, continue in service for many more requested that RSPA reduce the political subdivision, or Indian tribe, as decades, and (2) permit the complexity of its cylinder regulations. applied or enforced, is an obstacle to requalification of certain metric-marked RSPA addressed these concerns by accomplishing and carrying out Federal cylinders, i.e., specification DOT–4M modifying the language used in the hazardous material transportation law with a marked test pressure ≤70 bar. proposed rule, including a definition or regulations; or Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58477

(3) The requirement of the State, E. Paperwork Reduction Act The estimates contained in this political subdivision, or Indian tribe Under regulations implementing the proposed rule address only the cylinder concerns any of the following ‘‘covered Paperwork Reduction Act of 1995, ‘‘ provisions. subjects’’ and is not substantially the ** * an agency may not conduct or Because this proposed rule would same as a provision of Federal sponsor, and a person is not required to establish certain new cylinder hazardous material transportation law respond to a collection of information specifications, broaden the approval or regulations: unless it displays a valid OMB control requirements for affected persons who (A) The designation, description, and number.’’ 5 CFR 1320.8(b)(iii)(6). requalify cylinders, and would relocate classification of hazardous material; The information collection and the cylinder requalification (B) The packing, repacking, handling, recordkeeping requirements in current requirements to other sections, revisions labeling, marking, and placarding of §§ 173.34, 173.302(c) and 178.35 would be made to the current burden hazardous material; pertaining to records prepared by hour submission. RSPA has revised the (C) The preparation, execution, and persons performing the requalification, burden estimates based on the proposal use of shipping documents related to repair, rebuild and use of cylinders and in this NPRM and will submit revised hazardous material and requirements requirements in current § 173.34 burden estimates to OMB. related to the number, contents, and pertaining to persons seeking approval placement of those documents; OMB Control Number 2137–0022 to requalify cylinders, were approved by (D) The written notification, Affected Public: Cylinder requalifiers, recording, and reporting of the the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. repairers and rebuilders, and owners of unintentional release in transportation certain DOT specification and of hazardous material; and chapter 35 and assigned control number 2137–0022, with an expiration date of exemption cylinders. (E) The design, manufacture, Annual Reporting and Recordkeeping August 31, 1999. This information is fabricating, marking, maintenance, Burden: used to verify that cylinders meet the reconditioning, repairing, or testing of a Number of Respondents: 500. packaging or container represented, required manufacturing standards prior Total Annual Responses: 5,000. marked, certified, or sold as qualified to being authorized for initial use, and Total Annual Burden Hours: 1,729. for use in transporting hazardous that once manufactured, the cylinders Total Annual Cost for Development material. are maintained and used in compliance and Maintenance: $42,683. This proposed rule concerns the with applicable requirements of the packing and handling of hazardous HMR as packagings for hazardous OMB Control Number 2137–0557 materials, and the design, manufacture, materials. In this proposed rule, these Affected Public: Cylinder fabrication, marking, maintenance, and information collection and manufacturers, requalifiers, and persons testing of cylinders that are marked and recordkeeping requirements for records seeking to change a cylinder’s service certified as qualified for use in the are revised and are in §§ 178.35, pressure. transportation of hazardous materials. If 178.69(e)(13), 180.205, 180.209, Annual Reporting and Recordkeeping so adopted as final, this rule would 180.211, 180.213, and 180.215. Burden: preempt any State, local, or Indian tribe The information and recordkeeping Number of Respondents: 2,027. requirements concerning these subjects requirements in current §§ 173.300a and Total Annual Responses: 2,027. unless the non-Federal requirements are 173.300b for persons seeking approval Total Annual Burden Hours: 2,628. ‘‘substantially the same’’ (see 49 CFR to be an independent inspection agency, Total Annual Cost for Development 107.202(d)) as the Federal requirements. and for chemical analyses and tests of and Maintenance: $294,544. Federal law (49 U.S.C. 5125(b)(2)) DOT specification and exemption RSPA invites comments on these provides that if DOT issues a regulation cylinders conducted outside of the revised information collection concerning any of the covered subjects, United States, were approved by OMB estimates, including any paperwork DOT must determine and publish in the and assigned control number 2137– burdens not already considered. Federal Register the effective date of 0557, with an expiration date of July 31, Requests for a copy of these information Federal preemption. The effective date 1999. The information is used to collections should be directed to may not be earlier than the 90th day evaluate an applicant’s qualification to Deborah Boothe, Office of Hazardous following the date of issuance of the perform the applicable packaging Materials Standards, Room 8102, 400 final rule and not later than two years functions and to ensure material of Seventh Street, SW, Washington, DC after the date of issuance. construction used in cylinders made 20590–0001. Telephone (202) 366–8553 RSPA requests comments on what the outside the United States are in or 1–800–467–4922. Written comments effective date of the Federal preemption accordance with the applicable should be received by the close of the should be for the requirements in this requirements. In this proposed rule, the comment period indentified in the proposed rule that concern covered information collection and DATES section of this rulemaking and subjects. recordkeeping requirements are in should be addressed to the Dockets §§ 107.803, 107.805, 107.807 and Management System as identified in the D. Unfunded Mandates Reform Act of 180.205(c). The information collection ADDRESSES section of this rulemaking. 1995 and recordkeeping requirements for Comments must reference the docket This proposed rule would not impose persons seeking approval as cylinder number, RSPA 98–3684 (HM–220). unfunded mandates under the requalifiers and approval to change a Unfunded Mandates Reform Act of cylinder’s service pressure are removed F. Regulation Identifier Number (RIN) 1995. It does not result in costs of $100 from OMB control number 2137–0022 A regulation identifier number (RIN) million or more, in the aggregate, to any and being placed with the other is assigned to each regulatory action of the following: State, local, or Indian approval requirements under OMB listed in the Unified Agenda of Federal tribal governments, or the private sector. control number 2137–0557. OMB Regulations. The Regulatory Information This rule is the least burdensome control number 2137–0557 includes Service Center publishes the Unified alternative that achieves the objective of information and recordkeeping Agenda in April and October of each the rule. requirements for other than cylinders. year. The RIN contained in the heading 58478 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules of this document can be used to cross- Subpart IÐApproval of Independent the transportation of hazardous reference this action with the Unified Inspection Agencies, Cylinder Requalifiers, materials, except for providing services Agenda. and Non-domestic Chemical Analyses and as an independent inspector. Tests of DOT Specification Cylinders (c) Application information. Each List of Subjects Sec. applicant must submit an application in 49 CFR Part 107 107.801 Purpose and Scope. conformance with § 107.705 that must 107.803 Approval of independent contain the information prescribed in Administrative practice and inspection agency. § 107.705(a). In addition, the application procedure, Hazardous materials 107.805 Approval of cylinder requalifiers. must contain the following information: transportation, Packaging and 107.807 Approval of non-domestic (1) Name and address of each containers, Penalties, Reporting and chemical analyses and tests. manufacturing facility where tests and recordkeeping requirements. Subpart IÐApproval of Independent inspections are to be performed and a 49 CFR Part 171 Inspection Agencies, Cylinder detailed description of the inspection Exports, Hazardous materials Requalifiers, and Non-domestic and testing facilities to be used by the transportation, Hazardous waste, Chemical Analyses and Tests of DOT applicant and the applicant’s ability to Imports, Incorporation by reference, Specification Cylinders perform the inspections and to verify the inspections required by part 178 of Reporting and recordkeeping § 107.801 Purpose and scope. requirements. this chapter or under the terms of an (a) This subpart prescribes procedures exemption issued under this part. 49 CFR Part 172 for— (2) Name, address, and principal Hazardous materials transportation, (1) A person who seeks approval to be business activity of each person having Hazardous waste, Labeling, Packaging an independent inspection agency to any direct or indirect ownership interest and containers, Reporting and perform cylinder inspections and in the applicant greater than three recordkeeping requirements. verifications required by parts 178 and percent and any direct or indirect 180 of this chapter; ownership interest in each subsidiary or 49 CFR Part 173 (2) A person who seeks approval to division of the applicant. Hazardous materials transportation, engage in the requalification (i.e., (3) Name of each individual whom Packaging and containers, Radioactive inspection, testing or certification), the applicant proposes to employ as an materials, Reporting and recordkeeping rebuild or repair of a cylinder inspector and will be responsible for requirements, Uranium. manufactured in accordance with a DOT certifying inspection and test results specification under subchapter C of this and a statement of that person’s 49 CFR Part 177 chapter or under the terms of an qualifications. Hazardous materials transportation, exemption issued under this part; (4) An identification or qualification Motor vehicle safety, Packaging and (3) A person who seeks approval to number assigned to each inspector who containers, Reporting and recordkeeping perform the manufacturing chemical is supervised by a certifying inspector requirements. analyses and tests of DOT specification identified in (c)(3) of this section. or exemption cylinders outside the (5) A statement that the applicant will 49 CFR Part 178 United States. perform its functions independent of the Hazardous materials transportation, (b) No person may engage in a manufacturers and owners of the Packaging and containers, Reporting function identified in paragraph (a) of cylinders. and recordkeeping requirements. this section unless approved by the (6) If the applicant’s principal place of Associate Administrator in accordance business is in a country other than the 49 CFR Part 180 with the provisions of this subpart. Each United States— Hazardous materials transportation, person shall comply with the applicable (i) A copy of the designation from the Motor vehicle safety, Packaging and requirements in this subpart. In Competent Authority of that country containers, Reporting and recordkeeping addition, the procedural requirements delegating to the applicant an approval requirements. in subpart H of this part apply to the or designated agency authority for the In consideration of the foregoing, title filing, processing and termination of an type of packaging for which a DOT 49, Chapter I, Subchapters A and C of approval issued under this subpart. designation is sought; and the Code of Federal Regulations, are (ii) A statement from the Competent proposed to be amended as follows: § 107.803 Approval of independent Authority of that country stating that inspection agency. similar authority is delegated to other PART 107ÐHAZARDOUS MATERIALS (a) General. Prior to performing Independent Inspection Agencies who PROGRAM PROCEDURES cylinder inspections and verifications are approved under this subpart and required by parts 178 and 180 of this that no condition or limitation will be 1. The authority citation for Part 107 chapter, a person must apply to the imposed upon United States citizens or would continue to read as follows: Associate Administrator for an approval organizations that is not required of its Authority: 49 U.S.C. 5101–5127, 44701; as an independent inspection agency. A own citizenry. Sec. 212–213, Pub. L. 104–121, 110 Stat. 857; person approved as an independent (7) The date and signature of the 49 CFR 1.45, 1.53. inspection agency is not a RSPA agent person certifying the approval or representative. application § 107.3 [Amended] (b) Criteria. No applicant for approval (d) Facility inspection. Upon the 2. In § 107.3, the definition of as an independent inspection agency request of the Associate Administrator, ‘‘Registration’’ would be amended by may be engaged in the manufacture of the applicant shall allow the Associate removing the wording ‘‘registration with cylinders for use in the transportation of Administrator or the Associate RSPA as a cylinder retester pursuant to hazardous materials, or be directly or Administrator’s designee to inspect the 49 CFR 173.34(e)(1), or’’. indirectly controlled by, or have a applicant’s facilities and records. The 3. Subpart I would be added to Part financial involvement with, any entity person seeking approval must bear the 107 to read as follows: that manufactures cylinders for use in cost of RSPA’s inspection. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58479

§ 107.805 Approval of cylinder requalifiers. letter, an approval expires five years facility at which cylinders are to be (a) General. A person must meet the from the date of issuance, provided that manufactured and chemical analyses requirements of this section to be the applicant’s facility and and tests are to be performed; complete approved to inspect, test, certify, repair, qualifications are maintained at or details concerning the dimension, or rebuild a cylinder in accordance with above the level observed at the time of materials of construction, wall a DOT specification under subpart C of inspection by the independent thickness, water capacity, shape, type of part 178 or subpart C of part 180 of this inspection agency, or at the date of the joints, location and size of openings and chapter or under the terms of an certification in the application for other pertinent physical characteristics exemption issued under this part. approval, for facilities only performing of each specification or exemption (b) Each applicant must arrange for an inspections made under § 180.209(g) of cylinder for which approval is being independent inspection agency, this chapter. requested, including calculations for approved by the Associate (f) Exceptions. Notwithstanding cylinder wall stress and wall thickness Administrator pursuant to this subpart, requirements in paragraphs (b) and (c) which may be shown on a drawing or to perform a review of its inspection or of this section, a person who only on separate sheets attached to a requalification operation. The person performs inspections in accordance descriptive drawing; the name of the seeking approval must bear the cost of with § 180.209(g) of this chapter must independent inspection agency to be the inspection. A list of approved submit a request which, in addition to used; and the date and the signature of independent inspection agencies is the information prescribed in the person making the certification. available from the Associate § 107.705(a) contains; the facility (c) Facility inspections. Upon the Administrator at the address listed in manager for each location in which request of the Associate Administrator, § 107.705. Assistance in obtaining an requalifications would be performed; the applicant shall allow the Associate approval may be requested from the the DOT specification/exemption Administrator for HMS or the Associate same address. cylinders that will be inspected at the (c) Application for approval. If the facility; a certification that the facility Administrator’s designee to inspect the inspection performed by an will operate in compliance with the applicant’s cylinder manufacturing and independent inspection agency is applicable requirements of subchapter C testing facilities and records, and must completed with satisfactory results, the of this chapter; a certification that the provide such materials and cylinders for applicant must submit a letter of persons performing inspections have analyses and tests as the Associate recommendation from the independent been trained and have the information Administrator may specify. The inspection agency, an inspection report, contained in each applicable CGA applicant or holder shall bear the cost and an application that must contain the pamphlet incorporated by reference in of the initial and subsequent information prescribed in § 107.705(a). § 171.7 of this chapter that applies to the inspections, analyses, and tests. In addition, the application must requalifiers activities; and the date and PART 171ÐGENERAL INFORMATION, contain the following information: the the signature of the person making the REGULATIONS, AND DEFINITIONS name of the facility manager; the DOT certification. Each person shall comply specification/exemption cylinders that with the applicable requirements in this 4. The authority citation for part 171 will be inspected, tested, repaired, or subpart. In addition, the procedural would continue to read as follows: rebuilt at the facility; a certification that requirements in subpart H of this part the facility will operate in compliance apply to the filing, processing and Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. with the applicable requirements of termination of an approval issued under subchapter C of this chapter; and the this subpart. date and the signature of the person § 171.2 [Amended] making the certification. § 107.807 Approval of non-domestic 5. In § 171.2, paragraph (d)(3) would (d) Issuance of requalifier chemical analyses and tests. be amended by removing the wording identification number (RIN). The (a) General. A person who seeks to ‘‘retest or exemption markings’’ and Associate Administrator issues a RIN as manufacture DOT specification or adding in its place the wording ‘‘retest, evidence of approval to requalify DOT exemption cylinders outside the United exemption or requalification specification/exemption cylinders if it is States must seek an approval from the identification number (RIN) markings’’. determined, based on the applicant’s Associate Administrator to perform the submission and other available chemical analyses and tests of those 6. In § 171.7, in the table in paragraph information, that the applicant’s cylinders outside the United States. (a)(3), new entries would be added in qualifications and, when applicable, (b) Application for approval. Each alphanumeric sequence to read as facility are adequate to perform the applicant must submit an application follows: requested functions in accordance with that must contain the information § 171.7 Reference material. the criteria prescribed in subpart C of prescribed in § 107.705(a). In addition, part 180 of this chapter. the application must contain the (a) * * * (e) Expiration of RIN. Unless following information: the name, (3) Table of material incorporated by otherwise provided in the issuance address and a description of each reference. ***

Source and name of material 49 CFR reference

******* American Society for Nondestructive Testing, PO Box 28518, 1711 Arlingate Lane, Columbus, OH 43228±0518 ASNT Recommended Practice SNT±TC±1A, 1992 ...... Part 178, subpart C, Appendix B.

******* American Society for Testing and Materials 58480 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Source and name of material 49 CFR reference

******* ASTM B 221±96 Standard Specification for Aluminum and Aluminum-Alloy Extruded Bars, 178.46(a)(4), Table 2. Rods, Wire, Profiles, and Tubes. ASTM B 221M±96 Standard Specification for Aluminum and Aluminum-Alloy Extruded Part 178, Subpart C, Appendix A, Table 2, Alu- Bars, Rods, Wire, Profiles, and Tubes. minum.

******* ASTM E 10±96 Standard Test Method for Brinell Hardness of Metallic Materials ...... 178.69. ASTM E 18±94 Standard Test Methods for Rockwell Hardness and Rockwell Superficial 178.70. Hardness of Metallic Materials.

******* ASTM E 165±95 Standard Test Method for Liquid Penetrant Examination ...... 178.69. ASTM E 213±93 Standard Practice for Ultrasonic Examination of Metal Pipe and Tubing ... 178.71; 178.72; 178.73; Part 178, Subpart C, Appendix B; 180.215.

******* ASTM E 399±90e1 Standard Test Method for Plane-Strain Fracture Toughness of Metallic 178.73. Materials.

******* ASTM E 709±95 Standard Guide for Magnetic Particle Examination ...... 178.69. ASTM E 797±95 Standard Practice for Measuring Thickness by Manual Ultrasonic Pulse- Part 178, Subpart C, Appendix B; 180.215. Echo Straight-Beam Method.

******* Compressed Gas Association, Inc.

******* CGA Pamphlet C±1, Methods for Hydrostatic Testing of Compressed Gas Cylinders, 1996 178.69; 178.81; 180.205.

******* CGA Pamphlet P±20, Standard for the Classification of Toxic Gas Mixtures, 1995 ...... 173.115.

******* CGA Pamphlet S±7, Method for Selecting Pressure Relief Devices for Compressed Gas 173.301. Mixtures in Cylinders, 1996.

*******

§ 171.7 [Amended] reference ‘‘;178.69’’ would be added, in would be removed and the reference 7. In addition, in § 171.7, in the table numeric order. ‘‘180.205’’ would be added, in its place. in paragraph (a)(3), the following g. In the entry ASTM E 290–92, in m. In the entry CGA Pamphlet C–6.3, changes would be made: column 2, the references ‘‘;178.69; in column 2, the reference ‘‘173.34’’ a. In the entry ASTM A240/A240M– 178.72’’ would be added, in numeric would be removed and the references 94b, the wording ‘‘A240M–94b’’ would order. ‘‘180.205; 180.209’’ would be added, in be revised to read ‘‘A240M–96a.’’ h. In the entry CGA Pamphlet C–3, the its place. year ‘‘1975’’ would be revised to read b. The entry ASTM A 388–67 would n. In the entry CGA Pamphlet C–8, in ‘‘1994’’ and in column 2, the references be removed. column 2, the reference ‘‘173.34’’ would ‘‘178.50; 178.51;’’, ‘‘178.54;’’, ‘‘178.61;’’, c. In the entry ASTM B 557–84, in be removed and the reference ‘‘180.205’’ ‘‘178.68’’ would be removed and would be added, in its place. column 2, the reference ‘‘178.69;’’ ‘‘178.69;’’, ‘‘178.81;’’, ‘‘180.211’’ would o. In the entry CGA Pamphlet C–11, would be added, in numeric order. be added, in numeric order. in column 2, the reference ‘‘178.35’’ d. In the entry ASTM E 8–89, the i. In the entry CGA Pamphlet C–5, in would be removed and the references wording ‘‘E 8–89’’ would be revised to column 2, the reference ‘‘173.302’’ ‘‘178.35; 178.69’’ would be added, in its read ‘‘E 8–96a’’ and in column 2, the would be removed and ‘‘173.302a’’ place. references ‘‘178.36; 178.37; 178.38; would be added, in its place. 178.39;’’, ‘‘178.45;’’, ‘‘178.50; 178.51;’’, j. In the entry CGA Pamphlet C–6, in p. In the entry CGA Pamphlet C–12, ‘‘178.55;’’, ‘‘178.61;’’, and ‘‘178.68;’’ column 2, the reference ‘‘173.34; in column 2, the reference ‘‘173.34;’’ would be removed and ‘‘178.69;’’ would 180.519’’ would be removed and the would be removed and the references be added, in numerical order. references ‘‘173.198; 180.205; 180.209; 173.301;’’ and ‘‘;180.205’’ would be e. In the entry ASTM E 23–60, in 180.211.’’ would be added, in its place. added, in numeric order. column 1, the wording ‘‘E 23–60’’ k. In the entry CGA Pamphlet C–6.1, q. In the entry CGA Pamphlet C–13, would be revised to read ‘‘E 23–96’’ and in column 2, the reference ‘‘173.34’’ in column 2, the reference ‘‘173.34;’’ in column 2, the reference ‘‘178.69;’’ would be removed and the references would be removed and the references ‘‘; would be added, in numeric order. ‘‘180.205; 180.209’’ would be added, in 180.205;’’, and ‘‘180.209.’’ would be f. In the entry ASTM E 112–88, the its place. added, in numeric order. wording ‘‘E 112–88’’ would be revised l. In the entry CGA Pamphlet C–6.2, r. In the entry CGA Pamphlet C–14, in to read ‘‘E 112–96’’ and in column 2, the in column 2, the reference ‘‘173.34’’ column 2, the reference ‘‘173.34’’ would Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58481 be removed and the reference ‘‘173.301’’ mark authorized by TDG or by its § 173.40 General packaging requirements would be added, in its place. predecessor, the Railway Transport for toxic materials packaged in cylinders. s. In the entry CGA Pamphlet S–1.1, Committee of the Canadian Transport When this section is referenced for a in column 2, the reference ‘‘173.34’’ Commission (CTC), in its regulations for hazardous material elsewhere in this would be removed and the references the Transport of Dangerous subchapter, the following requirements ‘‘173.301; 173.304a.’’ would be added, Commodities by Rail and was marked are applicable to cylinders used for that in its place. ‘‘CTC’’ or ‘‘TDG’’; material: 8. In § 171.8, definitions for ‘‘Metric- (iii) The cylinder is in full (a) Authorized cylinders. A cylinder marked cylinder’’ and ‘‘Nonmetric- conformance with the specifications must conform to one of the specifications for cylinders in subpart C marked cylinder’’ would be added, in prescribed by the TDG regulations; alphabetical order, to read as follows: of part 178 of this subchapter, except (iv) The cylinder has been requalified that Specification 8, 8AL, and 39 § 171.8 Definitions and abbreviations. under a program authorized by the cylinders are not authorized. After * * * * * Canadian regulations or requalified in [EFFECTIVE DATE OF THE FINAL Metric-marked cylinder means a accordance with subpart C of part 180 RULE] DOT 3AL cylinders made of cylinder manufactured to the DOT 3M, of this subchapter within the prescribed aluminum alloy 6351 may not be filled 3ALM, 3FM or 4M specification requalification period; and and offered for transportation or prescribed in §§ 178.69 through 178.81 (v) At the time the requalification is transported with a Division 2.3, Zone A of this subchapter. performed, in addition to the markings or B material, a Division 6.1, Zone A or * * * * * prescribed in § 180.211 of this B material or any liquid that meets the Nonmetric-marked cylinder means a subchapter, the cylinder is marked definition of Division 6.1 and meets cylinder manufactured to a DOT ‘‘DOT/’’ immediately before the criteria for Packing Group I, Hazard specification prescribed in §§ 178.35 Canadian specification marking. Zones A or B, as specified in § 173.133. through 178.68 of this subchapter that * * * * * (b) Closures. Each cylinder containing was in effect on [DATE PRIOR TO a Hazard Zone A material must be EFFECTIVE DATE OF THE FINAL PART 172ÐHAZARDOUS MATERIALS closed with a plug or valve conforming RULE]. TABLE, SPECIAL PROVISIONS, to the following: * * * * * HAZARDOUS MATERIALS (1) Each plug or valve must have a COMMUNICATIONS, EMERGENCY taper-threaded connection directly to § 171.8 [Amended] RESPONSE INFORMATION, AND the cylinder and be capable of 9. In addition, in § 171.8, in the TRAINING REQUIREMENTS withstanding the test pressure of the definition of ‘‘Filling density’’, cylinder; paragraph (1) would be amended by 12. The authority citation for Part 172 (2) Each valve must be of the packless revising the reference would continue to read as follows: type with non-perforated diaphragm, ‘‘§ 173.304(a)(2)Table Note 1’’ to read Authority: 49 U.S.C. 5101–5127; 49 CFR except that for corrosive materials, a ‘‘§ 173.304a(a)(2) Table Note 1’’. 1.53. valve may be of the packed type 10. In § 171.12, paragraph (b)(15) provided the assembly is made gas-tight would be revised to read as follows: § 172.101 [Amended] by means of a seal cap with gasketed joint attached to the valve body or the § 171.12 Import and export shipments. 13. Section 172.101, in the Hazardous cylinder to prevent loss of material Materials Table, the following changes * * * * * through or past the packing; (b) * * * would be made: (3) Each valve outlet must be sealed (15) Cylinders not manufactured to a a. For the entry ‘‘Cyanogen’’, in by a threaded cap or threaded solid DOT specification must conform to the Column (8b), the reference ‘‘192’’ would plug; and requirements of § 173.301(j) through (l) be removed and ‘‘304’’ would be added (4) Cylinder, valves, plugs, outlet of this subchapter or, for Canadian in its place. caps, luting and gaskets must be manufactured cylinders, to the b. For the entry ‘‘Germane’’, in compatible with each other and with the requirements of § 171.12a(b)(13). Column (8b), the reference ‘‘192’’ would lading. * * * * * be removed and ‘‘302’’ would be added (c) Additional handling protection. 11. In § 171.12a, in paragraph (b)(13) in its place. Each cylinder or cylinder overpack combination offered for transportation a new sentence would be added at the c. For the entry ‘‘Iron pentacarbonyl’’, containing a Division 2.3 or 6.1 Hazard end of the paragraph, and paragraphs in Column (8b), the reference ‘‘192’’ Zone A or B material must meet the (b)(13)(i) through (b)(13)(v) would be would be removed and ‘‘226’’ would be puncture resistance and valve damage added to read as follows: added in its place. protection performance requirements of § 171.12a Canadian shipments and PART 173ÐSHIPPERSÐGENERAL this section. In addition to the packagings. REQUIREMENTS FOR SHIPMENTS requirements of this section, overpacks * * * * * AND PACKAGINGS must conform to the overpack (b) * * * provisions of § 173.25. (13) * * * However, a cylinder made 14. The authority citation for Part 173 (1) Puncture resistance. Each cylinder in Canada that meets the following would continue to read as follows: or cylinder overpack combination must be qualified under the puncture conditions is authorized for the Authority: 49 U.S.C. 5101–5127, 44701; 49 transportation of a hazardous material CFR 1.45, 1.53. resistance test specified in § 178.69(h)(3) within the United States: of this subchapter. However, a cylinder (i) The cylinder was manufactured on § 173.34 [Removed] meeting the conditions in the following or after January 1, 1977; table is excepted from the puncture (ii) During the manufacturing process, 15. Section 173.34 would be removed. resistance test requirements of this the cylinder was marked with an 16. Section 173.40 would be revised section and of § 178.69(h)(3) of this approval number and an inspector’s to read as follows: subchapter: 58482 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Maximum (2) Specification 3AL or 3ALM (2) Specification 3M, 3ALM, 3FM, water Minimum cylinders may only be offered for and 4M cylinders with a minimum DOT specification/ma- filled wall thick- transportation or transported by marked test pressure of 25 bar (363 terial gross ness weight (inch) highway and rail. psig). (lbs.) (b) Packagings must conform to the (b) Material in Hazard Zones A and B requirements of § 173.40. must be transported in cylinders 3A ...... 215 0.180 (c) For cylinders used for phosgene: conforming to the requirements of 3AA ...... 255 0.220 (1) The filling density may not exceed § 173.40, except that material in Hazard 125 percent; Zone A must be transported only in (2) Valve damage protection. Each (2) A cylinder may not contain more seamless specification cylinders. cylinder with a valve must be equipped than 68 kg (150 pounds) of phosgene; (c) Cylinder valves must be protected with a protective cap, other valve and as specified in § 173.301(h). No cylinder protection device or an overpack (3) Each cylinder containing phosgene may be equipped with any pressure sufficient to protect the valve from must be tested for leakage before it is relief device. deformation, breakage or leakage offered for transportation or transported resulting from a drop of 2.0 m (7 ft) onto §§ 173.300a, 173.300b, 173.300c and must show no leakage; this test [Removed] a non-yielding surface. Impact must be must consist of immersing the cylinder at an orientation most likely to cause 25. In part 173, §§ 173.300a, 173.300b, and valve, without the protection cap and 173.300c would be removed. damage. attached, in a bath of water at a (d) Interconnection. Cylinders may 26. Section 173.301 would be revised temperature of approximately 66’C to read as follows: not be manifolded or interconnected. (150’F) for at least 30 minutes, during § 173.301 General requirements for § 173.115 [Amended] which time frequent examinations must be made to note any escape of gas. The shipment of compressed gases in cylinders 17. In § 173.115, in paragraph (c)(2), valve of the cylinder must not be and spherical pressure vessels. in the last sentence, the wording ‘‘or loosened after this test. Alternatively, (a) General qualifications for use of CGA Pamphlet P–20’’ is added each cylinder containing phosgene may cylinders. As used in this subpart, filled immediately following the word be tested for leakage by a method means an introduction or presence of a ‘‘subpart’’. approved in writing by the Associate hazardous material in a cylinder. A 18. In § 173.115, in paragraph (j), the Administrator for Hazardous Materials Class 2 material (gas) offered for reference ‘‘§ 173.304(a)(2)’’ would be Safety. transportation in a cylinder must be revised to read ‘‘§ 173.304a(a)(2)’’. prepared in accordance with this 19. Section 173.163 would be revised § 173.198 [Amended] section and §§ 173.302 through 173.305. to read as follows: 21. In § 173.198, in paragraph (a), the (1) Compressed gases must be in § 173.163 Hydrogen fluoride. reference ‘‘§ 173.34(e)’’ would be metal cylinders and containers built in revised to read ‘‘§ 180.205 of this accordance with the DOT (and ICC, as Hydrogen fluoride (hydrofluoric acid, subchapter’’. shown) specifications, as shown in this anhydrous) must be packaged in 22. In § 173.226, paragraph (a) would paragraph (a)(1), in effect at the time of specification 3, 3A, 3AA, 3B, 3BN, 3E, be revised to read as follows: manufacture, and marked as required by 4A, or 3M cylinders; or Specification the specification and the regulation for 4B, 4BA, 4BW, or 4M cylinders, if they § 173.226 Materials poisonous by requalification if applicable: are not brazed. Filling density may not inhalation, Division 6.1, Packing Group I, exceed 85 percent of the cylinder’s Hazard Zone A. Packagings water weight capacity. Metric-marked * * * * * 2P cylinders must be requalified by (a) In seamless specification cylinders 2Q ultrasonic examination in accordance conforming to the requirements of ICC–31 1 with § 180.207 of this subchapter. § 173.40. 3A 3AA1 Nonmetric-marked cylinders must be * * * * * 3AL1 requalified by ultrasonic examination in 23. In § 173.227, paragraph (a) would 3ALM accordance with § 180.209(a)(2) of this be revised to read as follows: 3AX1 subchapter. 3A480X1 20. Section 173.192 would be revised § 173.227 Materials poisonous by 3AAX1 to read as follows: inhalation, Division 6.1, Packing Group I, 3B1 Hazard Zone B. 3BN1 § 173.192 Packaging for certain toxic * * * * * 3E gases in Hazard Zone A. (a) In packagings as authorized in 3FM When § 172.101 of this subchapter § 173.226 and seamless and welded 3HT specifies that a toxic material be 3M specification cylinders conforming to 1 packaged under this section, only 3T the requirements of § 173.40. 4AA480 specification cylinders are authorized, * * * * * 4B1 as follows: 24. Section 173.228 would be revised 4B240ET1 (a) Specification 3A1800, 3AA1800, to read as follows: 4BA1 3AL1800, or 3E1800 cylinders; 3M, 4BW1 3ALM, or 3FM cylinders with a marked § 173.228 Bromine pentafluoride or 4D test pressure of 200 bar (2900 psig); bromine trifluoride. 4DA under the following conditions: (a) The following packagings are (1) Specification 3A, 3AA, 3AL, 3M, authorized: 1 Use of existing cylinders is authorized. New 3ALM, or 3FM cylinders may not construction is not authorized after [FIVE YEARS (1) Specification 3A150, 3AA150, FROM EFFECTIVE DATE OF THE FINAL RULE], exceed 57 kg (125 pounds) water 3B240, 3BN150, 4B240, 4BA240, except that new construction of ICC–3 cylinders is capacity (nominal). 4BW240 and 3E1800 cylinders; currently not authorized. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58483

4DS provided it does not affect the required relief device must be capable of 4E1 markings prescribed in the applicable preventing rupture of the normally 4L cylinder specification. filled cylinder when subjected to a fire 4M (c) Toxic gases and mixtures. test conducted in accordance with CGA 8 Cylinders containing toxic gases and 8AL Pamphlet C–14, or in the case of an 39 toxic gas mixtures that meet the criteria acetylene cylinder, CGA Pamphlet C– of Division 2.3 Hazard Zone A or B must 12. (2) A cylinder must be filled in conform to the requirements of § 173.40, (4) Before each filling of a cylinder accordance with this part. Before each CGA Pamphlets S–1.1 and S–7. DOT 39 equipped with a pressure relief device, filling of a cylinder, the person filling cylinders may not be used for toxic the person filling the cylinder must the cylinder must visually inspect the gases or toxic gas mixtures that meet the visually inspect each pressure relief outside of the cylinder. A cylinder that criteria for Division 2.3 Hazard Zone A device for corrosion, damage, rust, has a crack or leak, is bulged, has a or B. plugging of external pressure relief defective valve or pressure relief device, (d) Gases capable of combining device channels, and other mechanical or bears evidence of physical abuse, fire chemically. A filled cylinder may not defects such as extrusion of fusible or heat damage, or detrimental rusting contain any gas or material that is metal. A cylinder with a defective or corrosion may not be used unless it capable of combining chemically with pressure relief device may not be used. is properly repaired and requalified as the cylinder’s contents or with the (5) Before a filled cylinder is offered prescribed in subpart C of part 180 of cylinder material of construction so as for transportation from the cylinder this subchapter. to endanger the cylinder’s serviceability. filling facility, the pressure relief device (3) A cylinder that has previously After [EFFECTIVE DATE OF THE must be tested for leaks. A cylinder with contained a Class 8 material must be FINAL RULE] DOT 3AL cylinders made a leaking pressure relief device may not requalified in accordance with of aluminum alloy 6351 may not be be offered for transportation. § 180.205(e) of this subchapter. filled and offered for transportation with (6) A pressure relief device is not (4) When a cylinder with a marked pyrophoric gases. required on—— pressure limit is prescribed, another (e) Ownership of cylinder. A cylinder (i) A cylinder 305 mm (12 inches) or cylinder made under the same filled with a hazardous materials may less in length, exclusive of neck, and specification but with a higher marked not be offered for transportation unless 114 mm (4.5 inches) or less in outside pressure limit is authorized. For it was filled by the owner of the diameter, except: example, a cylinder marked ‘‘DOT– cylinder or with the owner’s consent. (A) When filled with a liquefied gas 4B500’’ may be used when ‘‘DOT– (f) Pressure relief device systems. (1) for which this part requires a service 4B300’’ is specified and a cylinder Except as provided in paragraph (f)(6) pressure of 1800 psi or higher for a marked ‘‘DOT–3FM140’’ may be used and (f)(7) of this section, a cylinder nonmetric-marked cylinder, and a test when ‘‘DOT–3FM70’’ is authorized. filled with a gas for transportation must pressure of 186 bar (2700 psi) or higher (5) No person may fill a cylinder be equipped with one or more pressure for a metric-marked cylinder; or overdue for periodic requalification relief devices sized and selected as to (B) When filled with a nonliquefied with a hazardous material and then offer type, location and quantity and tested in gas to a pressure less than 1800 psi for it for transportation. This requirement accordance with CGA Pamphlets S–1.1 a nonmetric-marked cylinder and 124 does not apply to a cylinder that was (compliance with paragraph 9.1.1.1 of bar for a metric-marked cylinder. filled prior to the requalification due CGA Pamphlet S–1.1 is not required) (ii) A cylinder with a water capacity date. and S–7. A pressure relief device is of less than 454 kg (1000 lbs) filled with (6) After its authorized service life has required on a DOT 39 cylinder and a a nonliquefied gas to a pressure of 21 expired, a cylinder may not be offered cylinder used for acetylene in solution, bar (300 psi) or less at 21°C (70°F). for transportation in commerce. regardless of cylinder size or filled (iii) A cylinder containing a Class 3 or (7) For nonmetric-marked cylinders, pressure. A DOT 39 cylinder used for a Class 8 material without the pressure of the hazardous material at liquefied Division 2.1 materials must be pressurization unless otherwise 55°C (131°F) must not exceed the equipped with a metal pressure relief specified for the hazardous material. service pressure of the cylinder. valve. Fusible pressure relief devices are (7) A pressure relief device is Sufficient outage shall be provided so not authorized on a DOT 39 cylinder prohibited on a cylinder filled with a that the cylinder will not be liquid full containing a liquefied gas. Division 2.3 or a Division 6.1 material at 55°C (131°F). (2) When installed, a pressure relief in Hazard Zone A. (8) Metric-marked cylinders device must be in the vapor space of a (g) Manifolding cylinders in containing permanent gases must be cylinder. transportation. (1) Cylinder manifolding filled in accordance with § 173.302b. (3) For a metric-marked cylinder, the is only authorized under conditions (9) Metric-marked cylinders start-to-discharge pressure of a pressure prescribed in this paragraph (g). containing liquefied gases must be filled relief device may not be less than the Manifolded cylinders shall be supported in accordance with § 173.304b. marked test pressure of the cylinder. For and held together as a unit by (10) DOT 2P, 2Q, 3E, 3HT, spherical a nonmetric-marked DOT–3 series structurally adequate means. Except for 4BA, 4D, 4DA, 4DS, 39, and spherical cylinder, from the first requalification Division 2.2 materials, each cylinder 4M cylinders must be shipped in strong due on and after [EFFECTIVE DATE OF must be equipped with an individual outside packagings. The strong outside THE FINAL RULE,] the start-to- shutoff valve that must be tightly closed packaging must conform to paragraph discharge pressure of the pressure relief while in transit. Manifold branch lines (h) of this section and to § 173.25. device, may not be less than the must be sufficiently flexible to prevent (b) Cylinder markings. Required minimum required test pressure. To damage to the valves which otherwise markings on a cylinder must be legible ensure that the relief device does not might result from the use of rigid branch and must meet the applicable open below its set pressure, the lines. Each cylinder must be requirements of subpart C of part 180 of allowable tolerances for all the pressure individually equipped with a pressure this subchapter. Additional information relief devices must range from zero to relief device as required in paragraph (f) may be marked on the cylinder plus 10% of its setting. The pressure of this section. Pressure relief devices 58484 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules on manifolded cylinders, filled with a (ii) Packaging the cylinder in a box, (l) Charging of foreign cylinders for compressed gas, must be arranged to crate or other strong outside packaging export. A cylinder manufactured discharge upward and unobstructed to conforming to the requirements of outside the United States that was not the open air in such a manner as to § 173.25. manufactured, inspected, tested and prevent any escaping gas from (iii) Constructing the cylinder such marked in accordance with part 178 of contacting personnel or any adjacent that the valve is recessed into the this subchapter or a cylinder cylinders. Valves and pressure relief cylinder or otherwise protected. manufactured to other than a DOT devices on manifolded cylinders, filled (i) Cylinders mounted on motor specification or exemption may be filled with a compressed gas, must be vehicles or in frames. Seamless DOT with a gas in the United States and protected by framing or other method specification cylinders longer than two offered for transportation and which is equivalent to the valve meters (6.5 feet) are authorized for transported for export, if the following protection required in paragraph (h) of transportation only when horizontally conditions are met: this section. Manifolding is authorized mounted on a motor vehicle or in an (1) The cylinder has been requalified for cylinders containing the following ISO framework or other framework of and marked with the month and year of gases: equivalent structural integrity. requalification in accordance with (i) Nonliquefied compressed Cylinders may be transported by rail in subpart C of part 180 of this subchapter, (permanent)gases authorized by container on freight car (COFC) or trailer or has been requalified as authorized by § 173.302. on flat car (TOFC) service only under the Associate Administrator for (ii) Liquefied compressed gases that conditions approved by the Associate Hazardous Materials Safety. are authorized by § 173.304. Each Administrator for Safety, Federal (2) The maximum filling density and manifolded cylinder, containing a Railroad Administration. The cylinder service pressure for each cylinder liquefied compressed gas, must be must be configured as follows: conform to the requirements of this part separately filled and means must be (1) Each cylinder must be fixed at one for the gas involved. provided to ensure that no interchange end of the vehicle or framework with (3) The bill of lading or other shipping of cylinder contents can occur during provision for thermal expansion at the paper shall identify the cylinder and transportation. opposite end attachment; shall carry the following certification: (iii) Acetylene as authorized by (2) The valve and pressure relief ‘‘This cylinder has (These cylinders § 173.303. device protective structure must be have) been qualified, as required, and (2) For the checking of tare weights or sufficiently strong to withstand a force filled in accordance with the DOT for replacement of solvent, the cylinder equal to twice the weight of the cylinder requirements for export.’’ must be removed from the manifold. and framework assembly with a safety (m) Sharp attachments. Attachments This requirement is not intended to factor of four, based on the ultimate to cylinders filled for transportation prohibit the filling of acetylene strength of the material used; and may not have sharp corners, edges, or cylinders while manifolded. (3) Discharge from a pressure relief any other features that are capable of (h) Cylinder valve protection. (1) device shall be arranged in such a causing puncture or damage to other Except for a cylinder meeting the manner to prevent any escaping gas freight. Attachments include all following conditions, a cylinder offered from contacting personnel or any permanent structural attachments, as for transportation must meet the adjacent cylinders. well as anything temporarily attached to performance requirements specified in (j) Non-specification cylinders in the cylinder, such as skids. paragraph (h)(2) of this section: domestic use. Except as provided in 27. Section 173.301a would be added (i) A cylinder manufactured before paragraphs (k) and (l) of this section, a to read as follows: [FIVE YEARS FROM EFFECTIVE DATE filled non-DOT specification cylinder, § 173.301a Additional general OF THE FINAL RULE.]; other than a DOT exemption cylinder, requirements for shipment of nonmetric- (ii) A cylinder containing only a may not be offered for transportation or marked cylinders. Division 2.2 material without a Division transported to, from, or within the (a) General. The requirements in this 5.1 subsidiary hazard; United States. section are in addition to the (iii) A cylinder containing a Class 9 (k) Importation of foreign cylinders for requirements in § 173.301 and apply to material or a Class 8 material only discharge within a single port area. A the shipment of gases in nonmetric- corrosive to metal; cylinder manufactured to other than a marked cylinders. (iv) A cylinder with a water capacity DOT specification that has been (b) Authorized cylinders not marked of 4.8 liters (293 cubic inches) or less certified as being in conformance with with a service pressure. For authorized containing oxygen, compressed; the transportation regulations of another cylinders not marked with a service (v) A cylinder containing oxygen, country may be authorized upon written pressure, the service pressure is refrigerated liquid (cryogenic liquid). request to and approval by the Associate designated as follows: (2) Each cylinder valve assembly must Administrator for Hazardous Materials be of sufficient strength or protected Safety, for transportation within a single Service such that no leakage occurs when a port area, provided— Specification marking pressure psig cylinder with the valve installed is (1) The cylinder is transported in a dropped 1.8 m (6 ft.) or more onto a closed freight container; 3 ...... 1800 non-yielding floor, impacting the valve (2) The cylinder is certified by the 3E ...... 1800 assembly or protection device at an importer to provide a level of safety at 8 ...... 250 orientation most likely to cause damage. least equal to that required by the The cylinder valve assembly protection regulations in this subchapter for a (c) Cylinder pressure at 21°C (70°F). may be provided by any method that comparable DOT specification cylinder; The pressure in a cylinder at 21°C (70°F) meets the performance requirement in and may not exceed the service pressure for this paragraph (h)(2), examples include: (3) The cylinder is not refilled for which the cylinder is marked or (i) Equipping the cylinder with a export unless in compliance with designated, except as provided in securely attached metal cap. paragraph (l) of this section. § 173.302a(b). For certain liquefied Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58485 gases, the pressure at 21°C (70°F) must (c) Pressure in cylinders containing a irrespective of the provisions of be lower than the marked service liquefied compressed gas. (1) The § 173.24(b)(1). pressure to avoid having a pressure at a pressure in a cylinder containing a (d) Shipment of Division 2.1 materials temperature of 54.4°C (131°F) that is liquefied compressed gas which has in aluminum cylinders are authorized greater than permitted. critical temperature ranging from ¥10 only when transported by highway, rail, (d) Cylinder pressure at 55°C (131°F). °C (14 °F) up to 70 °C (158 °F) may not or cargo-only aircraft. The pressure in a cylinder at 55°C exceed the cylinder’s marked test 30. Section 173.302a would be added (131°F) may not exceed 5⁄4 times the pressure or be liquid full at a to read as follows: service pressure, except: temperature of 65 °C (149 °F). (1) A cylinder filled with acetylene, § 173.302a Additional requirements for (2) The pressure in a cylinder shipment of permanent (nonliquefied) liquefied nitrous oxide or carbon containing a liquefied compressed gas compressed gases in nonmetric-marked dioxide. which has a critical temperature greater cylinders. (2) When a cylinder is filled in than or equal to 70 °C (158 °F) may not (a) Detailed filling requirements. accordance with § 173.302a(b), the exceed the cylinder’s marked test Nonliquefied compressed gases (except pressure in the cylinder at 55°C (131°F) pressure or be liquid full at 54 °C gas in solution) for which filling may not exceed 5⁄4 times the filling (130 °F). requirements are not specifically pressure. (d) Authorized gases for DOT 3FM 28. Section 173.301b would be added prescribed in § 173.304a must be to read as follows: cylinders. A DOT 3FM cylinder may shipped, subject to the requirements in only be used for gases free of corroding this section and §§ 173.301, 173.301a, § 173.301b Additional general components with a dew point below 173.302 and 173.305 in nonmetric- requirements for shipment of metric- ¥49 °C (¥56 °F). A DOT 3FM cylinder marked cylinders, as follows: marked cylinders. is not authorized for hydrogen or (1) Specification 3, 3A, 3AA, 3AL, 3B, (a) Definitions. For purposes of this hydrogen bearing gases (e.g., hydrogen 3E, 4B, 4BA and 4BW cylinders. subpart, the following definitions apply sulfide). (2) DOT 3HT cylinders. These to Class 2 materials in metric-marked 29. Section 173.302 would be revised cylinders are authorized for aircraft use cylinders: to read as follows: only and only for nonflammable gases. Critical temperature means the They have a maximum service life of 24 temperature above which the substance § 173.302 Filling of cylinders with non- years from the date of manufacture. The can not exist in the liquid state. liquefied compressed gases. cylinders must be equipped with Dissolved gas means a gas which is (a) General requirements. A cylinder pressure relief devices only of the dissolved under pressure in a liquid filled with a non-liquefied compressed frangible disc type which meet the phase solvent. The solvent may be gas (except gas in solution) must be requirements of § 173.301(f). Each supported in a porous mass. offered for transportation in accordance frangible disc must have a rated bursting Filling factor of liquefied compressed with the requirements of this section pressure which does not exceed 90 gas means the mass of a gas, in kg (or and §§ 173.301, 173.301a, 173.301b, percent of the minimum required test pound), which can be filled into a 1 liter 173.302a, 173.302b and 173.305. Where pressure of the cylinder. Discs with (61 cubic inches) water capacity more than one section applies to a fusible metal backing are not permitted. container. The filling factor of each cylinder, the most restrictive Specification 3HT cylinders may be liquefied compressed gas must be requirement must be followed. offered for transportation only when calculated to meet all requirements of (b) Aluminum cylinders in oxygen packed in strong outer packagings § 173.304b. service. Each aluminum cylinder filled conforming to the requirements of High pressure liquefied compressed with oxygen must meet the following § 173.25. gas means a gas which has a critical conditions: (3) For a specification 39 cylinder temperature in the range from ¥10 °C filled with a Division 2.1 material, the ° ° ° (1) Each cylinder must be equipped (14 F) to less than 70 C (158 F). only with brass or stainless steel valves; internal volume may not exceed 75 Low pressure liquefied compressed (2) Each cylinder must have only cubic inches. gas means a gas which has a critical (4) Specification 3AX, 3AAX, and 3T straight threads in the opening; temperature equal to or above 70 °C (158 cylinders are authorized for Division 2.1 °F). (3) Each cylinder must be cleaned in and 2.2 materials and for carbon Permanent (non-liquefied accordance with the requirements of monoxide. DOT 3T cylinders are not compressed) gas means a gas other than Federal Specification RR–C–901c, authorized for hydrogen. When used in in solution, which has a critical paragraphs 3.7.2, and 3.8.2. Cleaning methane service, the methane must be a temperature below ¥10 °C (14 °F). agents equivalent to those specified in non-liquefied gas which has a minimum Safety factor means the ratio of the RR–C–901c may be used provided they purity of 98.0 percent methane and cylinder burst pressure to its marked do not react with oxygen. One cylinder which is commercially free of corroding test pressure. For example, a cylinder selected at random from a group of 200 components. with a marked test pressure of 180 bar or less and cleaned at the same time, (5) Aluminum cylinders made to DOT (2610 psi) and a burst pressure of 340 must be tested for oil contamination in specification 39 and 3AL are authorized bar (4930 psi) and has a safety factor of accordance with Specification RR–C– for oxygen only under the conditions 1.89. 901c, paragraph 4.4.2.3, and meet the specified in § 173.302(b). Settled pressure (formerly referred to standard of cleanliness specified; and (b) Special filling limits for as service pressure) means the pressure (4) The pressure in each cylinder may specification 3A, 3AX, 3AA, 3AAX, and of the contents of the cylinder at 15 °C not exceed 207 bar (3000 psig) at 21 °C 3T cylinders. A specification 3A, 3AX, (59 °F). (70 °F). 3AA, 3AAX, and 3T cylinders may be (b) Pressure in cylinders containing a (c) Each authorized cylinder filled with a compressed gas, other than permanent gas. The pressure in a DOT containing oxygen which is a liquefied, dissolved, Division 2.3 or 3M, 3FM, 3ALM or 4M cylinder continuously fed to tanks containing 2.1 material, to a pressure 10 percent in containing a permanent gas must be as live fish may be offered for excess of its marked service pressure, prescribed in § 173.302b. transportation and transported provided: 58486 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

(1) The cylinder is equipped with a (iv) Compliance with average wall (2) A DOT 3ALM, 3M, or 3FM frangible disc pressure relief devices stress limitation may be determined cylinder with a marked test pressure (without fusible metal backing) having a through computation of the elastic greater than or equal to 200 bar (2900 bursting pressure not exceeding the expansion rejection limit in accordance psi) is authorized for transportation of minimum prescribed test pressure. with CGA Pamphlet C–5 or through the Division 2.3 Hazard Zone A gases. (2) The cylinder’s elastic expansion use of the manufacturer’s marked elastic (3) The settled pressure for a DOT 3M, was determined at the time of the last expansion rejection limit (REE) on the 3FM or 3ALM cylinder may not exceed test or retest by the water jacket method. cylinder. two-thirds of the cylinder’s marked test (3) Either the average wall stress or (4) That an external and internal pressure. the maximum wall stress does not visual examination made at the time of (4) The settled pressure for a DOT 4M exceed the wall stress limitation shown test or retest shows the cylinder to be cylinder and a DOT 3M cylinder made in the following table: free from excessive corrosion, pitting, or from nickel may not exceed one-half of dangerous defects. the cylinder’s marked test pressure. Average Maximum (5) That a plus sign (+) be added (5) A DOT 3FM cylinder exceeding wall wall following the test date marking on the 454 kilogram (1000 pounds) water Type of steel stress stress limitation limitation cylinder to indicate compliance with capacity is authorized for dry paragraphs (b) (2), (3), and (4) of this compressed natural gas (scrubbed to Plain carbon steels section. remove acid gases). The cylinder may over 0.35 carbon (c) Carbon monoxide. Carbon not contain any liquefied gas and the and medium man- monoxide must be offered in a gas must meet following conditions: ganese steels ...... 53,000 58,000 specification 3, 3A, 3AX, 3AA, 3AAX, (i) Water content is less than or equal Steels of analysis and 3AL, 3E, or 3T cylinder having a to 0.5 lb. per million cubic feet at heat-treatment minimum service pressure of 1,800 psig. specified in spec. standard temperature and pressure The pressure in the cylinder may not (STP) (60° F., 30 inches Hg). 3AA ...... 67,000 73,000 ° Steel of analysis and exceed 1000 psig at 70 F., except that (ii) Hydrogen Sulfide and Mercaptan heat treatment if the gas is dry and sulfur free, the Sulfur in Natural Gas is less than or specified in spec. cylinder may be filled to five-sixths of equal to 0.1 grain per 100 cubic feet. DOT±3T ...... 87,000 94,000 the cylinder’s service pressure or 2000 (iii) Total Soluble Sulfides other than Plain carbon steels psig, whichever is less. A DOT 3AL Hydrogen Sulfide must be less than or less than 0.35 car- cylinder is authorized only when equal to 0.1 grain per 100 cubic feet at bon made prior to transported by highway, rail or cargo- STP. 1920 ...... 45,000 48,000 only aircraft. (iv) Less than one percent by volume (d) Diborane and diborane mixtures. of oxygen. (i) The average wall stress shall be Diborane and diborane mixed with (v) Less than three percent by volume computed from the elastic expansion compatible compressed gas must be of carbon dioxide. data using the following formula: offered in a DOT 3AA1800 cylinder. (b) Pressure Limit. Pressure in a S = 1.7EE / KV—0.4P The maximum filling density of the cylinder containing a permanent gas at Where: diborane may not exceed 7 percent. 70 °C (158 °F) may not exceed the S = wall stress, pounds per square inch; Diborane mixed with compatible values in the following table: EE = elastic expansion (total less compressed gas may not have a pressure permanent) in cubic centimeters; exceeding the service pressure of the Percent- × ¥7 cylinder if complete decomposition of age of K = factor 10 experimentally cylinder's determined for the particular type the diborane occurs. Cylinder valve Division marked of cylinder being tested or derived assembles must be protected in test pres- in accordance with CGA Pamphlet accordance with § 173.301(h). sure C–5; (e) Fluorine. Fluorine must be offered in a DOT 3A1000, 3AA1000, or 3BN400 2.3, Zone A ...... 63 V = internal volume in cubic centimeter 2.3, Zone B, C ...... 70 (1 cubic inch = 16.387 cubic cylinder without a pressure relief device and equipped with a valve protection 2.1/5.1; 2.3, Zone D ...... 78 centimeters); 2.2 ...... 100 P = test pressure, pounds per square cap. The cylinder may not be filled to ° inch. over 400 psig at 70 F. and may not (c) Fluorine. Fluorine must be (ii) The maximum wall stress shall be contain over 6 pounds of gas. shipped in DOT 3M or 4M cylinders 31. Section 173.302b would be added computed from the formula: without pressure relief devices. The to read as follows: S = (P(1.3D2 + 0.4d2)) / (D2-d2) settled pressure may not exceed 1⁄4 of Where: § 173.302b Additional requirements for the cylinder’s marked test pressure, or shipment of permanent gases in metric- be more than 28 bar (400 psig) at 21 °C S = wall stress, pounds per square inch; marked cylinders. (70 °F). The cylinder may not contain P = test pressure, pounds per square (a) General requirements. Permanent over 2.7 kg (6 pounds) of gas. inch; gases (except gas in solution) must be (d) Carbon monoxide. A cylinder D = outside diameter, inches; shipped, subject to this section and filled with carbon monoxide may not d = D–2t, where t=minimum wall §§ 173.301, and 173.301b in a DOT exceed 1⁄3 of the cylinder’s marked test thickness determined by a suitable specification 3ALM, 3M, 3FM or 4M pressure, except that if the gas is dry method. cylinder. and sulfur free, settled pressure may not (iii) The formula in paragraph (b)(3)(i) (1) A cylinder with a marked test exceed 1⁄2 of the cylinder’s marked test of this section is derived from the pressure greater than or equal to 35 bar pressure. formula in paragraph (b)(3)(ii) and the (508 psi) is authorized for transportation (e) Diborane and diborane mixtures. following: of Division 2.1, 2.2, or 2.3 Hazard Zone Diborane and diborane mixed with a EE = (PKVD2) / (D2-d2) B,C or D gas. compatible compressed gas must be Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58487 shipped in a DOT 3M cylinder and the temperature does not exceed 83% of the DOT 2P container must be used. In any settled pressure may not exceed 1⁄3 of test pressure of a metric-marked event, the metal container must be the cylinder’s marked test pressure. The cylinder. capable of withstanding, without maximum filling density of the diborane (c) Mixture of compressed gas and bursting, a pressure of one and one-half may not exceed 7 percent. Diborane other material. A mixture of compressed times the pressure of the content at 54 mixed with a compatible compressed gas must be shipped in accordance with °C (130 °F). The liquid content of the gas may not have a settled pressure § 173.305. material and gas must not completely exceeding 2⁄3 of the cylinder’s marked (d) Refrigerant gases. Refrigerant gases fill the container at 54 °C (130 °F). Each test pressure if complete decomposition which are nontoxic and nonflammable container, filled for shipment, must of the diborane occurs. The cylinder under this part, must be offered for have been heated until its contents valve must be protected in accordance transportation in cylinders prescribed in reach a temperature of 54 °C (130 °F), with § 173.301(h). §§ 173.304a, 173.304b, or in DOT 2P without evidence of leakage, distortion, 32. Section 173.304 would be revised and 2Q containers (§§ 178.33, 178.33a of or other defect. Each outside shipping to read as follows: this subchapter). DOT 2P and 2Q container must be plainly marked, § 173.304 Filling of cylinders with liquefied containers must be packaged in a strong ‘‘INSIDE CONTAINERS COMPLY WITH compressed gases. wooden or fiberboard box of such PRESCRIBED SPECIFICATIONS.’’ (a) General requirements. Liquefied design as to protect valves from injury (2) [Reserved] compressed gases (except gas in or accidental functioning under 33. Section 173.304a would be added solution) must be shipped in accordance conditions incident to transportation. to read as follows: Pressure in the inside metal containers with the requirements in this section § 173.304a Additional requirements for and in §§ 173.301, 173.301a, 173.301b, may not exceed 6 bar absolute (87 psia) at 21° C (70° F). Each completed metal shipment of liquefied compressed gases in 173.304a, 173.304b and 173.305. nonmetric-marked cylinders. (1) DOT 3AL, 3ALM, 3FM and 4M container filled for shipment must be cylinders may not be used for any heated until its contents reach a (a) Detailed filling requirements. material that has a primary or subsidiary temperature of 54° C (130° F) without Liquefied gases (except gas in solution), hazard of Class 8. evidence of leakage, distortion, or other must be offered for transportation, (2) Shipments of Division 2.1 defect. Each outside package must be subject to the requirements in this materials in aluminum cylinders are plainly marked ‘‘INSIDE CONTAINERS section and §§ 173.301, 173.301a and authorized only when transported by COMPLY WITH PRESCRIBED 173.304, in nonmetric-marked highway, rail or cargo-only aircraft. SPECIFICATIONS.’’ cylinders, as follows: (b) Filling limits. Except for carbon (e) Engine starting fluid. Engine (1) Specification 3, 3A, 3AA, 3B, 3BN, dioxide, 1,1-Difluoroethylene (R– starting fluid containing a flammable 3E, 4B, 4BA, 4B240ET, 4BW, 4E, 39, 1132A), nitrous oxide and vinyl compressed gas or gases must be except that no Specification 4E or 39 fluoride, inhibited, the liquid portion of shipped in a cylinder as prescribed in packaging may be filled and shipped a liquefied gas may not completely fill § 173.304a, 173.304b, or as follows: with a mixture containing a pyrophoric the packaging at any temperature up to (1) Inside nonrefillable metal liquid, carbon bisulfide (disulfide), and including 54° C (130° F). The liquid containers having a capacity not greater ethyl chloride, ethylene oxide, nickel portion of vinyl fluoride, inhibited, may than 500 ml (32 cubic inches). The carbonyl, spirits of nitroglycerin, or completely fill the cylinder at 54° C containers must be packaged in strong, toxic material (Division 6.1 or 2.3), (130° F) provided; the pressure at the tight outer packagings. The pressure in unless specifically authorized in this critical temperature does not exceed one the container may not exceed 10 bar part. and one-fourth times the service absolute (145 psia), at 54 °C (130 °F). (2) The following requirements must pressure of a nonmetric-marked However, if the pressure exceeds 10 bar be complied with for the gases named cylinder; or the pressure at the critical absolute (145 psia), at 54 °C (130 °F), a (for cryogenic liquids, see § 173.316):

Maximum permitted filling Containers marked as shown in this column or of the same type with higher Kind of gas density (percent) service pressure must be used except as provided in §§ 173.301(1), (See Note 1) 173.301(a)(4) (see notes following table)

Anhydrous ammonia ...... 54 ...... DOT±4; DOT±3A480; DOT±3AA480; DOT±3A480X; DOT±4A480; DOT±3; DOT±4AA480; DOT±3E1800; DOT±3AL480. Bromotrifluoromethane (R±13B1 or H± 124 ...... DOT±3A400; DOT±3AA400; DOT±3B400; DOT±4A400; DOT±4AA480; DOT± 1301). 4B400; DOT±DOT±4BA400; DOT±4BW400; DOT±3E1800; DOT±39; DOT± 3AL400. Carbon dioxide (see notes 4, 7, and 8) 68 ...... DOT±3A1800; DOT±3AX1800; DOT±3AA1800; DOT±3AAX1800; DOT±3; DOT±3E1800; DOT±3T1800; DOT±3HT2000; DOT±39; DOT±DOT±4L. Carbon dioxide, refrigerated liquid (see 125 ...... DOT±3AL1800. DOT±3A480; DOT±3AA480; DOT±3; DOT±3BN480; DOT± paragraph (e) of this section.) Chlo- 3E1800. rine (see Note 2). Chlorodifluroethane (R±142b) or 1± 100 ...... DOT±3A150; DOT±3AA150; DOT±3B150; DOT±3E1800; DOT±39, DOT± Chloro±1, 4B150; DOT±4BA225; 3AL150. DOT±4BW225; DOT±1± difluoroethane (Note 8). Chlorodifluoromethane (R±22) (see 105 ...... DOT±3A240; DOT±3AA240; DOT±3B240; DOT± 4B240; DOT±4BA240; DOT± Note 8). 4BW240; DOT±4B240ET; DOT±4E240; DOT±39; DOT±41; DOT±3E1800; and DOT±3AL240. Chloropentafluorethane, (R±115) ...... 110 ...... DOT±3A225; DOT±3AA225; DOT±3B225; DOT±4A225; DOT±4BA225; DOT± 4B225; DOT±4BW225; DOT±3E1800; DOT±39; and DOT±3AL225. Chlorotrifluoromethane (R±13) (see 100 ...... DOT±3A1800; DOT±3AA1800; DOT±3; DOT±3E1800; DOT±39; and DOT± Note 8). 3AL1800. 58488 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Maximum permitted filling Containers marked as shown in this column or of the same type with higher Kind of gas density (percent) service pressure must be used except as provided in §§ 173.301(1), (See Note 1) 173.301(a)(4) (see notes following table)

Cyclopropane (see Note 8) ...... 55 ...... DOT±3A225; DOT±3A480X; DOT±3AA225; DOT±3B225; DOT±4A225; DOT± 4AA480; DOT4B225; DOT±4BA225; DOT±4BW225; DOT±4B240ET; DOT±3; DOT±3E1800; DOT±39;DOT±3AL225. Dichlorodifluoromethane (R±12) (see 119 ...... DOT±3A225; DOT±3AA225; DOT±3B225;DOT± 4A225; DOT±4B225; DOT± Note 8). 4BA225; DOT±4BW225; DOT±4B240ET; DOT±4E225;DOT±9; DOT±39; DOT±41; DOT±3E1800; and DOT±3AL225. Dichlorodifluoromethane and Not liquid full at 130 DOT±3A240; DOT±3AA240, DOT±3B240; DOT±3E1800; DOT±4A240; DOT± difluoroethane mixture (constant boil- °F. 4B240; DOT±4BA240; DOT±4BW240; DOT±4E240; DOT±9, DOT±39. ing mixture) (R±500)(Note 8). 1,1±Difluoroethane (R±152a) (see Note 79 ...... DOT±3A150; DOT±3AA150; DOT±3B150;DOT±4B150; DOT±4BA225; DOT± 8). 4BW225; DOT±3E1800; DOT±3AL150. 1,1±Difluoroethylene (R±1132A) ...... 73 ...... DOT±3A2200, DOT±3AA2200, DOT±3AX2200, DOT±3AAX2200, DOT±3T2200, DOT±39. Dimethylamine, anhydrous ...... 59 ...... DOT±3A150; DOT±3AA150; DOT±3B150; DOT±4B150 DOT±4BA225; DOT± 4BW225; ICC±3E1800. Ethane (see Note 8) ...... 35.8 ...... DOT±3A1800; DOT±3AX1800; DOT±3AA1800; DOT±3AAX1800; DOT±3; DOT±3E1800; DOT±3T1800; DOT±39; DOT±3AL1800. Ethane (see Note 8) ...... 36.8 ...... DOT±3A2000; DOT±3AX2000; DOT±3AA2000; DOT±3AAX2000; DOT±3T2000; DOT±39; DOT±3AL2000. Ethylene (see Note 8) ...... 31.0 ...... DOT±3A1800; DOT±3AX1800 DOT±3AA1800; DOT±3AAX1800; DOT±3; DOT± 3E1800; DOT±3T1800; DOT±39; and DOT±3AL1800 . Ethylene (see Note 8) ...... 32.5 ...... DOT±3A2000; DOT±3AX2000; DOT±3AA2000; DOT±3AAX2000; DOT±3T2000; DOT±39; and DOT±3AL2000. Ethylene (see Note 8) ...... 35.5 ...... DOT±3A2400; DOT±3AX2400; DOT±3AA2400; DOT±3AAX2400; DOT±3T2400; DOT±39; DOT±3AL2400. Hydrogen chloride, anhydrous ...... 65 ...... DOT±3A1800; DOT±3AA1800; DOT±3AX1800; DOT±3AAX1800; DOT±3; DOT±3T1800; DOT±3E1800. Hydrogen sulfide (see Note 10) ...... 62.5 ...... DOT±3A480; DOT±3AA480; DOT±3B480; DOT±14A480; DOT±4B480; DOT± 4BA480; DOT±4BW480.; DOT±3E1800; DOT±3AL480. Insecticide, gases liquefied (See Notes Not liquid full at 130 DOT±3A300; DOT±3AA300; DOT±3B300; DOT±4B300; DOT±4BA300; DOT± 8 and 12). °F. 4BW300; DOT±9; DOT±40; DOT±41; DOT±3E1800. Liquefied nonflammable gases, liquid Not liquid full at 130 Specification packaging authorized in paragraph (a)(1) of this section and DOT± other than classified flammable, cor- °F. 3HT; DOT 4D; DOT±4DA; DOT±4DS. rosive, toxic & mixtures or solution thereof filled w/nitrogen carbon diox- ide, or air (see Notes 7 and 8). Methyl acetylene±propadiene, mixtures, Not liquid full at 130 DOT±4B240 without brazed seams; DOT±4BA240 without brazed seams; DOT± stabilized (see Note 5). °F. 3A240; DOT±3AA240; DOT±3B240; DOT±3E1800;DOT±4BW240; DOT± 4E240; DOT±4B240ET;DOT±4;DOT±41; DOT±3AL240. Methyl chloride ...... 84 ...... DOT±3A225; DOT±3AA225; DOT±3B225; DOT±4A225; DOT±4B225; DOT± 4BA225; DOT±4BW225; DOT±3; DOT±4; DOT±38; DOT±3E1800; DOT± 4B240ET. Cylinders complying with DOT±3A150; DOT±3B150; DOT±4A150, and DOT± 4B150 manufactured prior to Dec. 7, 1936 are also authorized. Methyl mercaptan ...... 80 ...... DOT±3A240; DOT±3AA240; DOT±3B240; DOT±4B240; DOT±4B240ET; DOT± 3E1800; DOT±4BA240; DOT±4BW240. Nitrosyl chloride ...... 110 ...... DOT±3BN400 only. Nitrous oxide (see Notes 7, 8, and 11) 68 ...... DOT±3A1800; DOT±3AX1800; DOT±3AA1800; DOT±3AAX1800; DOT±3; DOT±3E1800; DOT±3T1800; DOT±3HT2000; DOT±39; DOT±3AL1800. Nitrous oxide, refrigerated liquid (see DOT±4L. paragraph (e) of this section.). Refrigerant gas, n.o.s. or Dispersant Not liquid full at 130 DOT±3A240; DOT±3AA240; DOT±3B240; DOT±3E1800; DOT±4A240; DOT± gas, n.o.s. (see Notes 8 and 13). °F. 4B240; DOT±4BA240; DOT±4BW240; DOT±4E240; DOT±9; DOT±39; and DOT±3AL240. Sulfur dioxide (see note 8) ...... 125 ...... DOT±3A225; DOT±3AA225; DOT±3B225; DOT±4A225; DOT±4B225; DOT± 4BA225; DOT±4BW225; DOT±4B240ET; DOT±3; DOT±4; DOT±38; DOT±39; DOT±3E1800; and DOT±3AL225. Sulfur hexafluoride ...... 120 ...... DOT±3A1000; DOT±3AA1000; DOT±3AAX2400; DOT±3; DOT±3AL1000; DOT± 3E1800; DOT±3T1800. Sulfuryl fluoride ...... 106 ...... DOT±3A480; DOT±3AA480; DOT±3E1800; DOT±4B480; DOT±4BA480; DOT± 4BW480. Tetrafluoroethylene/inhibit ...... 90 ...... DOT±3A1200; DOT±3AA1200; DOT±3E1800. Trifluorochloroethylene, inhibited ...... 115 ...... DOT±3A300; DOT±3AA300; DOT±3B300; DOT±4A300; DOT±4B300; DOT± 4BA300; DOT±4BW300; DOT±3E1800. Trimethylamine, anhydrous ...... 57 ...... DOT±3A150; DOT±3AA150; DOT±3B150; DOT±4B150; DOT±4BA225; DOT± 4BW225; DOT±3E1800. Vinyl chloride (see Note 5) ...... 84 ...... DOT±4B150 without brazed seams; DOT±4BA225 without brazed seams; DOT± 4BW225; DOT±3A150; DOT±3AA150; DOT±3E1800; DOT±3AL150. Vinyl fluoride, inhibited ...... 62 ...... DOT±3A1800; DOT±3AA1800; DOT±3E1800; DOT±3AL1800. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58489

Maximum permitted filling Containers marked as shown in this column or of the same type with higher Kind of gas density (percent) service pressure must be used except as provided in §§ 173.301(1), (See Note 1) 173.301(a)(4) (see notes following table)

Vinyl methyl ether, inhibited (see Note 68 ...... DOT±4B150, without brazed seams; DOT±4BA225 without brazed seams; 5). DOT±4BW225; DOT±3A150; DOT±3AA150; DOT±3B1800; DOT±3E1800. Note 1: ``Filling density'' means the percent ratio of the weight of gas in a container to the weight of water that the container will hold at 60 °F. (1 lb of water=27.737 cubic inches at 60 °F.). Note 2: Cylinders purchased after Oct. 1, 1944, for the transportation of chlorine must contain no aperture other than that provided in the neck of the cylinder for attachment of a valve equipped with an approved pressure relief device. Cylinders purchased after Nov. 1, 1935, and filled with chlorine must not contain over 150 pounds of gas. Note 3: [Reserved] Note 4: Special carbon dioxide mining devices containing a heating element and filled with not over 6 pounds of carbon dioxide may be filled to a density of not over 85 percent, provided the cylinder is made of steel with a calculated bursting pressure in excess of 39,000 psi, be fitted with a frangible disc that will operate at not over 57 percent of that pressure, and be able to withstand a drop of 10 feet when striking crosswise on a steel rail while under a pressure of at least 3,000 psi. Such devices must be shipped in strong boxes or must be wrapped in heavy burlap and bound by 12-gauge wire with the wire completely covered by friction tape. Wrapping must be applied so as not to interfere with the function- ing of the frangible disc pressure relief device. Shipments must be described as ``liquefied carbon dioxide gas (mining device)'' and marked, la- beled, and certified as prescribed for liquefied carbon dioxide. Note 5: All parts of valve and pressure relief devices in contact with contents of cylinders must be of a metal or other material, suitably treated if necessary, which will not cause formation of any acetylides. Note 6: [Reserved] Note 7: Specification 3HT cylinders for aircraft use only, having a maximum service life of 24 years. Authorized only for nonflammable gases. Cylinders must be equipped with pressure relief devices only of the frangible disc type which meet the requirements of § 173.301(f) Each fran- gible disc must have a rated bursting pressure which does not exceed 90 percent of the minimum required test pressure of the cylinder. Discs with fusible metal backing are not permitted. Cylinders may be shipped only when packed in strong outside packagings. Note 8: See § 173.301(a)(10). Note 9: [Reserved] Note 10: Each valve outlet must be sealed by a threaded cap or a threaded solid plug. Note 11: Must meet the valve and cleaning requirements in § 173.302(b). Note 12: For an insecticide gas which is nontoxic and nonflammable, see § 173.305(c). Note 13: For a refrigerant or dispersant gas which is nontoxic and nonflammable, see § 173.304(d).

(3) The internal volume of a Maximum Maximum Specification 39 cylinder may not the filling the filling exceed 75 cubic inches for a liquefied density in density in Minimum specific gravity of liq- percent of Minimum specific gravity of liq- percent of flammable gas. uid material at 60 °F the water- uid material at 60 °F the water- (b) [Reserved] weight ca- weight ca- (c) Verification of content in cylinder. pacity of the pacity of the Except as noted in paragraph (d)(4) of cylinder cylinder this section, the amount of liquefied gas filled into a cylinder must be by weight 0.290 to 0.306 ...... 27 0.601 to 0.608 ...... 54 or, when the gas is lower in pressure 0.307 to 0.322 ...... 28 0.609 to 0.617 ...... 55 0.323 to 0.338 ...... 29 0.618 to 0.626 ...... 56 than required for liquefaction, a 0.339 to 0.354 ...... 30 0.627 to 0.634 ...... 57 pressure-temperature chart for the 0.355 to 0.371 ...... 31 specific gas may be used to ensure that 0.372 to 0.398 ...... 32 (2) Subject to § 173.301a(d), any the service pressure at 21° C (70° F) 0.399 to 0.425 ...... 33 times 5/4 will not be exceeded at 54° C 0.426 to 0.440 ...... 34 filling density percentage prescribed in (130° F). The weight of liquefied gas 0.441 to 0.452 ...... 35 this section is authorized to be filled into the container also must be 0.453 to 0.462 ...... 36 increased by 2 for liquefied petroleum checked, after disconnecting the 0.463 to 0.472 ...... 37 gas in specification 3 cylinders or in cylinder from the filling line, by the use 0.473 to 0.480 ...... 38 specification 3A cylinders marked for 0.481 to 0.488 ...... 39 of a proper scale. 1,800 psig, or higher, service pressure. 0.489 to 0.495 ...... 40 (3) Liquefied petroleum gas must be (d) Requirements for liquefied 0.496 to 0.503 ...... 41 petroleum gas. (1) Filling density 0.504 to 0.510 ...... 42 shipped in specification cylinders as limited as follows: 0.511 to 0.519 ...... 43 follows: 0.520 to 0.527 ...... 44 (i) Specification 3, 3A, 3AA, 3B, 3E, Maximum 0.528 to 0.536 ...... 45 3AL, 4B, 4BA, 4B240ET, 4BW, 4E, or 39 the filling 0.537 to 0.544 ...... 46 cylinders. Shipments of flammable density in 0.545 to 0.552 ...... 47 Minimum specific gravity of liq- percent of gases in 3AL cylinders are authorized uid material at 60 °F the water- 0.553 to 0.560 ...... 48 only when transported by highway, rail 0.561 to 0.568 ...... 49 weight ca- or cargo-only aircraft. pacity of the 0.569 to 0.576 ...... 50 cylinder 0.577 to 0.584 ...... 51 (ii) Additional containers may be used 0.585 to 0.592 ...... 52 within the limits of quantity and 0.271 to 0.289 ...... 26 0.593 to 0.600 ...... 53 pressure as follows:

Maximum ca- Type of container pacity cubic Maximum charging pressureÐpsig inches

DOT±2P or DOT±2Q (see Note 1) ...... 31.83 45 psig at 70 °F. and 105 psig at 130 °F. (see Note 2). 58490 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Maximum ca- Type of container pacity cubic Maximum charging pressureÐpsig inches

DOT±2P or DOT±2Q (see Note 1) ...... 31.83 35 psig at 70 °F. and 100 psig at 130 °F. Note 1: Containers must be packed in strong wooden or fiber boxes of such design as to protect valves from damage or accidental functioning under conditions normally incident to transportation. Each completed container filled for shipment must have been heated until its contents reach a temperature of 130 °F., without evidence of leakage, distortion, or other defect. Each outside shipping container must be plainly marked ``IN- SIDE CONTAINERS COMPLY WITH PRESCRIBED SPECIFICATIONS.'' Note 2: A container must be equipped with a pressure relief device which will prevent rupture of the container and dangerous projection of a closing device when exposed to fire.

(4) Verification of content. Cylinders tube from the top of the boss through (i) DOT 4L cylinders conforming to with a water capacity of 200 pounds or which the tube is inserted to the proper the provisions of this paragraph are more and for use with a liquefied level of the liquid in the container. The authorized. petroleum gas with a specific gravity at length of each dip tube shall be checked (ii) Each cylinder must be protected ° 60 F. of 0.504 or greater may have the when installed by weighing each with at least one pressure relief device quantity of their contents determined by container after filling except when and at least one frangible disc using a fixed length dip tube gauging installed in groups of substantially conforming to § 173.301(f) and device. The length of the dip tube shall identical containers in which case one paragraph (a)(2) of this section. The be such that when a liquefied petroleum of each 25 containers shall be weighed. relieving capacity of the pressure relief gas, with a specific volume of 0.03051 The quantity of liquefied gas in each ° device system must be equal to or cu. ft./lb. at a temperature of 40 F., is container must be checked by means of greater than that calculated by the filled into the container the liquid just the dip tube after disconnecting from applicable formula in paragraph 5.9 of reaches the bottom of the tube. The the filling line. The outlet from the dip CGA Pamphlet S–1.1. weight of this liquid may not exceed 42 tube shall be not larger than a No. 54 percent of the water capacity of the (iii) The temperature and pressure of drill size orifice. A container the gas at the time the shipment is container which must be stamped representative of each day’s filling at thereon. The length of the dip tube, offered for transportation may not each charging plant shall have its ° ° expressed in inches carried out to one exceed ¥18 C (0 F) and 20 bar (290 contents checked by weighing after ° decimal place and prefixed with the psig) for carbon dioxide and ¥15.6 C disconnecting from the filling line. ° letters ‘‘DT’’ shall be stamped on the (+4 F) and 20 bar(290 psig) for nitrous container and on the exterior of (e) Carbon dioxide, refrigerated liquid oxide. Maximum time in transit may not removable type dip tube; for the or nitrous oxide, refrigerated liquid. (1) exceed 120 hours. purpose of this requirement the marked The following provisions apply to (2) The following pressure relief length shall be expressed as the distance carbon dioxide, refrigerated liquid and device settings, design service measured along the axis of a straight nitrous oxide, refrigerated liquid: temperatures and filling densities apply:

Maximum permitted filling density (percent by weight) Pressure relief device setting maximum start-to discharge gauge pressure in bar (psig) Carbon dioxide, refrigerated liquid Nitrous oxide, refrigerated liquid

7.2 bar (105 psig) ...... 108 ...... 104 11.7 bar (170 psig) ...... 105 ...... 101 16 bar (230 psig) ...... 104 ...... 99 20 bar (295 psig) ...... 102 ...... 97 25 bar (360 psig) ...... 100 ...... 95 31 bar (450 psig) ...... 98 ...... 83 37 bar (540 psig) ...... 92 ...... 87 43 bar (625 psig) ...... 86 ...... 80 Design service temperature °C (°F) ...... ¥196 °C (¥320 °F) ...... ¥196 °C (¥320 °F)

34. Section 173.304b would be added (1) The cylinder may not be liquid full (4) The pressure in a cylinder to read as follows: at 55 °C (131 °F). In addition, for a low containing a high pressure liquefied pressure liquefied compressed gas, the compressed gas at 65 °C (149 °F) or low § 173.304b Additional requirements for vapor space must be at least 5% of the pressure liquefied compressed gas at 55 shipment of liquefied compressed gases in cylinder internal volume at 50 °C (122 ° ° metric-marked cylinders. C (131 F) may not exceed the values °F). in the following table: (a) General requirements. Liquefied (2) A cylinder with a marked test gases must be offered for transportation, pressure greater than or equal to 35 bar Percentage of subject to the requirements in this (508 psi) is authorized for transportation Division cylinder's of Division 2.1, 2.2, and 2.3, gases marked test section, §§ 173.301, 173.301b and pressure 173.304, in the following metric-marked Hazard Zone B, C or D gas. cylinders: DOT 3M, 3FM, 3ALM, and (3) A DOT 3ALM, 3M, or 3FM 2.3, Zone A ...... 63 4M. A filling factor must be calculated cylinder with a marked test pressure 2.3, Zone B, C ...... 70 for each liquefied compressed gas to greater than or equal to 200 bar (2900 2.1/5.1; 2.3, Zone D ...... 78 meet the following conditions: psi) is authorized for transportation of a 2.2 ...... 100 Division 2.3 Hazard Zone A gas. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58491

(5) Vapor pressure may not exceed, at may be mixed with a non-flammable leakages. Transportation in DOT 3AL the maximum anticipated temperature compressed gas. This mixture must not and 3ALM cylinders is authorized only during transportation, the cylinder’s contain more than 20 percent by weight by highway or rail. Each cylinder must marked test pressure. of organic phosphate and must be be cleaned in compliance with the (6) Cylinder valve and fittings must be packaged in specification 3A240, requirements of Federal Specification rated at or above the cylinder’s burst 3AA240, 3B240, 4A240, 4B240, RR–C–901c, paragraphs 3.7.2 and 3.8.2. pressure. The suitability of the cylinder, 4BA240, or 4BW240 cylinders; or any Cleaning agents equivalent to those valve and fitting materials must be 3M, 3FM, or 4M cylinders with a specified in RR–C–901b may be used; checked, at the maximum anticipated marked test pressure of at least 25 bar however, any cleaning agent must not temperature during transportation, for (363 psig) or greater; meeting the be capable of reacting with oxygen. One operation. following requirements: cylinder selected at random from a (b) A DOT 3FM cylinder may not be (a) Each cylinder may be filled with group of 200 or less and cleaned at the used for a material that has a primary not more than 5 kg (11.0 pounds) of the same time must be tested for oil or subsidiary hazard of Class 8, mixture, to a maximum filling density of contamination in accordance with hydrogen sulfide or other sulfide not more than 80 percent of the water Specification RR–C–901c paragraph bearing compounds, carbon dioxide, capacity; 4.4.2.3 and meet the standard of carbon monoxide, atmospheric gases (b) No cylinder may be equipped with cleanliness specified therein. with a dew point above ¥50 °C (¥58 an eduction tube or a fusible plug; 40. Section 173.337 would be revised °F), or any other material where the (c) No cylinder may be equipped with to read as follows: addition of water may make the material any valve unless the valve is a type corrosive. approved by the Associate § 173.337 Nitric oxide. (c) A DOT 3FM or 3ALM cylinder Administrator for Hazardous Materials Nitric oxide must be packed in may not be used for reclaimed Safety; Specification 3A1800, 3AA1800, refrigerant gases. (d) Cylinders must be overpacked in 3E1800, or 3AL1800 cylinders; or 3M, a box, crate or other strong outside 3ALM, or 3FM cylinders with a marked § 173.305 [Amended] packaging conforming to the test pressure of 200 bar (2900 psig) or 35. In § 173.305, paragraph (b) would requirements of § 173.25 and arranged greater filled to a pressure of not more be amended by revising the reference to protect each valve or other closing than 52 bar (750 psi) at 21 °C (70 °F). ‘‘173.301(e)’’ to read ‘‘173.301a(c)’’. device from damage. Except as provided Cylinders must be equipped with a § 173.306 [Amended] in paragraph (e) of this section, no more stainless steel valve and valve seat than four cylinders may be packed in a which will not be deteriorated by 36. In 173.306, the following changes strong outside packaging. Each strong contact with nitric oxide or nitrogen would be made: dioxide. Cylinders or valves may not be a. Paragraph (d)(3)(ii) would be outside packaging with its closing equipped with pressure relief devices of amended by revising the reference device protection must be sufficiently any type. Valve outlets must be sealed ‘‘§ 173.301’’ to read ‘‘§ 173.301a or strong to protect all parts of each by a solid threaded cap or plug and an § 173.301b’’. cylinder from deformation or breakage if b. Paragraph (g)(5) would be amended the completed package is dropped 1.8 m inert gasketing material. In addition— (a) Transportation in 3AL or 3ALM by revising the reference ‘‘§ 173.301(k)’’ (6 feet) onto a nonyielding surface and cylinders is authorized only by highway to read ‘‘§ 173.301(a)(10)’’. impacted at the package’s weakest 37. In 173.315, in paragraph (a), in point; or rail. (b) Each cylinder must be cleaned in Note 2 following the table, the reference (e) Cylinders may be packed in strong compliance with the requirements of ‘‘§ 173.301(d)’’ would be revised to read wooden boxes with valves or other Federal Specification RR–C–901c, ‘‘paragraph (p) of this section’’ and closing devices protected from damage, paragraphs 3.7.2 and 3.8.2. Cleaning paragraph (p) would be added to read as with not more than twelve cylinders in agents equivalent to those specified in follows: one outside wooden box. An outer fiberboard box may be used when not RR–C–901c may be used; however, any § 173.315 Compressed gases in cargo more than four such cylinders are to be cleaning agent must not be capable of tanks and portable tanks. shipped in one packaging. Valves must reacting with oxygen. One cylinder * * * * * be adequately protected. Box and valve selected at random from a group of 200 (p) Manifolding is authorized for protection must be of strength sufficient or less and cleaned at the same time cargo tanks containing anhydrous to protect all parts of inner packagings must be tested for oil contamination in ammonia provided that each individual and valves from deformation or accordance with Specification RR–C– cargo tank is equipped with a pressure breakage resulting from a drop of at least 901C paragraph 4.4.2.3 and meet the relief valve or valves and gauging 1.8 m (6 feet) onto a nonyielding standard of cleanliness specified devices as required by paragraphs (h) surface, impacting at the weakest point. therein. and (i) of this section. Each valve shall 39. Section 173.336 would be revised be tightly closed while the cargo tank is to read as follows: PART 177ÐCARRIAGE BY PUBLIC in transit. Each cargo tank must be filled HIGHWAY § 173.336 Nitrogen dioxide, liquefied, or separately. dinitrogen tetroxide, liquefied. 41. The authority citation for Part 177 38. Section 173.334 would be revised would continue to read as follows: to read as follows: Nitrogen dioxide, liquefied, or dinitrogen tetroxide, liquefied, must be Authority: 49 U.S.C. 5101–5127, 49 CFR § 173.334 Organic phosphates mixed with packaged in specification cylinders as 1.53. compressed gas. prescribed in § 173.192. Specification 42. In § 177.840, paragraph (a)(1) Hexaethyl tetraphosphate, parathion, cylinders prescribed in § 173.192 with would be revised to read as follows: tetraethyl dithio pyrophosphate, valve removed are authorized. Each tetraethyl pyrophosphate, or other valve opening must be closed by means § 177.840 Class 2 (gases) materials. Division 6.1 organic phosphates of a solid metal plug with tapered * * * * * (including a compound or mixture), thread properly luted to prevent (a) * * * 58492 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

(1) Cylinders. Cylinders containing § 178.3 [Amended] § 178.35 General requirements for Class 2 (gases) materials shall be 44. In § 178.3, paragraph (a)(1) would specification cylinders. securely lashed in an upright position, be amended by removing the wording * * * * * loaded in racks, or packed in boxes or ‘‘DOT 4B240ET’’ and adding the (f) * * * wording ‘‘DOT 3M’’, in its place. crates and securely attached to the (3) Marking exceptions. A DOT 3E motor vehicle to prevent the cylinders § 178.35 [Amended] cylinder is not required to be marked from being shifted, overturned or 45. In § 178.35, the following changes with an inspector’s mark or a serial ejected from the vehicle. A cylinder would be made: number. containing a Class 2 material may be a. In paragraph (b) introductory text, * * * * * loaded in a horizontal position provided the wording ‘‘§ 173.300b of this that the cylinder is designed so that the subchapter’’ would be revised to read §§ 178.36, 178.37, 178.38, 178.39, 178.45 inlet to the pressure relief device is ‘‘subpart I of part 107 of this chapter’’. [Removed] located in the vapor space and the b. In paragraph (b)(1), the wording 47. In subpart C, §§ 178.36, 178.37, cylinder is properly secured and lashed. ‘‘§ 173.300a of this subchapter’’ would 178.38, 178.39, and 178.45 would be * * * * * be revised to read ‘‘subpart I of part 107 removed. of this chapter’’. c. In paragraph (e), the wording 48. In § 178.46(a)(4), in Table 2, the PART 178ÐSPECIFICATIONS FOR entry ‘‘6351-T6’’ would be removed and PACKAGINGS ‘‘§§ 173.34 and 173.301’’ would be revised to read ‘‘§ 173.301’’. Table 1 would be revised to read as follows: 43. The authority citation for part 178 d. In paragraph (f)(2)(ii), the would continue to read as follows: parenthetical wording ‘‘(§ 178.44)’’ and § 178.46 Specification 3AL seamless ‘‘(§ 178.45)’’ would be removed. aluminum cylinders. Authority: 49 U.S.C. 5101–5127; 49 CFR 46. In addition, in § 178.35, paragraph 1.53. (f)(3) would be revised to read as (a) * * * follows: (4) * * *

TABLE 1.ÐALUMINUM [Heat or Cast Analysis for Aluminum; similar to ``Aluminum Association 1 '' Alloy 6061 Chemical Analysis in Weight Percent 2]

Other Si Fe Cu Mn Mg Cr Zn Ti Pb Bi min/max max min/max max min/max min/max max max max max Each Total Al max max

0.40/0.8 ...... 0.7 0.15/0.4 0.15 0.8/1.2 0.04/0.35 0.25 0.15 0.005 0.005 0.05 0.15 Bal. 1 The ``Aluminum Association'' refers to ``Aluminum Standards and Data 1993'', published by the Aluminum Association Inc. 2 Except for ``Pb'' and ``Bi'', the chemical composition corresponds with that of Table 1 of ASTM B221 for Aluminum Association alloy 6061.

* * * * * paragraphs (b) through (g) of this section The temperature on quenching shall be apply to the manufacture of cylinders to appropriate for the material of §§ 178.50, 178.51 and 178.55 [Removed] the DOT 3M, 3ALM, 3FM and 4M construction but may not exceed 957°C 49. Sections 178.50, 178.51, and specifications prescribed in §§ 178.70 (1750°F). 178.55 would be removed. through 178.81. The requirements for (2) Normalizing heat treatment means heating a ferrous alloy to a suitable § 178.56 [Amended] design qualification tests and production tests and verifications temperature above its transformation 50. In § 178.56, paragraph (b) would prescribed in paragraphs (h) and (i) of temperature, not to exceed 957°C be amended by revising the wording this section apply only when required (1750°F), and then cooling it in air to ‘‘Table 1 of Appendix A to this part’’ to by the individual specification. All ambient temperature. read ‘‘Table 1 of Appendix A to this specification requirements are (3) Annealing heat treatment means subpart’’. minimum requirements. heating to and holding at a suitable § 178.60 [Amended] (b) Definitions. For purposes of this temperature and then cooling to subpart— facilitate cold working. 51. In § 178.60, paragraph (b) would Associate Administrator means the (4) Stress relieving heat treatment be amended by revising the wording Associate Administrator for Hazardous means heating to a suitable temperature, ‘‘Table 1 of Appendix A to this part’’ to Materials Safety. holding long enough to reduce residual read ‘‘Table 1 of Appendix A to this Design qualification tests means a stresses and then cooling slowly enough subpart’’. series of tests, including the cycle, burst to minimize the development of new § 178.61 [Removed] and puncture resistance test, that residual stresses. measure the structural integrity of a Lot means a group of cylinders 52. Section 178.61 would be removed. cylinder design or significant design successively produced in a work shift of § 178.68 [Removed] change. not more than 10 hours of continuous 53. Section 178.68 would be removed. Heat treatment means heating and operation having— 54. Section 178.69 would be added to cooling a solid metal or alloy in such a (1) The same specified size and Subpart C to read as follows: way as to obtain desired conditions or configuration, within the parameters of properties. In addition: ‘‘significant change’’ to an original § 178.69 Applicability and design criteria (1) Quench and temper heat treatment design as defined in this section; for all metric-marked DOT specification means the process of heat treating and (2) The same specified material of cylinders. cooling cylinders by liquid quenching. construction (i.e. cast or heat); (a) Applicability. The definitions and The liquid must have a cooling rate of (3) The same process of manufacture; general requirements prescribed in less than 80 percent of that of water. and Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58493

(4) Been subjected to similar inspection agency approved under (13) Prepare a report containing, at a conditions of time, temperature, cooling § 107.803 of this chapter. minimum, the information required by rate, and atmosphere during heat (d) Authorized material and material the applicable provisions of this subpart treatment. identification. (1) Material of and the information listed in CGA Plugged cylinder is a cylinder with a construction must be of uniform quality. Pamphlet C–11 and provide the report permanent end closure achieved by the (2) Materials with seams, cracks, to the manufacturer and, upon request, insertion of a threaded plug. laminations or other defects likely to to the purchaser. The inspector must Proof pressure test means a pressure weaken the finished cylinder may not retain the reports required by this test by interior pressurization without be used. section and the applicable individual the determination of the cylinder’s (3) Materials must be identified with specification for 15 years from the expansion. the heat or cast code by a suitable original test date on the cylinder. Each Settled pressure, (formerly referred to method during manufacture. If the heat report must be legible and in English; as service pressure) means the pressure or cast identification is permanently and of the contents of the cylinder at 15 °C stamped on the cylinder, it must be (14) Certify that all cylinders (59 °F). stamped in an area other than the represented by the test report meet all Significant change to an original sidewall of the cylinder. applicable requirements of the design means— (e) Duties of the inspector. The specification through inspection, (1) A 10 percent or greater change in inspector shall determine that each verification, or any other action required cylinder wall thickness, test pressure or cylinder conforms to the requirements to assure compliance. diameter; in this section and the applicable (f) Threads. Threads must conform to (2) A 30 percent or greater change in individual specification. In making the following: water capacity or base thickness; these determinations, the inspector (1) Each thread must be clean cut, (3) Any change in specified material; shall: even, without checks and to gauge. (4) An increase in the diameter of (1) Verify that all procedures for (2) Taper threads must conform to one openings of over 100 percent; or obtaining and reporting the chemical of the following— (5) Any change in the number of analysis are in accordance with the (i) American Standard Pipe Thread openings. appropriate requirements of ASTM Spun cylinder is a cylinder with an (NPT) type must conform to the Chemical Analysis Test Methods and requirements of Federal Standard H–28, end closure that has been welded by the that the chemical analysis is in spinning process. Section 7 (FED–STD–H28/7A); conformance with the individual (ii) National Gas Taper thread (NGT) Volumetric expansion test means a specification by— pressure test by interior pressurization type must conform to the requirements (i) Obtaining a certified cast or heat of Federal Standard H–28 Sections 7 to measure a cylinder’s expansion by analysis from the material producer, using the water jacket or direct (FED–STD–H28/7A), and 9 (FED–STD– supplier, or from the cylinder H28/9A); expansion methods. manufacturer, for each heat or cast of (1) Water jacket method means a (iii) Other taper threads conforming to material; or other standards may be used provided volumetric expansion test to determine (ii) Peforming or obtaining a check the total thread shear strength is not less a cylinder’s total and permanent (solid metal) analysis, when such check than that specified for NPT threads. expansion by measuring the difference analysis is required; (3) Straight threads must conform to between the volume of water the (2) Witness that the applicable design one of the following— cylinder externally displaces at test qualification tests prescribed in pressure and the volume of water the paragraph (h) of this section for each (i) National Gas Straight Thread (NGS) cylinder externally displaces at ambient new cylinder design or a significant type must conform to the requirements pressure change to an original design have been of Federal Standard H–28, Sections 7 (2) Direct expansion method means a performed with satisfactory results; (FED–STD–H28/7A), and Section 9 volumetric expansion test to calculate a (3) Select samples for all tests; (FED–STD–H28/9A); cylinder’s total and permanent (4) Select samples for the check (ii) Unified Thread (UN) type must expansion by measuring the amount of analysis, when performed; conform to the requirements of Federal water forced into a cylinder at test (5) Verify that identification of Standard H–28, Section 2 (FED–STD– pressure, adjusted for the material is proper; H28/2B); compressibility of water, as a means of (6) Verify that the manufacturer (iii) Controlled Radius Root Thread determining the expansion. makes a complete internal inspection of (UNJ) type must conform to the (c) Inspection and analyses. the cylinder body before closing the requirements of Federal Standard H–28, Inspection and analyses must be in ends; Section 4 (FED–STD–H28/4); compliance with the following: (7) Verify that wall thickness was (iv) Other straight thread types (1) Inspections and verifications, as measured and that the specified conforming to other standards may be required, must be performed by a minimum thickness is met; used provided the requirements of hazmat employee of an independent (8) Verify that the heat treatment is paragraph (f)(4) of this section are met. inspection agency that has been proper; (4) All straight threads must have at approved in writing by the Associate (9) Witness each test (except that least 4 engaged threads, a tight fit, and Administrator in accordance with results of the hardness test and the grain calculated shear strength of at least 10 § 107.803 of this chapter. size test may be verified); times the shear stress at the test pressure (2) Chemical analyses and tests must (10) Verify by gauge that threads are of the cylinder. Shear strength must be be made in the United States or at a in conformance with the specification; calculated by using the appropriate facility located outside the United States (11) Verify that each cylinder is thread shear area in accordance with that is approved in writing by the marked in accordance with the Federal Standard H–28 Section 2, Associate Administrator in accordance applicable specification; Appendix B (FED–STD–H28/2B with § 107.807 of this chapter and under (12) Verify that gauges and test Appendix B). Gaskets are required to the supervision of an independent equipment are properly calibrated; prevent leakage. 58494 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

(g) Pressure relief devices and no movement during impact. The greater than four times the actual wall protection for valves, pressure relief puncturing probe must consist of a 2 thickness. devices, fittings and connections. (1) inch x 2 inch x 1⁄4 inch angle iron, its (iii) For a cylinder with a water Pressure relief devices on cylinders end sawed off at 90° to form a sharp capacity of 454 kg (1,000 pounds) or must conform to the requirements of corner. The probe must have a weight less, the flattening or bend test must be § 173.301(f) of this subchapter. attached that is equivalent to the weight performed on a cylinder selected from (2) Protection for valves, pressure of the cylinder including the heaviest each lot. relief devices, fittings and connections material to be shipped. The probe must (iv) For a cylinder with a water must conform to the requirements of be dropped from a minimum height of capacity exceeding 454 kg (1,000 § 173.301(h)(2) of this subchapter. 2.1m (7 feet) from the top surface of the pounds), the flattening or bend test must (h) Design qualification tests. Each cylinder, perpendicular to the cylinder’s be performed on a cylinder or on a test cylinder design and each cylinder longitudinal centerline, and must ring out of each lot when cylinders are design having a ‘‘significant change’’ impact the cylinder sidewall on the top heat treated in a batch furnace, or from from the original design must be of the cylinder. The sharp corner of the one cylinder or test ring out of each four subjected to the design qualification angle iron must impact the centerline of hours or less of production when the tests prescribed in this paragraph (h). the cylinder. (See Figure 1 of this cylinders are heat treated in a (1) Cycle test. The cycle test must be section.) continuous furnace. performed on a cylinder after it has (ii) There must be no leakage as a (v) A retest using one additional set of passed the volumetric expansion test, by result of the impact. The cylinder must specimens is authorized if a test was subjecting it to successive hydraulic be leak tested, using compressed gas considered improper due to the pressurization and depressurization charged to 2/3 of the marked test presence of a fault in the equipment or cycles. The rate of cycling may not pressure. specimen preparation. Retest specimens exceed 10 cycles per minute. (4) Acceptable test results. Acceptable must be taken from this same cylinder (i) The lower cyclic pressure may not design qualification test results are as if space permits or from another exceed 10 percent of the upper cyclic prescribed in the individual cylinder randomly selected cylinder in the same pressure. The upper cyclic pressure specification. lot. (2) Grain size. For cylinders made must be at least equal to the prescribed (i) Production tests and verifications. from nickel, preparation and minimum test pressure. When the individual specification (ii) The test cylinder must be examination of the specimen and grain requires a particular production test to subjected to a pressure exceeding 90 size calculation must be as prescribed in be performed, the test must be percent of the upper cyclic pressure for ASTM E 112. conducted on the finished cylinder as at least 20 percent of the duration of (3) Hardness test. Apparatus and prescribed in this paragraph (i). Unless each cycle. procedures must be in conformance (iii) The cycle test must be performed otherwise noted in this section, with ASTM E 18 for Rockwell C scale on at least three representative samples acceptable test results are prescribed in (HRC) hardness number or ASTM E 10 of each design or any significant change the individual cylinder specification. for Brinell hardness number (HBS). to an original design. Any lot not meeting acceptable test (4) Impact test. The impact test must (iv) All cylinders used in the cycle results must be rejected: be performed on specimens taken from test must be rendered incapable of (1) Flattening or bend test. Flattening the cylinder or, if authorized by the holding pressure following completion or bend tests must be performed, on a individual specification, from a test of the cycle test. representative completed cylinder ring, after heat treatment. Each test ring (2) Burst test. The burst test must be selected at random or, if authorized by used for the test must meet the performed on a representative the individual specification on a test requirements of paragraph (i)(7) of this completed cylinder selected at random ring, after heat treatment. Each test ring section. Impact specimens must be after heat treatment by hydraulically used for the test must meet the prepared and tested in accordance with pressurizing the cylinder to failure. The requirements of paragraph (i)(7) of this ASTM E 23 and the specific rate of pressurization may not exceed 14 section. requirements in the individual bar (200 psi) per second. Burst testing of (i) During the flattening test, the specification. A cylinder or a test ring each design or any significant change to cylinder or test ring must be flattened need represent only one of the heats in a previously tested design must be between wedge-shaped knife edges with the lot, provided the other heats in the performed on at least 3 representative the longitudinal axis of the cylinder at lot were heat treated under the same cylinders. approximately 90 degrees to the knife conditions and have previously been (3) Puncture resistance test. Each edges. For steel and nickel cylinders, tested and have passed the tests. cylinder design type intended for the the knife edges must have a 60 degree (i) For a cylinder with a water transportation of Division 2.3 gases or included angle and be rounded to a 13 capacity of 454 kg (1,000 pounds) or Division 6.1 liquids in Hazard Zones A mm (1/2 inch) radius. For aluminum less, the specimens must be taken from and B must pass the following test. cylinders, see § 178.72(i)(4). one cylinder or test ring out of each lot. Cylinders that are shipped in an (ii) A bend test in accordance with (ii) For a cylinder with a water overpack must be tested in the ASTM E 290 may be substituted for the capacity exceeding 454 kg (1,000 overpack. flattening test. Two test pieces cut from pounds), the specimens must be taken (i) The puncture resistance test must a sidewall ring or rings shall be tested. from one cylinder or test ring out of be performed on three representative The width shall be the greater of 25 mm each batch when cylinders are heat cylinders selected at random after heat (1 inch) or four times the thickness of treated in a batch furnace, or from one treatment. The cylinder must be filled the test specimen. A load shall be cylinder or test ring out of each 4 hours with water and pressurized to 2⁄3 the applied to the inside surface of the test or less of production when cylinders are marked test pressure at 21° C (70° F). piece by a mandrel at the mid-length heat treated in a continuous furnace. The cylinder must be tested on its until the interior edges are no further (5) Leakage test. Spun cylinders must sidewall, supported on an unyielding apart than the mandrel diameter. For be tested for leakage by subjecting the support and tied down so that there is steel cylinders the mandrel shall not be inside of the finished bottom to a Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58495 pressure of not less than 1⁄2 of the (A) The yield strength in tension must Should any specimen from the first test cylinder’s marked test pressure. The be the stress corresponding to a fail to meet the requirements, a second bottom must be clean and free from all permanent strain of 0.2 percent of the test may be performed taken from three moisture. Pressure must be applied, gauge length. additional cylinders selected at random using dry gas, over an area of at least six (B) For steel and nickel, the yield from the same lot. If either of the percent of the total area of the bottom strength must be determined by the additional specimens fails to meet the but not less than 19 mm (3⁄4 inch) in ‘‘offset’’ method or the extension under- requirements of CGA Pamphlet C–3, the diameter including the closure. The load method described in ASTM E 8. entire lot must be rejected. required pressure must be applied for at For aluminum material, the yield (ii) Guided bend test: Specimens must least one minute, during which time the strength must be determined by the be prepared in accordance with and outside of the bottom under test must be ‘‘offset’’ method or the extension under meet the requirements of CGA Pamphlet covered with water or other suitable load method as described in ASTM B C–3. leak detecting fluid and closely 557. (iii) Alternate guided-bend test: This examined for indication of leakage. The (C) The cross-head speed of the test may be used as an alternative to the leakage test must be performed prior to testing machine may not exceed 3 mm guided bend test specified in paragraph the closing of the cylinder. The cylinder (1⁄8 inch) per minute during the (i)(8)(ii) of this section and must be may not show any evidence of leakage. determination of yield strength, performed in accordance with CGA (6) Magnetic particle and liquid however, any test speed may be used Pamphlet C–3. The specimen shall be penetrant examinations. The apparatus until one-quarter of the specified tensile bent until the elongation at the outer and procedures for the magnetic particle strength is reached. surface, adjacent to the root of the weld, examination, wet or dry method, must (D) The specimens must be taken from between the lightly scribed gauge conform to ASTM E 709. The apparatus one cylinder selected from each lot. lines—‘‘a’’ to ‘‘b’’, shall be at least 20 and procedures for the liquid penetrant (E) When the length of the cylinder percent, except that this percentage may inspection must conform to ASTM E does not permit securing straight be reduced for steels having a tensile 165. specimens, then specimens may be strength in excess of 340 MPa (50,000 psi), as provided in table 4 of § 178.81. (7) Mechanical tests. Unless otherwise taken in any location or direction and (9) Production burst test. When specified in the individual cylinder may be straightened or flattened cold, required by a particular specification, specification, a mechanical test must be by pressure only, not by blows. The must be performed on at least one performed on a minimum of two inspector’s report must indicate that the cylinder from each lot. A cylinder used specimens taken at least 160 degrees specimens were taken and prepared in in the cycle test may be used for the apart from a representative completed this manner. production burst test. If a cylinder fails cylinder which is selected at random (F) The size of the specimen must be the production burst test, a second after pressure testing and heat one of the following— sample of three cylinders from the same treatment. For cylinders more than 2 (1) gauge length of 50 mm (2 inches) lot must be selected by the independent meters (6.5 feet) long, the mechanical and a maximum width of 38 mm (1.5 inspector. If any of these tested test may be performed on a test ring inches); (2) gauge length of 200 mm (8 inches) cylinders fail, the lot must be rejected. which has been heat treated with the and a maximum width of 38 mm (1.5 (10) Proof pressure test. The pressure completed cylinders. The test ring must inches); or for the proof pressure test must be at be at least 61 cm (24 inches) long and (3) gauge length of at least 24 times least equal to the marked test pressure must have its ends covered during heat specimen actual thickness and a and must be maintained for at least ten treatment so as to simulate the heat maximum width of 6 times actual seconds, and sufficiently longer, as treatment process of the finished thickness, provided that the cylinder necessary, to assure there is no leakage cylinder it represents. Each test ring wall is not over 4.7 mm (3⁄16 inch) thick. and no drop in pressure. The cylinder used for the test must be of the same (G) For a cylinder with a water may show no evidence of leakage or specification material, diameter and capacity exceeding 454 kg (1,000 distortion. thickness as the finished cylinder it pounds): (11) Radiographic examination. represents. A test cylinder or test ring (1) The specimens must be taken from Radiographic examination of cylinders need represent only one of the heats in one cylinder or test ring out of each must conform to the techniques and the lot provided the other heats in the batch when cylinders are heat treated in acceptability criteria set forth in CGA lot have previously been tested and a batch furnace or from one cylinder or Pamphlet C–3. When fluoroscopic have passed the tests. test ring out of each 4 hours or less of examination is used, permanent film (i) Specimens must conform to the production when cylinders are heat records need not be retained. following: treated in a continuous furnace. (12) Ultrasonic examination. The (A) The long axis of the specimen (2) The size of the specimen must be ultrasonic examination must be must be parallel to the longitudinal axis as prescribed in the individual performed on the cylindrical section of of the cylinder. specification. the completed cylinder after it has (B) The tensile specimen reduced (iii) A retest using one additional set passed the volumetric expansion test. section may not be flattened. However, of specimens is authorized if a test was Testing must be in accordance with the grip ends may be flattened to within considered improper due to a fault in Appendix B of this subpart. 25 mm (1 inch) of each end of the the equipment or specimen preparation. (13) Volumetric expansion test. After reduced section. Retest specimens must be from the same heat treatment, each cylinder must be (C) Temperatures generated during cylinder if space permits, or from subjected to an internal pressure at least the preparation of a specimen may not another randomly selected cylinder equal to the marked test pressure. The exceed 204 °C (400 °F) for steel or from the same lot. water jacket method must be performed nickel, or 121 °C (250 °F) for aluminum. (8) Mechanical tests of welds. (i) in accordance with paragraph 4 and (ii) The tensile strength, yield Tensile test: Specimens must be Appendices A and B of CGA Pamphlet strength, and elongation of the material prepared in accordance with and meet C–1. An alternative test procedure, such must be determined as follows: the requirements of CGA Pamphlet C–3. as direct expansion, may be used when 58496 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules approved in writing by the Associate to or greater than the prescribed 8. 98–09 = date of test (year and month). Administrator. If the required test minimum wall thickness. 9. 250 = water capacity (liters). pressure can not be maintained due to (2) For a DOT–4M specification 10. 5.8 = minimum guaranteed wall failure of test apparatus, the cylinder cylinder the required markings must be thickness (millimeters). must be rejected or the test must be stamped plainly and permanently on 11. SS = identification of alloy repeated at a pressure increased by 10 the shoulders, top head, neck, valve (SS:stainless steel, NI:Nickel, AL: percent of the test pressure or 7 bar (100 boss, valve protection sleeve, collar, or Aluminum CS: Carbon Steel). psi) whichever is lower. Only two similar part permanently attached to the retests are authorized. The permanent top of the cylinder. For cylinders that do 12. 56.5 = tare weight (kilograms). expansion measured at zero gauge not exceed 11.3 kg (25 pounds) water (4) Required markings must be at least pressure may not exceed 10 percent of capacity, the marking may be on the 6 mm (0.250 inch) high, except that the total measured expansion at test footring permanently attached to the cylinders having an inside diameter less pressure. cylinder. than 102 mm (4 inches) may have (j) Rejected cylinders. When a lot of (3) The required markings specified in markings that are at least 3 mm (0.116 cylinders is rejected, and reheat this paragraph (k) (3) must be stamped inch) high. treatment may correct the cause of on the cylinder in the sequence shown (5) Stamping on the side wall is rejection, the lot may be reheat treated in items 1 through 12, with no prohibited. and retested as if it were a new lot. additional information interspersed, as (6) No other markings may conflict (1) Volumetric expansion test: Reheat illustrated in the following example: with the required markings. treatment of rejected cylinders that DOT–3M/USA/M1234/SN123456/UT/ (7) Other variations in stamping failed due to excessive permanent 200BAR/IA01/98–09/250/5.8/SS/56.5 required marks is authorized only when expansion is authorized. necessitated by lack of space or as (2) Magnetic particle, liquid penetrant Where: approved in writing by the Associate and ultrasonic examinations: Any 1. DOT 3M = DOT specification number. Administrator. cylinder rejected because of cracks may 2. USA = country of manufacture. not be requalified. 3. M1234 = symbol of manufacturer (l) Coatings. Coatings on a cylinder’s (k) Markings. Required markings on assigned by the Associate exterior or interior walls are authorized, the cylinder must be in accordance with Administrator. except that the coating must not cause the following: 4. SN123456 = manufacturer’s serial markings to be illegible, obscure defects, (1) Each cylinder must be legibly and number. or allow moisture to be trapped between permanently marked by stamping on the 5. UT = stamp for non-destructive the cylinder wall and the coating. Any shoulder, top head or neck. The depth ultrasonic examination, if coating that may prevent adequate of marking must ensure that the wall applicable. visual inspection or ultrasonic thickness measured from the root of the 6. 200BAR = test pressure (bar). examination is prohibited. stamping to the interior surface is equal 7. IA01 = Independent Inspection mark. BILLING CODE 4910±60±P Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58497

Figure 1 to § 178.69 58498 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

55. Section 178.70 would be added to hemispherical, ellipsoidal, or S = MC/I Subpart C to read as follows: torispherical with a major to minor axis Where: not exceeding 2 to 1, or a dished shape S = tensile stress in MPa. § 178.70 General requirements for DOT 3 falling within these limits. Such heads series metric-marked seamless cylinders. M = bending moment in newton-mm = and bottoms must be at least the .125Wl2. (a) DOT specifications 3M (§ 178.71), prescribed minimum wall thickness of 3ALM (§ 178.72), and 3FM (§ 178.73) C=radius (D/2) of cylinder in mm. the cylindrical shell, except as follows: 4 4 cylinders must meet the requirements I=Moment of inertia=.04909 (D ¥d ) in (A) The thickness at the point of mm4. contained in this section, § 178.69, and closure of spun cylinders must be at the requirements of the applicable W=weight in newtons per mm of least 2 times the prescribed minimum cylinder length full of water. individual specification contained in sidewall thickness. §§ 178.71 through 178.73. l=length of cylinder in mm. (B) The thickness of the D=outside diameter in mm. (b) Lot size. In no case may a lot hemispherical bottoms on cylinders exceed 200 cylinders, but any cylinder d=inside diameter in mm. formed from sheet or plate must be at (iii) The following formula must be processed for use in the required least 90 percent of the prescribed used to calculate the maximum destructive testing need not be counted minimum sidewall thickness. longitudinal tensile stress due to as being one of the 200. (5) Welding or brazing for any volumetric expansion test pressure— (c) Authorized material and purpose is prohibited on cylinders identification of material. All tubing, S(MPa)=[A1P/10A2] manufactured in accordance with this Where: billet, sheet, plate or cast stock must be section. in conformance with one of the (6) Plugged cylinders are not S=tensile strength in MPa. specifications in Table 1 or 2 of A1=internal area in cross section of the authorized. 2 Appendix A of this subpart. The (e) Wall thickness. The following cylinder in mm . inspector may require a check analysis requirements apply: A2=area of metal in cross section of the to establish the heat or cast analysis (1) The minimum wall thickness for a cylinder in mm2. when necessary to meet the cylinder must be the greater of the P=volumetric expansion test pressure in requirements of § 178.69(c)(2). The thickness as determined by this bar. material may not be used if the results paragraph (e), or as required by the (f) Openings. Openings are not of such analysis indicates individual specification. permitted on the side wall and must be nonconformance with the requirements (2) For the minimum wall thickness centered on the heads. Openings may of the material specification. calculations, the following formula must not exceed the smaller of one-half of the (d) Manufacture. (1) Each cylinder be used: cylinder’s outside diameter or 200 mm must be of seamless construction with S = [P(1.3D2+0.4d2)]/(D2¥d2) (8 inches). All openings must be circular integrally formed heads and bottoms. Where: and threaded. (2) The manufacturing process must (g) Heat treatment. After forming, S = Wall stress in Mpa (psi). be capable of producing a cylinder that cylinders must be uniformly and P = Minimum test pressure in bar (psi), is free from defects likely to weaken the properly heat treated under similar as prescribed for the volumetric finished cylinder. For a cylinder with a conditions of time, temperature, cooling expansion test, but not less than 31 water capacity of more than 454 kg rate and atmosphere prior to all tests. bar (450 psi). (1000 pounds), permanent closures The furnace temperature must be formed by spinning are prohibited and D = Outside diameter in mm (inches). d = Inside diameter in mm (inches). controlled to assure a uniform process integral heads must be concave to and have sufficient instrumentation to pressure. (3) A steel cylinder longer than 2 control performance. (3) Dirt and scale must be removed to meters (6.5 feet) must meet the 56. Section 178.71 would be added to permit proper inspection. Each cylinder following additional requirements if the Subpart C to read as follows: must have a smooth and uniform finish. cylinder is horizontally supported at its Fissures, laps, tears, or other defects that two ends. The load of the cylinder § 178.71 Specification 3M; seamless steel, are likely to weaken the finished consists of the weight per unit length, in nickel and stainless steel metric-marked cylinder are not acceptable. The newtons per millimeter, of the cylinders. thickness of the treated areas must be cylindrical portion filled with water and (a) General requirements and test measured and may not be less than the pressurized to the prescribed minimum pressure. Each DOT specification 3M prescribed minimum sidewall test pressure. The wall thickness must cylinder must meet the general thickness. Machining or other treatment be increased when necessary to meet the requirements contained in §§ 178.69 of the cylinder to eliminate defects must following requirements: and 178.70 and the specific be completed before heat treatment and (i) The sum of 2 times the maximum requirements contained in this section. volumetric expansion testing. tensile stress at the mid-point of the The design test pressure must be no less (4) Head and bottom configurations unsupported length, due to bending (see than 15 bar (218 psi). must be as follows: paragraph (e)(3)(ii) of this section), plus (b) Duties of the inspector. In addition (i) Bottoms of bumped-back cylinders the maximum longitudinal stress in the to the duties prescribed in § 178.69(e), must have a minimum thickness of not same area, due to the hydrostatic an inspector must verify that the grain less than two times the prescribed pressure (see paragraph (e)(3)(iii) of this size in a 3M cylinder manufactured minimum sidewall thickness. Such section), may not exceed 80 percent of from nickel is in accordance with bottom thickness must be measured the minimum yield strength of the steel paragraph (h)(6) of this section. within an area bounded by a line as determined by the mechanical tests (c) Authorized materials and representing the points of contact prescribed in § 178.69(i)(7) and the identification of materials. Materials between the cylinder and the floor when applicable individual specification. must be in accordance with the the cylinder is in a vertical position. (ii) The following formula must be following: (ii) For heads and bottoms concave to used to calculate the maximum tensile (1) All tubing, billet, sheet, plate or pressure, the inside shape must be stress due to bending— cast stock must be in conformance with Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58499

Grade A, C, or D material specified in (ii) For steel cylinders the test 57. Section 178.72 would be added to Table 1 of Appendix A of this subpart. cylinders must withstand at least 1.6 Subpart C to read as follows: (i) Grade A material is authorized for times test pressure. steel cylinders. (h) Production tests and verification. § 178.72 Specification 3ALM; seamless aluminum metric-marked cylinders. (ii) Grade C material is authorized for The following examinations and tests stainless steel cylinders. apply. Unless otherwise noted in this (a) General requirements. Each DOT (iii) Grade D material is authorized for section, acceptable results are Specification 3ALM seamless aluminum nickel cylinders. prescribed in § 178.69. cylinder must meet the general (d) Manufacture. Spun closures for (1) Volumetric expansion test. requirements contained in §§ 178.69, nickel cylinders are prohibited. (2) Leakage test for spun cylinder. 178.70 and the specific requirements (3) Ultrasonic examination in (e) Wall thickness. (1) For cylinders contained in this section. accordance with ASTM E 213 for with a test pressure less than 93 bar (b) Capacity. The water capacity may measurement of sidewall defects: Any (1350 psi), the minimum wall must be not exceed 454 kg (1,000 pounds). cylinder having a discontinuity greater such that the wall stress at the (c) Duties of the inspector. In addition than two times in length and 10 percent prescribed minimum test pressure does to the duties prescribed in § 178.69(e), in depth of the designed minimum wall not exceed 165 MPa (24,000 psi) for the inspector must verify compliance thickness or any discontinuity greater cylinders made from Grade A or C with the provisions in paragraph (d) of than 15% of the minimum designed material and in no case may the wall this section, either by inspection or by wall thickness in depth must be thickness be less than 2mm (.078 inch). obtaining the material manufacturer’s rejected. certificate of inspection. (2) For cylinders with a test pressure (4) Mechanical test: The yield strength of 93 bar (1350 psi) or more, the (d) Authorized material and may not exceed 73 percent of the tensile identification of materials. Only the minimum wall must be such that the strength for steel cylinders, or 50 wall stress at the prescribed minimum aluminum alloy specified in Table 2 of percent of the tensile strength for nickel Appendix A to this subpart is test pressure does not exceed the cylinders. Elongation must be at least 20 following: authorized. Material must be identified percent for a 50mm (2-inch) gauge with the heat or cast code by a suitable (i) 380 MPa (55,000 psi) for cylinders length specimen or at least 10 percent made from Grade A material; method that will identify the alloy. Cast in other cases. In this instance, a stock must have uniform isotropic grain (ii) 235 MPa (34,000 psi) for cylinders flattening test or bend test is required. made from Grade C material. structure not to exceed 500 microns If elongation is at least 40 percent for maximum. (3) For cylinders made from Grade D the 50mm (2-inch) gauge length (e) Manufacture. Only the extrusion material, the minimum wall must be specimen, or at least 20 percent in other process is authorized. Closures formed such that the wall stress at the cases, a flattening test or bend test is not by spinning are prohibited. The cylinder prescribed minimum test pressure does required. not exceed 100 MPa (15,000 psi), or 50 (5) Flattening or bend test: Steel bottom must be concave to pressure. percent of the minimum tensile strength cylinders must withstand flattening to The thickness of the cylinder base may as determined by the mechanical six times wall thickness without not be less than the side wall thickness. properties tests prescribed in cracking; nickel cylinders must The bottom of the cylinder must have an § 178.69(i)(7). withstand flattening to four times wall inside shape that is torispherical, (f) Heat treatment. A cylinder made thickness without cracking. Bend test hemispherical or ellipsoidal, where the from: specimens must be free of cracking dish radius is no greater than 1.2 times (1) Grade A material must be heat when deformed around a mandrel not the inside diameter of the shell. The treated by normalizing at a metal greater in diameter than 4 times the wall knuckle radius may not be less than 12 temperature most suitable for the thickness for steel or 2 times the wall percent of the inside diameter of the material, and air cooled. Liquid thickness for nickel. shell. The interior base contour may quenching is not authorized. (6) Grain size verification: For nickel deviate from the true torispherical, Intermediate manganese steel may be cylinders, a specimen must be taken hemispherical or ellipsoidal given a quench and temper heat from the sidewall of a representative configuration, provided that— treatment. cylinder from each lot. The diameter of (1) Any area of deviation is (2) Grade C material does not require the average grain cross section may not accompanied by an increase in base heat treatment. exceed 0.065 mm (0.0026 inch). The thickness; (3) Grade D material does not require corresponding ASTM micro-grain size (2) All radii of merging surfaces are heat treatment. If the cylinder is heat number is 5.0. When the grain size in equal to or greater than the knuckle treated, the furnace atmosphere during the test cylinder exceeds this limit, the radius; and heat treatment must be sulfur-free and lot must be rejected. (3) Each design has been qualified by neutral or reducing. (7) Magnetic particle or liquid successfully passing the cycling and (g) Design qualification tests. The penetrant examination: Magnetic burst tests specified in paragraph (h) of following design qualification tests particle or liquid penetrant inspection this section. described in § 178.69 apply: must be performed on each cylinder (f) Wall thickness. The minimum wall (1) Cycle test. Cylinders representative constructed of intermediate manganese thickness must be such that the wall of the design must withstand, without steel after heat treatment to determine stress at the prescribed minimum test distortion or failure, at least 10,000 the presence of quenching cracks. pressure does not exceed 80 percent of pressurizations. Cracked cylinders must be rejected. the minimum yield strength nor 67 (2) Burst test. Representative (i) Rejected cylinders. Nickel percent of the minimum tensile strength cylinders of each design must meet the cylinders, rejected for unacceptable of the cylinder material as determined following— grain size, may be reheat treated. by the mechanical properties tests (i) For nickel cylinders the test Thereafter, the reheat treated cylinders prescribed in § 178.69(i)(7), but in no cylinders must withstand at least 2 must pass all prescribed tests including case may the minimum wall thickness times test pressure. verification of acceptable grain size. be less than 4mm (0.156 inch). 58500 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

(g) Heat treatment. Prior to any test, TABLE.ÐFLATTENING TEST heat treated and held at that each cylinder must be subjected to a temperature for a suitable period of solution heat treatment and aging Cylinder wall thicknesses Rounded time. Each cylinder must then be air treatment appropriate for the type of radius cooled under conditions recommended (inches) (inches) aluminum used. for the steel. The minimum tempering (h) Design qualification tests. The Under 0.150 ...... 0.500 temperature of the metal must be at least ° ° following design qualification tests 0.150 to 0.249 ...... 0.875 570 C (1058 F). described in § 178.69 apply: 0.250 to 0.349 ...... 1.500 (f) Design qualification tests. The 0.350 to 0.449 ...... 2.125 following design qualification tests (1) Cycle test. Cylinders representative 0.450 to 0.549 ...... 2.750 described in § 178.69 apply: of the design must withstand, without 0.550 to 0.649 ...... 3.500 (1) Cycle test. Cylinders representative distortion or failure, at least 10,000 0.650 to 0.749 ...... 4.125 of the design must withstand, without pressurizations to the prescribed distortion or failure, at least 10,000 minimum test pressure. (ii) An alternate bend test, in pressurizations to the prescribed (2) Burst test. Cylinders representative accordance with ASTM E 290 using a minimum test pressure. of the design, must have a minimum mandrel diameter not more than 6 times (2) Burst test. Cylinders representative burst of 1.6 times test pressure. the wall thickness, is authorized. This of the design, must have a minimum test may be used to qualify a lot that has (i) Production tests and verifications. burst of 1.6 times the marked test failed the flattening test. Reheat pressure. The following examinations and tests treatment is not required for this test. If apply. Unless otherwise noted in this (g) Production tests and verifications: used, this test must be performed on 2 The following examinations and tests section, acceptable results are samples from one cylinder taken at prescribed in § 178.69. apply. Unless otherwise noted in this random out of each production lot. The section, acceptable results are (1) Volumetric expansion test. test specimens shall remain uncracked prescribed in § 178.69. (2) Ultrasonic examination. The when bent inward around a mandrel in (1) Volumetric expansion test. examination must be performed in the direction of curvature of the (2) Ultrasonic examination. The accordance with ASTM E 213 for cylinder wall, until the interior edges examination must be performed in measurement of sidewall defects. Any are at a distance apart not greater than accordance with ASTM E 213 for the cylinder having a discontinuity greater the diameter of the mandrel. measurement of sidewall defects. Any than two times in length and 5 percent 58. Section 178.73 would be added to cylinder having a discontinuity greater in depth of the design minimum wall Subpart C to read as follows: than 24 mm (1 inch) in length and a thickness must be rejected. § 178.73 Specification for DOT 3FM; depth greater than 5 percent of the (3) Mechanical tests. Mechanical tests seamless steel metric-marked cylinders. design minimum wall thickness must be must be performed as follows: The two The construction of a cylinder to this rejected. tensile specimens must be one of the specification also meets the requirement (3) Hardness test. A hardness test following: Flat specimen, 50 mm (2- of draft ISO 9809–2, Transportation of must be performed on the cylindrical inch) gauge length; Flat specimen, 24t Seamless Steel Gas Cylinders—Design section of each cylinder after heat gauge length by 6t width; or Round Construction and Testing—Part 2: treatment. The tensile strength specimen, 4D gauge length with Quenched and Tempered Steel with equivalent of the hardness number diameter ‘‘D’’. When the cylinder Tensile Strength Greater Than or Equal obtained from the test may not be more sidewall is greater than 5 mm (3⁄16-inch), to 1100 MPa. than 1,140 MPa (166,000 psi). The a retest without reheat treatment using (a) General requirements and hardness number may not exceed 37 this ‘‘4D’’ specimen is authorized if the definitions. Each Specification DOT HRC or 344 HBS. If the hardness test using the 2-inch specimen fails to 3FM seamless steel cylinder must meet number is exceeded, then the lot must meet elongation requirements. The 4D the general requirements contained in be rejected. specimen must meet requirements of §§ 178.69, 178.70 and the specific (4) Mechanical tests. (i) Specimen size ASTM E 8. Tensile strength must be at requirements contained in this section. must be gauge length 50 mm (2 inches) least 260 Mpa (38000 psi). Yield (b) Authorized material and and a maximum width of 38 mm (1.5 strength must be at least 240 Mpa identification of materials. All tubing, inches). For cylinders over 454 kg (1,000 (35,000 psi). Elongation must be at least billet or cast stock must conform to pounds) water capacity, specimens may 14 percent for 50 mm (2-inch) gauge Grade B or Grade E material specified in be the Standard Round Tension length specimen, at least 10 percent for Table 1 of Appendix A of this subpart. Specimen as specified in ASTM A–370 24t by 6t specimen, and at least 14 (c) Manufacture. Closures formed by (0.357 inches minimum diameter). percent for the ‘‘4D’’ specimen. spinning are prohibited. (ii) Elongation must be at least 16 (d) Wall thickness. The minimum percent for the 50 mm (2 inches) gauge (4) Flattening and bend test. A wall thickness must be such that the length specimen. Tensile strength may flattening or bend test must be wall stress at the prescribed minimum not exceed 1,069 MPa (155,000 psi). For performed as follows: test pressure does not exceed the lesser round specimens, the minimum (i) The flattening test must be of 483 Mpa (70,000 psi) for Grade B elongation must be at least 15 percent. performed by placing the test cylinder material or 624 MPa (90,500 psi) for (5) Impact tests. (i) Three specimens between wedge-shaped knife edges Grade E material, or 67 percent of the must be impact tested per lot. Each having a 60 degree included angle, and minimum tensile strength as determined specimen must be taken from the rounded in accordance with the from the mechanical properties tests sidewall of the cylinder or test ring. The following table. The longitudinal axis of prescribed in paragraph 178.69(i)(7), but axis of the specimen must be the cylinders must be at an angle of 90 in no case may the minimum wall perpendicular to the longitudinal axis of degrees to the knife edges during the thickness be less than 1.5 mm (.058 the cylinder, with the axis of the notch test. The test cylinder must withstand inch). in the ‘‘T–L’’ orientation as illustrated in flattening to 9 times wall thickness (e) Heat treatment. Each cylinder figure 3 of ASTM E 399. Each specimen without cracking. The table follows: must be suitably quench and temper must be Charpy V-Notch type, size 10 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58501 mm (.40 inch) × 5 mm (.20 inch) or 4 inch) × 10 mm (.40 inch) if cylinder (minus 60°F), or colder; and the values mm (.16 inch). thickness permits. When only a reduced obtained may be not less than the values (ii) For cylinders over 454 kg (1,000 size specimen can be obtained, it must shown in the following table. For pounds) water capacity, the axis of the be the largest standard size obtainable cylinders constructed of Grade B specimen must be parallel to the but not smaller than 10 mm (.40 material, the Charpy V-Notch impact longitudinal axis of the cylinder, with inch) × 5 mm (.20 inch). properties for the three specimens must the axis of the notch in the ‘‘L–C’’ (iii) For cylinders constructed of be tested at minus 50°C (minus 60°F ), orientation as illustrated in figure 3 in Grade E material, the Charpy V-Notch or colder; and the values obtained must ASTM E 399. Each specimen must be impact properties for the three not be less than the values shown in the Charpy V-Notch type, size 10 mm (.40 specimens must be tested at minus 50°C following table:

Average value for acceptance Minimum value for acceptance Size of specimen for 3 specimens for one specimen only of the 3 (mm) specimens (ft-lb) (j/cm2) (ft-lb) (j/cm2)

Grade B 10.0 × 10.0 ...... 25 42 20 34 10.0 × 7.5 ...... 21 48 17 39 10.0 × 5.0 ...... 17 58 14 47 Grade E 10.0 × 5.0 ...... 15 50 12 40 10.0 × 4.0 ...... 12 40 9.5 32

59. Section 178.81 would be added to (1) The design test pressure for DOT (c) Authorized materials and Subpart C to read as follows: specification 4M cylinders must be less identification of materials. For an than or equal to 140 bar (2030 psi). aluminum cylinder only Aluminum § 178.81 Specification for DOT 4M; Welded (2) [Reserved] metric-marked cylinders. Association alloy 5154 is authorized. (b) Lot size. For cylinders For a steel cylinder, stock must conform (a) General. DOT specification 4M manufactured under the provisions of to a material listed in Table 1 as follows: cylinders must meet the requirements this section, in no case may a lot size contained in this section and § 178.69. exceed 500. 58502 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58503

(d) Manufacture. (1) A DOT–4M (iv) The tensile strength of welded S(MPa) = PD / 40tE specification cylinder must be joints must be equal to or greater than Where: manufactured only by a process the minimum required tensile strength S = wall stress in MPa. specifically authorized by and conform of the shell material of the finished P = Minimum prescribed test pressure in to the applicable requirements of this cylinder. bar. section. (v) Attachments may not be welded to D = Outside diameter in mm. (2) The manufacturing process must the sidewall of the cylinder. Welding of t = Minimum wall thickness in mm. produce cylinders that are free of attachments must be completed prior to E = weld efficiency factor. defects which are likely to weaken the all pressure tests and prior to heat (f) Openings. Openings must conform finished cylinder. Heads must be treatment when required. Attachments to the following: seamless, hemispherical or ellipsoidal must be made of weldable material of an (1) Openings are permitted in heads in shape with the major diameter not alloy which is compatible with the only. The opening must be circular or more than two times the minor cylinder. The carbon content for steel elliptical. diameter, or a dished shape falling attachments may not exceed 0.25 (2) Openings must be provided with within these limits. For heads concave percent. adequate fittings, bosses or pads, to pressure, the minimum head (e) Wall thickness. The minimum wall integral with or securely attached to the thickness may not be less than 90 thickness of a DOT 4M cylinder must be cylinder by welding. Each fitting, boss percent of the required thickness of the the greater of the thickness as or pad must be compatible with the sidewall. For heads convex to pressure, determined by the following criteria: cylinder material. Method of attachment the minimum thickness must be not less (1) The minimum wall thickness for a must be the same as the method of than two times the required thickness of carbon steel, HSLA steel or stainless construction. the sidewall. The bottom thicknesses steel cylinder with an outside diameter (3) When more than one opening must be measured within an area greater than 127 mm (5 inches) must be exists in the head or bottom of the bounded by a line representing the 2.0 mm (0.078 inch) and for an cylinder, these openings must be points of contact between the cylinder aluminum cylinder with an outside separated by ligaments of at least three and floor when the cylinder is in a diameter greater than 127 mm (5 inches) times the average of their hole vertical position. For cylinders with a must be 4 mm (0.156 inch). diameters. wall thickness less than 2.5 mm (0.100 (2) The minimum wall thickness for a (g) Heat treatment. When a completed inch), the ratio of tangential length to carbon steel, HSLA steel or stainless cylinder is required to be heat treated, outside diameter may not exceed 4.0. steel cylinder with an outside diameter each cylinder in a lot must be uniformly (3) Welding processes and machine less than or equal to 127 mm (5 inches) and properly heat treated under similar operators shall meet qualification must be 1.5 mm (.058 inch) and for an conditions of time, temperature, cooling standards and comply with operating aluminum cylinder 2.5 mm (0.097 inch). rate and atmosphere prior to all tests. procedures specified in CGA Pamphlet (3) Each cylinder must have a wall The furnace temperature for heat C–3. thickness such that the wall stress treatment must be controlled on a (i) Circumferential seams must be butt calculated at test pressure using the continuous basis by use of automated welded with one member offset (joggle formula listed in paragraph (e)(4)(i) and instrumentation to control performance. butt) or lapped with minimum overlap (ii) of this section may not exceed the (1) Heat treatment must follow all of at least four times wall thickness. following allowable stresses at test forming and welding operations. Other butt joints must be authorized in pressure: (2) Each completed cylinder must be writing by the Associate Administrator. (i) For DOT 4M cylinders made from heat treated, as follows: Fillet weld beads must be flat or convex HSLA steel, 260 Mpa (37,000 psi). (i) Quench and temper heat treatment and the leg of any fillet weld subjected (ii) For DOT 4M cylinders made from is authorized only for a DOT 4M to shear stress must be at least 1.3 times carbon steel, 165 Mpa (24,000 psi). the shell wall thickness. For spheres, (iii) For DOT 4M cylinders made from cylinder made from 4130X steel. (A) Tempering must be accomplished the maximum joint efficiency for design aluminum alloy 5154, 138 Mpa (20,000 by reheating the quenched cylinder to a calculations is 0.85. Heat affected zones psi). are considered to extend a distance of (iv) For DOT 4M cylinders made from temperature below the transformation six times the wall thickness from the 4130X steel, 255 Mpa (70,000 psi). range, and holding at that temperature center line of the weld. (v) For DOT 4M cylinders made from for at least one hour per 25 mm (1 inch) (ii) Longitudinal seams must have stainless steel cylinders, 410 Mpa of thickness, based on the shell complete penetration, and must be free (60,000 psi). thickness of the cylinder. Each cylinder from undercuts, overlaps or abrupt (4) For minimum wall thickness must then be air cooled under uniform ridges or valleys. Misalignment of calculations, one of the following conditions. mating butt edges must not exceed 0.166 formula must be used: (B) The tempering temperature of the of the wall thickness or 0.8 mm (0.031- 4130X steel must be at least 538 °C (i) For cylinders that are cylindrical in ° inch), whichever is less. For cylinders shape: (1000 F). with nominal wall thickness up to and (ii) Stress relieving heat treatment for S(MPa) = (P(1.3D2 + .4d2))/E(10(D2–d2)) including 3.2 mm (0.125 inch), joints HSLA steel and carbon steel cylinders must be tightly butted. When wall Where: must be at a temperature of at least 593 thickness is greater than 3.2 mm (0.125 S = Wall stress in MPa. °C (1100 °F). inch), the joint must be gapped with P = Minimum test pressure in bar, as (iii) Normalizing heat treatment for maximum distance equal to one-half the prescribed for the hydrostatic test. HSLA steel and carbon steel cylinders wall thickness or 0.8 mm (0.031 inch) D = Outside diameter in mm. must be at a temperature of at least 870 whichever is less. d = Inside diameter in mm. °C (1600 °F). (iii) The joint efficiency is 1.0, .90 or E = Joint efficiency of the longitudinal (iv) Heat treatment is not required for .75, as appropriate, for welded joint seam. a stainless steel. described in paragraph (i)(6) of this (ii) For cylinders that are spherical in (v) For an aluminum alloy 5154 section. shape: cylinder, heat treatment is not required. 58504 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

(h) Design qualification tests. The (i) Production tests. The following (2) Leak test. Each fully assembled following design qualification test examinations and tests apply. Unless cylinder must be subjected to a gas described in § 178.69 apply. Burst test: otherwise noted in this section, leakage test, using a dry inert gas, at one five representative cylinders of each procedures and acceptable results are half the design test pressure while the design, or any significant change to a prescribed in § 178.69. cylinder is immersed in water, by previously tested design, must be burst (1) Pressure test. Pressure testing must coating it with a leak detecting solution, tested. Each test cylinder must achieve conform to the frequency, schedules and or by an alternate test method approved the minimum burst pressure as pressures as specified in Table 2 of this by the Associate Administrator. Table 2 specified in Table 2 of paragraph (i) of follows: this section without leakage or rupture. paragraph (i).

TABLE 2

Volumetric 1 expansion test Minimum DOT spec. Lot size Maximum per- Proof test burst pressure 3 Test pressure(TP) mitted PVE/ pressure 4 TVE 2

4M 5 ...... 500 As marked ...... 10% @ TP ...... 2 x TP 1 At least one cylinder per lot must be subjected to volumetric expansion test. If each cylinder is subjected to the volumetric expansion test the proof test is not required. 2 PVE = permanent volumetric expansion; TVE = total volumetric expansion. 3 Each cylinder must be proof tested at the TP. 4 One cylinder per lot must be pressurized to destruction; minimum burst is expressed in multiples of TP. 5 See §§ 173.302b and 173.304b of this subchapter for fill (service) pressure of DOT 4M cylinders.

(3) Mechanical tests. Mechanical tests thickness for aluminum cylinders. The be inspected completely and defects must be taken from a minimum of two minimum distance is to be measured removed and repaired. When welding sample cylinders per lot selected at between the knife edges or plates while operations are suspended for more than random after pressure test and heat the specimens are under compression. four hours one cylinder must be treatment, if required. Test specimens For spherical shapes, flattening is to be inspected completely from the first 10 must be taken as depicted in figures 1 performed on a press, between parallel production cylinders after resumption through 5 of Appendix C of this subpart steel plates with the welded seam at of welding. for the specific design utilized for right angles to the plates. Alternatively, (iii) The joint efficiency is 0.75 when construction. a test ring cut from the sphere which there is no radiographic weld (i) For cylinders and spherical shapes includes the weldment and at least one examination. which are not of sufficient size to secure inch of material on each side may be (iv) A cylinder which is less than 21.4 test specimens, an alternate testing crushed between parallel steel plates kg (48 lbs) water capacity and test protocol must be approved in writing by with welded seam at right angles to the pressure less than 34.5 bar (500 psig) the Associate Administrator. plates. Any projecting appurtenances manufactured to a two piece design has (ii) A test cylinder need represent may be removed prior to flattening. a joint efficiency of 1.0 and requires no only one of the heats of material of Removal must not produce a radiographic examination. construction in the lot, provided that temperature exceeding 204 °C (400 °F). (v) Radiographic examination is other heats in the lot have been tested (5) Burst test. For production testing required for DOT 4M cylinders and passed when heat treated under one cylinder selected at random from constructed from 4130X steel and all similar conditions. each lot must be burst tested. Each test DOT 4M cylinders with design test (iii) If, due to welded attachments on cylinder must achieve the minimum pressure equal to or greater than 70 bar the heads, there is insufficient surface burst pressure as specified in Table 2 of (1015 psi). Radiographic examination from which to take specimens, this paragraph (i) without leakage or must be performed on all welded joints specimens may be taken from a cylinder rupture. which are subjected to internal pressure. prepared as a test cylinder which does (vi) As an alternative to radiographic not have the attachments but is the same (6) Joint efficiency. (i) The joint examination, an ultrasonic examination as the other cylinders in the lot and is efficiency is 1.0 when all weld seams, may be used in accordance with heat treated with the lot it represents. both longitudinal and circumferential, Appendix B of this subpart. (iv) Minimum elongations are are completely radiographically (7) Mechanical test of welds. Tests specified in Table 3 or Table 4 of this examined and defects removed. Weld must be performed on specimens taken, paragraph (i), as appropriate. repair areas must be reinspected to as illustrated in Figure 1 through 5 of (v) Acceptable results. The yield confirm that defects have been removed Appendix C of this subpart, from a strength may not exceed 73 percent of and the repaired area is of acceptable cylinder chosen at random from each tensile strength for carbon steel and 80 weld quality. lot. Acceptable results: percent of tensile strength for aluminum (ii) The joint efficiency is 0.90 when (i) Tensile test results must meet alloy 5154. one cylinder from the first 10 acceptance criteria specified in CGA (4) Flattening test. A flattening test production cylinders and one cylinder Pamphlet C–3 with specimen failure at must be performed on a test cylinder from each 100 consecutively welded a stress of not less than two times the selected from each lot. Cylinders must cylinders thereafter are completely wall stress at test pressure, calculated be flattened, without cracking, between radiographically examined and show no using the actual wall thickness. knife edges as specified in § 178.69(i)(1) defects. When defects are found in the (ii) Guided bend test results must to six times the wall thickness for steel sample cylinder all cylinders welded meet acceptance criteria specified in cylinders and ten times the wall since the last acceptable sampling must CGA Pamphlet C–3. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58505

(iii) Alternate guided bend test results in CGA Pamphlet C–3 and must meet acceptance criteria specified § 178.69(i)(8)(iii). Tables 3 and 4 follow:

TABLE 3.ÐELONGATION

Minimum elongation (in percent) Gauge length Gauge length Material × width ((50 × width 1 ((200 Gauge length mm x ≤38 mm × ≤38 of 24t × mm)(2 inch x mm)(8 inch × Width 1 of 6t ≤1.5 inch)) ≤1.5 inch))

Aluminum, alloy 5154 ...... 12 12 12 Steel (tensile strength <3447 MPA (50,000 psi)) ...... 40 20 20 Note 1: A gauge length of at least 24 times shell thickness and a width of not greater than six times shell thickness is authorized when cyl- inder wall is not greater than 4.7 mm (0.188 inch) thick.

TABLE 4.ÐALTERNATE MINIMUM ELONGATION

Alternate minimum elongation (in percent) Having tensile strength >3447 MPA (50,000 psi) Shell tensile strength Gauge length Gauge length × width ((50 × width 1 ((200 Gauge length mm × ≤38 mm × ≤38 of 24t × width1 mm) (2 inch × mm)(8 inch × of 6t MPA PSI ≤1.5 inch)) ≤1.5 inch))

≤3964 ...... ≤57500 ...... 38 19 19 ≤4482 ...... ≤65000 ...... 36 18 18 ≤5000 ...... ≤72500 ...... 34 17 17 ≤5520 ...... ≤80000 ...... 32 16 16 Note 1: A gauge length of at least 24 times shell thickness and a width of not greater than six times shell thickness is authorized when cyl- inder wall is not greater than 4.7 mm (0.188 inch) thick.

(j) [Reserved] treated and retested as if it were a new (m) Repairs. A repair of weld seams (k) Cylinder Rejection. Each test lot. Reheat treatment is limited to two is authorized using the same process as cylinder or each lot represented by a test times. that used for the original welding. A cylinder that does not meet the (l) Leakage test. A spun cylinder rewelded cylinder must be reheat acceptable test results must be rejected. rejected under paragraph (i)(2) of this treated and pass all prescribed tests. When a lot of cylinders is rejected, due section must be scrapped, condemned 60. Appendices A, B and C would be to failure of the mechanical, flattening, or rendered incapable of holding added to Subpart C of Part 178 to read or weld test, the lot may be reheat pressure. as follows:

Appendix A to Subpart C of Part 178—Specifications for Steel, Nickel and Aluminum

TABLE 1.ÐSTEEL AND NICKELÐHEAT ANALYSISÐCHEMICAL COMPOSITION IN WEIGHT PERCENT [For grades A±E, incidental elements to be within the limits specified in the AISI Manual 1for Semifinished Steel Products.]

B Grade Type of material C Mn P S Si Cr Mo Ni min/ Fe min/max min/max max max min/max min/max min/max min/max max

A ...... Carbon 3 Manganese ...... 0.10/0.50 Ð/1.75 0.035 0.025 Ð/0.30 ...... Bal. B ...... Chrome Moly Type ...... 0.25/0.50 0.40/1.05 0.035 0.025 0.15/0.35 0.80/1.15 0.15/0.25 ...... Bal. C ...... Stainless 2 ...... Ð/0.080 Ð/2.00 0.035 0.030 Ð/1.00 16.0/20.0 2.00/3.00 8.0/15.0 ...... Bal. D ...... Nickel ...... 99.0/Ð ...... Bal. E ...... Chrome 4 Moly Type ...... 0.32/0.38 0.60/1.05 0.015 0.010 0.15/0.35 0.80/1.15 0.15/0.25 ...... Bal. 1 The AISI manual referenced in the heading means ``American Iron and Steel Institute'' Steel Products ManualÐAlloy, Carbon, and High Strength Low alloy Steels; Semifinished: dated March 1986. 2 The minimum for molybdenum (2.00) shown, applies only to Stainless Steel type 316. 3 Forging or drawing quality steel required; rimmed steel not authorized. 4 Forging or drawing quality steel required; produced to predominantly fine grain practice.

TABLE 2.ÐALUMINUMÐHEAT OR CAST ANALYSIS FOR ALUMINUM; SIMILAR TO ``ALUMINUM ASSOCIATION'' 1 ALLOY 6061 CHEMICAL ANALYSIS IN WEIGHT PERCENT 2

Other Si Fe Cu Mn Mg Cr Zn Ti Pb Bi min/max max min/max max min/max min/max max max max max Each Total Al max max

0.40/0.80 0.70 0.15/0.40 0.15 0.80/1.20 0.04/0.35 0.25 0.15 0.005 0.005 0.05 0.15 Bal. 1 The ``Aluminum Association'' refers to ``Aluminum Standards and Data 1993'', published by the Aluminum Association Inc. 58506 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

2 Except for ``Pb'' and ``Bi'', the chemical composition corresponds with that of Table 1 of ASTM B221M for Aluminum Association alloy 6061.

MECHANICAL PROPERTIES 2. The UT equipment must have multiple d. UT procedure and reporting focused array transducers to perform both [Aluminum in conformance with the specifica- requirements. The UT procedure and tion in Table 2 above, thermally treated to straight beam and angle beam testing of the reporting requirements used must be in ``T6'' temper] cylinder sidewall and sidewall to base accordance with ASTM E 797 for wall transition. A straight-beam search unit thickness measurement and ASTM E 213 for Elongation, consists of a piezoelectric crystal mounted to sidewall defect measurement. The UT percent mini- a fixture that is perpendicular to the program must be approved in writing by the Tensile Yield strength longitudinal axis of the cylinder. A shear strength mini- minimum mum, for 2 Associate Administrator. inch or 4D 2 wave search unit consists of piezoelectric mum (Mpa) 1 (Mpa) 1 1. The surface of the cylinder to be size crystals mounted to a fixture that are angled specimen at 45° or 60° to the longitudinal axis of the inspected shall be free of extraneous loose cylinder sidewall. The frequency and angle material such as scale, loose paint, and dirt. 3 262 241 14 of each search unit must be determined 2. The rotational speed of the cylinder under examination may not exceed the 1 MPA x 145 = psi. during calibration based on material, rotational speed used during calibration. 2 ``D'' represents specimen diameter. When diameter, and wall thickness of the cylinder. the cylinder is over 3/16 inch thick, a retest A proper search unit must be selected to 3. The UT results must be evaluated in without reheat treatment, using the 4D speci- obtain a good resolution and a minimum accordance with pass-fail criteria identified mens is authorized, if the test using the 2 inch accuracy of +/-5% of the defect depth. A in Table II of § 180.207 of this subchapter for size specimen fails to meet elongation require- search unit frequency of 2.25 MHZ to 10.0 requalification of metric-marked cylinders, as ments. MHZ must be used. The equipment used 3 identified in Table II of § 180.209 of this ``10 percent'' minimum elongation is au- must be calibrated to detect a discontinuity thorized, when using a 24t x 6t test specimen subchapter for requalification of nonmetric- if the cylinder sidewall is not over 3/16 inch 25.4 mm (1 inch) in length and a depth of marked cylinders or as identified in the thick. 5 percent of the prescribed minimum wall applicable cylinder specification. thickness. e. Personnel Qualifications and Appendix B To Subpart C of Part 178— b. Calibration standard. A cylinder used as Responsibilities: Each facility where testing is a calibration standard must be of the same Ultrasonic Examination of Cylinders to be performed must be under the diameter (+/¥10%), surface finish, managerial direction of a Senior Review Ultrasonic examination (UT) includes metallurgical type, and specification as the straight beam pulse echo testing that cylinders to be tested, for example, a DOT Technologist (SRT). measures 100 percent of the cylinder’s 3FM calibrated cylinder must be used for 1. The SRT must define the overall test sidewall thickness and angle beam (shear 3FM cylinders. The calibration cylinder must program, provide supervisory training and wave) pulse echo that identifies and be machined with features that simulate technical guidance to operators, review and measures cracks, pits, laminations, laps, and defects such as pits, fatigue cracks, and certify test results and maintain proof of other defects. reduced wall thickness. The size of the defect qualifications for each ‘‘qualified tester’’. The a. UT equipment. The UT equipment shall feature shall be approximately the same as SRT must have a Level III, UT Certification, consist of a pulse-echo test instrument that the applicable pass-fail criteria identified in in accordance with the ASNT Recommended is capable at a minimum, of generating, Table II of § 180.207 of this subchapter for Practice SNT–TC–1A and a thorough receiving, and presenting high energy pulses requalification of metric-marked cylinders, as understanding of this subchapter pertaining in an A-scan presentation on a display. It identified in Table II of § 180.209 of this to the qualification and use of DOT cylinders. must have a minimum frequency of 1.0 MHZ subchapter for requalification of nonmetric- 2. The person performing cylinder testing, and a minimum frequency range of 1.0 to 5.0 marked cylinders or as identified in the the ‘‘qualified tester’’, must be at a minimum MHZ. applicable cylinder specification. The a qualified Level II, UT in accordance with minimum wall thickness and defect sizes in 1. The UT equipment must continually ASNT–TC–1A. The ‘‘qualified tester’’ may the calibration cylinder must be confirmed monitor the acoustic coupling to assure perform system startup, calibrate the system, by mechanical measurements and certified 100% cylinder sidewall coverage during the and review and validate the test results. by a non-destructive testing (NDT) Level III 3. A person with Level I certification may testing and automatically terminate the in UT. The size of the defect features in the testing if the coupling is lost. The equipment calibration cylinder shall be measured every perform a system startup, check calibration, also must be capable of providing a linear five years to confirm that the defect sizes and perform UT only under the direct presentation of crack depth. The equipment have not been changed. A certification guidance, supervision, and observation of a calibration must be verified for each type of statement signed by a person certified to NDT Level II or Level III Operator. cylinder to be examined using the calibration Level III in UT must be maintained for each 4. Each ‘‘qualified tester’’ must have standard in paragraph b of this Appendix calibration standard and made available for written procedures for conducting UT, for prior to testing. At a minimum, the review, upon request, by an authorized RSPA operation of equipment, a copy of this equipment calibration must be verified at the representative. subchapter, proof of qualifications, and beginning of each work shift, not to exceed c. Couplant. The same couplant must be records of all tests performed at the facility 10 continuous hours. used for both calibration and actual testing. where testing is performed. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58507 58508 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58509 58510 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58511

BILLING CODE 4910±60±C 58512 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

PART 180ÐCONTINUING volume, due to application of pressure, pressure and the volume of water the QUALIFICATION AND MAINTENANCE which is lost when pressure is released. cylinder externally displaces at ambient OF PACKAGINGS Filled means an introduction or pressure. presence of a hazardous material in a (2) Direct expansion method means a 61. The authority citation for Part 180 cylinder. volumetric expansion test to calculate a would continue to read as follows: Non-corrosive service means a cylinder’s total and permanent Authority: 49 U.S.C. 5101–5127; 49 CFR hazardous material that is not corrosive expansion by measuring the amount of 1.53. to the materials of construction of a water forced into a cylinder at test cylinder (including valve, pressure 62. Subpart C would be added to Part pressure, adjusted for the relief device, etc.) when moisture is 180 to read as follows: compressibility of water, as a means of introduced into the cylinder. determining the expansion. Subpart CÐQualification, Maintenance and Over-heated means a condition in Use of Cylinders which any part of a cylinder has been § 180.205 General requirements for Sec. subjected to a temperature in excess of requalification of cylinders. 180.201 Applicability. 176 °C (350 °F). (a) General. Each cylinder used for the 180.203 Definitions. Over-pressurized means a condition transportation of hazardous materials 180.205 General requirements for in which a cylinder has been subjected must be an authorized packaging. To requalification of cylinders. to an internal pressure in excess of 30% qualify as an authorized packaging, each 180.207 Requirements for requalification of of its test pressure. cylinder must conform to this subpart, metric-marked specification cylinders. Permanent expansion means the 180.209 Requirements for requalification of the applicable requirements specified in nonmetric-marked specification permanent increase in a cylinder’s part 173 of this subchapter, and the cylinders. volume after the test pressure is released applicable requirements of subpart C of 180.211 Repair, rebuilding and reheat (permanent expansion = total expansion part 178 of this subchapter. treatment of nonmetric-marked DOT–4 minus elastic expansion). (b) Persons performing requalification series specification cylinders. Proof pressure test means a pressure functions. No person may represent that 180.213 Requalification markings. test by interior pressurization without a repair or requalification of a cylinder 180.215 Reporting and record retention the determination of the cylinder’s has been performed unless that person requirements. expansion. holds a current approval issued under Rebuild means the replacement of a Subpart CÐQualification, Maintenance the procedural requirements prescribed pressure part (e.g. a wall, head or and Use of Cylinders in subpart I of part 107 of this chapter. pressure fitting) by welding. No person may mark a cylinder with a § 180.201 Applicability. Rejected cylinder means a cylinder RIN and a requalification date or that can not be used for the This subpart prescribes requirements, otherwise represent that a DOT transportation of a hazardous material in addition to those contained in Parts specification or exemption cylinder has in commerce without repair, rebuild or 107, 171, 172, 173 and 178 of this been requalified unless all applicable requalification. chapter, applicable to any person requirements of this subpart have been Repair means a procedure for responsible for the continuing met. A person who requalifies cylinders correction of a rejected cylinder and qualification, maintenance, or periodic shall maintain, at each location at which may involve welding. it inspects, tests or marks cylinders, the requalification of DOT specification and Requalification means the completion records prescribed in § 180.215. exemption cylinders. of a visual inspection and or the test(s) (c) Periodic requalification of that are required to be performed on a § 180.203 Definitions. cylinders. Each cylinder bearing a DOT cylinder to determine its suitability for In addition to the definitions specification marking must be contained in §§ 171.8 and 178.69 of this continued service. Requalification identification number requalified and marked as specified in subchapter, the following definitions or RIN means a code assigned by DOT the Requalification Table in this apply to this subpart: to uniquely identify a cylinder subpart. Each cylinder bearing a DOT Associate Administrator means requalification, repair or rebuilding exemption number must be requalified Associate Administrator for Hazardous facility. and marked in conformance with this Materials Safety. Test pressure means the pressure used section and the terms of the applicable Commercially free of corrosive for the requalification of a cylinder. exemption. No cylinder may be charged components means a hazardous material Total expansion means the total or filled with a hazardous material and having a dew point at or below minus increase in a cylinder’s volume due to offered for transportation in commerce ° ° 46.7 C (minus 52 F) at 101kPa (1 application of the test pressure. unless that cylinder has been atmosphere) and free of material that Visual inspection means an internal successfully requalified and marked in will adversely react with the cylinder or external visual examination, or both, accordance with this subpart. A (e.g. chemical stress corrosion). performed as part of the cylinder cylinder may be requalified at any time Condemn means a determination that requalification process. during the month and year that the a cylinder is unserviceable for the Volumetric expansion test means a requalification is due. However, a continued transportation of hazardous pressure test by interior pressurization cylinder that was charged or filled materials in commerce and that the to measure a cylinder’s expansion by before the requalification became due cylinder may not be restored by repair, using the water jacket or direct may remain in service until it has been rebuilding, requalification or any other expansion methods: emptied. procedure. (1) Water jacket method means a (1) Each cylinder that successfully Defect means an imperfection that volumetric expansion test to determine passes requalification specified in this requires removal of a cylinder from a cylinder’s total and permanent section must be marked in accordance service. expansion by measuring the difference with § 180.213. Elastic expansion means the between the volume of water the (2) Each cylinder that fails temporary increase in a cylinder’s cylinder externally displaces at test requalification must be: Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58513

(i) Rejected and may be requalified in visual inspection. When a pressure test (iii) Any exemption covering the accordance with § 180.211; or is not performed, the cylinder must be manufacture, requalification, and or use (ii) Condemned in accordance with given an external visual inspection. of that cylinder; and paragraph (i) of this section. (1) The visual inspection must be (iv) Any approval required under (3) For nonmetric-marked DOT performed in accordance with the § 180.211. specification cylinders, the marked following CGA Pamphlets: C–6 for steel (i) Cylinder condemnation. (1) A service pressure may be changed upon and nickel cylinders; C–6.1 for seamless cylinder must be condemned when— application to the Associate aluminum cylinders; C–6.2 for fiber (i) The cylinder meets a condition for Administrator and receipt of written reinforced exemption cylinders; C–6.3 condemnation under the visual procedures. for low pressure aluminum cylinders; inspection requirements of paragraph (f) (4) For a metric-marked cylinder, the C–8 for DOT 3HT cylinders, and C–13 of this section; start-to-discharge pressure of a pressure for DOT 8 series cylinders. (ii) The cylinder leaks through its wall; relief device must not be less than the (2) Each cylinder with a vinyl or (iii) Evidence of cracking exists to the marked test pressure of the cylinder. For plastic coating must have the coating extent that the cylinder is likely to be a nonmetric-marked DOT–3 series completely removed prior to performing weakened appreciably; cylinder, the start-to-discharge pressure the visual inspection. of a pressure relief device must be set (iv) A DOT specification cylinder (3) Each cylinder subject to visual to not less than 100% of the minimum (including 4M), other than a DOT 4E inspection must be approved, rejected required test pressure at the first aluminum cylinder or an exemption or condemned according to the criteria requalification due on and after cylinder, permanent expansion exceeds in the applicable CGA pamphlet. [EFFECTIVE DATE OF THE FINAL 10 percent of total expansion; RULE]. To ensure that the relief device (4) In addition to other requirements (v) A DOT 3HT cylinder— does not open below its set pressure, the prescribed in this paragraph, DOT 3AL (A) Yields an elastic expansion allowable tolerances for all the pressure cylinders must be inspected for exceeding the marked rejection elastic relief devices must range from zero to evidence of sustained load cracking in expansion (REE) value during the plus 10% of its setting. the neck and shoulder area in pressure test. A cylinder made before (d) Conditions requiring test and accordance with the cylinder January 17, 1978, and not marked with inspection of cylinders. Without regard manufacturer’s written an REE in cubic centimeters near the to any other periodic requalification recommendations which have been marked original elastic expansion must requirements, a cylinder must be tested approved in writing by the Associate be so marked before the next test date. and inspected in accordance with this Administrator. The REE for the cylinder is 1.05 times section prior to further use if— (g) Pressure test. Unless otherwise its original elastic expansion; (1) The cylinder shows evidence of excepted, the pressure test must be (B) Shows evidence of denting or dented, corroded, cracked or abraded conducted in accordance with the bulging; or areas, leakage, thermal damage or any procedures in paragraphs 4, 5 and 6 and (C) Bears a manufacture or an original other condition that might render it Appendices A and B of CGA Pamphlet test date older than twenty-four years or unsafe for use in transportation. C–1. Bands and other removable after 4,380 pressurizations, whichever (2) The cylinder has been in an attachments must be loosened or occurs first. If a cylinder is refilled, on accident and has been damaged to an removed before testing so that the average, more than once every other extent that may adversely affect its cylinder is free to expand in all day, an accurate record of the number lading retention capability. directions. of rechargings must be maintained by (3) The cylinder has been over-heated (h) Cylinder rejection. A cylinder the cylinder owner or the owner’s agent; or over-pressurized. must be rejected when, after a visual (vi) A DOT 4E or 4M aluminum (4) The Associate Administrator inspection, it meets a condition for cylinder’s permanent expansion exceeds determines that the cylinder may be in rejection under the visual inspection 12 percent of total expansion; an unsafe condition. requirements of paragraph (f) of this (vii) A DOT exemption cylinder’s (e) Cylinders containing Class 8 section. permanent expansion exceeds the limit materials. A cylinder that previously (1) A cylinder that is rejected may not in the applicable exemption, or the contained a Class 8 material may not be be marked as meeting the requirements cylinder meets another criterion for used to transport a Class 2 material in of this section. condemnation in the applicable exemption; commerce unless the cylinder is— (2) The requalifier shall notify the (1) Visually inspected, internally and (viii) An aluminum or an aluminum- cylinder owner, in writing, that the externally, in accordance with lined composite exemption cylinder is cylinder has been rejected and, unless paragraph (f) of this section and the exposed to a temperature exceeding 177 requalified as provided in § 180.211, inspection is recorded as prescribed in °C (350 °F); or may not be filled with a hazardous § 180.215; (ix) A DOT specification cylinder material for transportation in commerce (2) Requalified in accordance with requalified by ultrasonic examination where use of a specification packaging this section, regardless of the date of the that exceeds the minimum rejection is required. previous requalification; criteria set forth in Table II of § 180.207 (3) Marked in accordance with (3) A rejected nonmetric-marked or § 180.209, as applicable. § 180.213; cylinder with a service pressure of less (2) When a cylinder is required to be (4) Decontaminated and the than 900 psig may be requalified and condemned, the requalifier shall stamp decontamination removes all significant marked if the cylinder is repaired or a series of X’s over the DOT residue or impregnation of the Class 8 rebuilt and subsequently inspected and specification number and the marked material. tested in conformance with— pressure or stamp ‘‘CONDEMNED’’ on (f) Visual inspection. Except as (i) The visual inspection requirements the shoulder, top head, or neck using a otherwise provided in this subpart, each of paragraph (f) of this section; steel stamp. Alternatively, at the time a cylinder is pressure tested, it (ii) Part 178 of this subchapter and direction of the owner, the requalifier must be given an internal and external this part; may render the cylinder incapable of 58514 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules holding pressure. In addition, the of this subpart. The ultrasonic must have 100% of the cylindrical requalifier shall notify the cylinder examination must meet the section tested by straight-beam and owner, in writing, that the cylinder is requirements in Table II of this section. angle-beam. For a DOT 4M cylinder condemned and may not be filled with The recordkeeping requirements for an with a marked test pressure greater than hazardous material for transportation in ultrasonic examination must be in 70 bar or tensile strength greater than or commerce where use of a specification accordance with § 180.215. The equal to 830 Kpa (120,000 psi), 100% of packaging is required. ultrasonic examination procedures and the cylindrical section must be tested by (3) No person may remove or equipment must be approved by the straight-beam and angle-beam. For a obliterate the ‘‘CONDEMNED’’ marking. Associate Administrator and meet the DOT 4M cylinder with a marked test § 180.207 Requirements for requalification requirements set forth in Appendix B of pressure of 70 bar or less and tensile of metric-marked specification cylinders. Subpart C of Part 178 of this subchapter. strength less than 830 Kpa (120,000 psi), (a) Each metric-marked cylinder that Other nondestructive examinations 100% of the cylindrical section must be becomes due for periodic requalification (NDE) may be used only if approved in tested by straight beam if an ultrasonic as specified in Table I of this section writing by the Associate Administrator. examination is performed. must be inspected, tested, and marked (b) Except as otherwise provided, Tables to § 180.207 in conformance with the requirements DOT 3FM, 3ALM and 3M cylinders

TABLE I TO § 180.207.ÐREQUALIFICATION OF METRIC-MARKED CYLINDERS

Type of service Interval period Test of Specifications (years) inspection First subseq.

External visual DOT±3M, 3FM, 3ALM, 4M ...... External visual inspections in accordance with the applicable ...... inspection. CGA pamphlet must be performed in conjunction with the ul- trasonic examination. INTERNAL and DOT±4M ...... Except as otherwise provided, the internal and external visual ...... EXTERNAL inspections must be performed in conjunction with the pres- VISUAL IN- sure test and in accordance with the applicable CGA pam- SPECTION. phlet. Ultrasonic EX- DOT 3M, 3FM, 3ALM, 4M ...... All, except cylinders used exclusively for the material listed 5 5 AMINATION. below:. DOT 3M, 3FM, 3ALM ...... (1) Nonliquefied or liquefied, noncorrosive, nontoxic (the LC50 of the lading is not less than 5000 ppm) gases that are com- mercially free from corrosive components, and in cylinders protected externally by a suitable corrosion-resistant coating. A coating on a stainless steel or aluminum cylinder is op- tional. (2) Class 3 (flammable) liquids without pressurization that are nontoxic (except 6.1 PG III) and are commercially free from corroding components. (3) Class 8 (corrosive) liquids without pressurization that are 10 10 nontoxic (except 6.1 PG III) and do not meet the criteria of § 173.137(c)(2) of this subchapter. See restriction in § 180.205(e). DOT 3M ...... Anhydrous ammonia commercially free from corrosive compo- 10 10 nents, and in cylinders protected externally by a suitable cor- rosion-resistant coating. DOT 4M (DOT 4M cylinders (1) Nonliquefied or liquefied, noncorrosive, nontoxic (the LC50 with a test pressure of 70 bar of the lading is not less than 5000 ppm) gases that are com- or less may be tested by a mercially free from corrosive components, and in cylinders volumetric expansion test). protected externally by a suitable corrosion-resistant coating. A coating on a stainless steel or aluminum cylinder is op- tional. (2) Class 3 liquids without pressurization that are nontoxic (ex- 15 15 cept 6.1 PG III) and are commercially free from corrosive components. (3) Class 8 (corrosive) liquids without pressurization that are nontoxic (except 6.1 PG III) and do not meet the criteria of § 173.137(c)(2) of this subchapter. See restriction in § 180.205(e). DOT 3M and 4M (DOT 4M cyl- Specification cylinders used exclusively as fire extinguishers 12 12 inders with a test pressure of and meeting the limitations in special provision 18 in 70 bar or less may be tested § 172.102(c)(1) of this subchapter. by a volumetric expansion test). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58515

TABLE II TO § 180.207.ÐCRITERIA FOR PERIODIC ULTRASONIC EXAMINATION OF METRIC MARKED CYLINDERS

Rejected area for re- duced wall Coverage Coverage Rejectable Rejectable thickness (t) area of area of Rejectable crack length crack size in Rejectable reduced wall cylinder by cylinder by crack depth in sidewall the circum- pit size diam- t=any value DOT specification straight angle in sidewall ferential × beam (lon- beam (% of wall (multiple of welded joint eter (D) less than de- gitudinal (shear thickness) wall thick- (depth × depth sign min. ness) wall t1 wave) wave) length) D=diameter of the cyl- inder

3FM ...... 100% of 100% of 10% of Wall 4 times Wall NA ...... 3 mm × 1¤3 of 161 mm2 or sidewall. sidewall. Thickness .... Thickness .... the De- 0.002D2. signed Wall Thick- ness. 3ALM ...... 100% of 100% of 15% of Wall 5 times Wall NA ...... 3 mm × 1¤3 of 323 mm2 or sidewall. sidewall. Thickness .... Thickness .... the De- 0.004D2. signed Wall Thick- ness. 3M ...... 100% of 100% of 15% of Wall 5 times Wall NA ...... 3 mm × 1¤3 of 323 mm2 or sidewall. sidewall. Thickness .... Thickness .... the De- 0.004D2. signed Wall Thick- ness. 4M with a marked test pressure >70 100% of 100% of 10% of Wall 4 times Wall 10% of Wall 3 mm × 1¤3 of 323 mm2 or bar or tensile strength ≥830 MPa. sidewall. sidewall. Thickness .... Thickness .... Thick the De- 0.004D2. (Depth) signed and 2 Wall Thick- times of ness. Wall Thick, (Length). 4M with a marked test pressure ≤70 100% of NA ...... NA ...... NA ...... NA ...... NA ...... 323 mm2 or bar or tensile strength <830 MPa. sidewall. 0.004D2. 1 Term wall thickness in this table means the minimum design wall thickness provided in the manufacturers inspection report. § 180.209 Requirements for requalification of nonmetric-marked specification cylinders. (a) Periodic qualification of cylinders. (1) Each nonmetric-marked cylinder that becomes due for periodic requalification, as specified in the following table, must be requalified and marked in conformance with the requirements of this subpart. The recordkeeping requirements must be in accordance with § 180.215. Table I follows:

TABLE I.ÐREQUALIFICATION OF NONMETRIC-MARKED CYLINDERS 1

Specification under which cylinder was made 2 Minimum test pressure (p.s.i.) 3 Test period (years)

DOT±3 ...... 3,000 p.s.i...... 5. DOT±3A, 3AA ...... 5/3 times service pressure, except noncorro- 5, 10, or 12 (see § 180.209 (b), (f), (h) and (j)). sive service (see § 180.209(g)). DOT±3AL ...... 5/3 times service pressure ...... 5 or 12 (see 180.209(j)). DOT±3AX, 3AAX ...... 5/3 times service pressure ...... 5. 3B, 3BN ...... 2 times service pressure (see § 180.209(g)) .... 5 or 10 (see § 180.209(f)). 3E ...... Test not required. 3HT ...... 5/3 times service pressure ...... 3 (see § 180.209(i) and 180.213(c)). 3T ...... 5/3 times service pressure ...... 5. 4AA480 ...... 2 times service pressure (see § 180.209(g)) .... 5 or 10 (see § 180.209(e)(14)). 4B, 4BA, 4BW, 4B±240ET ...... 2 times service pressure, except non-corrosive 5, 10 or 12 (see § 180.209(e), (f) and (j)). service (see § 180.209(g)). 4D, 4DA, 4DS ...... 2 times service pressure ...... 5. DOT±4E ...... 2 times service pressure, except non-corrosive 5. service (see § 180.209(g)). 4L ...... Test not required 8, 8AL ...... 10 or 20 (See § 180.209(i)). Exemption Cylinder Foreign cylinder (see See current exemption as marked on the cyl- See current exemption 5 (see § 180.209(k) § 173.301(j) for restrictions on use. inder, but not less than 5/3 of any service or and § 180.213(d)(iii)). working pressure marking. 1 Any cylinder not exceeding two inches outside diameter and less than two feet in length is excepted from hydrostatic test. 2 After January 1, 2005, DOT±3T and 3HT specification cylinders must be inspected by a non-destructive testing method approved by the As- sociate Administrator. 3 For cylinders not marked with a service pressure, see § 173.301(e)(1) of this subchapter. 58516 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

(2) In lieu of a hydrostatic pressure thickness of each cylinder examined by requirements for an ultrasonic test (i.e. volumetric expansion or proof UT must be equal to or greater than the examination must be in accordance with pressure tests) as required by this design minimum wall thickness. For § 180.213. section, each DOT specification cylinder each cylinder, the minimum wall Note to paragraph (a)(2)(i): The test that becomes due for periodic thickness data from the cylinder interval for the requalification of a requalification, as specified in Table I of manufacturer’s inspection report must nonmetric-marked DOT specification paragraph (a)(1) of this section, may be be available and used during UT cylinder subjected to UT examination is the requalified by using one of the following examination. An external visual same as specified in Table I of paragraph methods: inspection in accordance with the (a)(1) of this section. The ultrasonic (i) Ultrasonic examination: Ultrasonic applicable CGA pamphlet is required to examination only replaces the hydrostatic examination must be in conformance be performed in conjuction with the pressure test. with the requirements of the Appendix ultrasonic examination. The (ii) Other nondestructive B of Subpart C of part 178 of this recordkeeping requirements for an examinations (NDE) as approved in subchapter and Table II of paragraph ultrasonic examination must be in writing by the Associate Administrator. (a)(2) of this section. Minimum wall accordance with § 180.215. The marking Table II follows:

TABLE II.ÐCRITERIA FOR PERIODIC ULTRASONIC EXAMINATION OF NON-METRIC MARKED CYLINDERS

Rejected area for re- Coverage Rejectable duced wall area of cyl- Coverage Rejectable defect length Rejectable thickness (t) inder by area of cyl- defect depth in sidewall pit size diam- reduced wall DOT spec straight inder by in sidewall (multiple of eter (D) × t = any value beam (longi- angle beam (% of wall wall thick- depth less than de- tudinal wave) (shear wave) thickness) ness) sign min. wall t1 D = diameter of the cylinder

3T ...... 100% of 100% of 10% of Wall 4 times Wall 3 mm × 1¤3 of 161 mm2 or sidewall. sidewall. Thickness .... Thickness .... the De- 0.002D2. signed Wall Thickness. 3AL (mfg. after 1989) ...... 100% of 100% of 15% of Wall 5 times Wall 3 mm × 1¤3 of 323 mm2 or sidewall. sidewall. Thickness .... Thickness .... the De- 0.004D2. signed Wall Thickness. 3AA,3A, 3AX, 3AAX ...... 100% of 100% of 15% of Wall 5 times Wall 3 mm × 1¤3 of 323 mm2 or sidewall. sidewall. Thickness .... Thickness .... the De- 0.004D2. signed Wall Thickness. 4B,4BA,4BW4D,4DS,4DA ...... 100% of NA ...... NA ...... NA ...... 3 mm × 1¤3 of 323 mm2 or sidewall. the De- 0.004D2. signed Wall Thick- ness. 1 Term wall thickness in this table means the minimum design wall thickness provided in the manufacturers inspection report.

(b) DOT–3A or 3AA cylinders. (1) A volume of carbon dioxide, provided that (b)(1)(ii) of this section, but currently cylinder conforming to specification the gas has a dew point at or below conforms with all other provisions of DOT–3A or 3AA with a water capacity minus (52°F) at 1 atmosphere; paragraph (b)(1) of this section, it may of 125 pounds or less that is removed (iii) Before each refill, the cylinder is be requalified every 10 years instead of from any cluster, bank, group, rack, or removed from any cluster, bank, group, every five years, provided it is first vehicle each time it is filled, may be rack or vehicle and passes the hammer requalified and examined as prescribed requalified every ten years instead of test specified in CGA Pamphlet C–6; by § 173.302a(b)(2), (3) and (4) of this every five years, provided the cylinder (iv) The cylinder is dried immediately subchapter. meets all of the following— after hydrostatic testing to remove all traces of water; (3) Except as specified in (b)(2) of this (i) The cylinder was manufactured (v) The cylinder is not used for section, if a cylinder, marked with a after December 31, 1945; underwater breathing; and star, is filled with a compressed gas (ii) The cylinder is used exclusively (vi) Each cylinder is stamped with a other than as specified in paragraph for air, argon, cyclopropane, ethylene, five-pointed star at least one-fourth of (b)(1)(ii) of this section, the star helium, hydrogen, krypton, neon, an inch high immediately following the following the most recent test date must nitrogen, nitrous oxide, oxygen, sulfur test date. be obliterated. The cylinder must be hexafluoride, xenon, permitted mixtures (2) If, since the last required requalified five years from the marked of these gases (see § 173.301(d) of this requalification, a cylinder has not been test date, or prior to the first filling with subchapter), and permitted mixtures of used exclusively for the gases a compressed gas, if the required five- these gases with up to 30 percent by specifically identified in paragraph year requalification period has passed. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58517

(c) DOT 4-series cylinders. A DOT 4- trichlorofluoromethane; and that is and external examination of the series cylinder, except 4L cylinders, that commercially free from corroding cylinder is conducted every five years in at any time shows evidence of a leak or components and protected externally by accordance with CGA Pamphlet C–6. of internal or external corrosion, a suitable corrosion-resistant coating The cylinder must be examined at each denting, bulging or rough usage to the (such as galvanizing or painting) may be filling, and rejected if a dent, corroded extent that it is likely to be weakened requalified every 12 years instead of area, leak or other condition indicates appreciably; or that has lost five percent every five years. Alternatively, the possible weakness. or more of its official tare weight must cylinder may be subjected to internal (g) Visual inspections. A cylinder be requalified before being refilled and hydrostatic pressure of at least two conforming to a specification listed in offered for transportation. (Refer to CGA times the marked service pressure the table in this paragraph and used Pamphlet C–6 or C–6.3, as applicable, without determination of expansion, but exclusively in the service indicated regarding cylinder weakening.) After this latter type of test must be repeated may, instead of a periodic hydrostatic testing, the actual tare weight must be every seven years after expiration of the recorded as the new tare weight. first 12-year period. When subjected to test, be given a complete external visual (d) Cylinders 12 pounds or less with the latter test, the cylinder must be inspection at the time periodic service pressures of 300 psi or less. A carefully examined under test pressure requalification becomes due. External cylinder of 12 pounds or less water and removed from service if a leak or visual inspection must be in accordance capacity authorized for service pressure other harmful defect exists. A cylinder with CGA Pamphlet C–6 or C–6.3, as of 300 psi or less must be given a requalified by the proof pressure test applicable. When this inspection is used complete external visual inspection at method must be marked after a test or instead of hydrostatic pressure testing, the time periodic requalification an inspection with the appropriate RIN subsequent inspections are required at becomes due. External visual inspection and the date of requalification or five-year intervals after the first must be in accordance with CGA reinspection on the cylinder followed inspection. Inspections must be made Pamphlet C–6 or C–6.1. The cylinder by an ‘‘S’’. only by persons holding a current RIN may be hydrostatically tested without a (f) Poisonous materials. A cylinder and the results recorded and maintained water jacket and without determining conforming to specification DOT–3A, in accordance with § 180.215. Records total and permanent expansions. The DOT–3AA, DOT–3B, DOT–4BA or shall include: date of inspection (month test is successful if the cylinder, when DOT–4BW having a service pressure of and year); DOT specification number; examined under test pressure, does not 300 psi or less that is used exclusively cylinder identification (registered display a defect described in for methyl bromide, liquid; mixtures of symbol and serial number, date of § 180.205(i)(1)(ii) or (iii). methyl bromide and ethylene manufacture, and owner); type of (e) Proof pressure test. A cylinder dibromide, liquid; mixtures of methyl cylinder protective coating (including made in compliance with specification bromide and chlorpicrin, liquid; statement as to need of refinishing or DOT 4B, DOT 4BA, DOT 4BW, DOT 4E mixtures of methyl bromide and recoating); conditions checked (e.g., that is used exclusively for anhydrous petroleum solvents, liquid; or methyl leakage, corrosion, gouges, dents or digs dimethylamine; anhydrous bromide and nonflammable, in shell or heads, broken or damaged methylamine; anhydrous nonliquefied compressed gas mixtures, footring or protective ring or fire trimethylamine; methyl chloride; liquid; that is commercially free of damage); disposition of cylinder liquefied petroleum gas; corroding components, and that is (returned to service, returned to methylacetylene-propadiene stabilized; protected externally by a suitable cylinder manufacturer for repairs or or dichlorodifluoromethane, corrosion resistant coating (such as condemned). A cylinder passing difluoroethane, difluorochloroethane, galvanizing or painting) and internally requalification by the external visual chlorodifluoromethane, by a suitable corrosion resistant lining inspection must be marked in chlorotetrafluoroethane, (such as galvanizing) may be tested accordance with § 180.213. trifluorochloroethylene, or mixture every 10 years instead of every five Specification cylinders must be in thereof, or mixtures of one or more with years, provided that a visual internal exclusive service as follows:

Cylinders made in compliance withÐ Used exclusively forÐ

DOT±3A, DOT±3AA, DOT±3A480X, DOT±4AA480 ...... Anhydrous ammonia of at least 99.95% purity. DOT±3A, DOT±3AA, DOT±3A480X, DOT±3B, DOT±4B, DOT±4BA, Butadiene, inhibited, which is commercially free from corroding compo- DOT±4BW. nents. DOT±3A, DOT±3A480X, DOT±3AA, DOT±3B, DOT±4AA480, DOT±4B, Cyclopropane which is commercially free from corroding components. DOT±4BA, DOT±4BW. DOT±3A, DOT±3AA, DOT±3A480X, DOT±4B, DOT±4BA, DOT±4BW, Fluorinated hydrocarbons and mixtures thereof which are commercially DOT±4E. free from corroding components. DOT±3A, DOT±3AA, DOT±3A480X, DOT±3B, DOT±4B, DOT±4BA, Liquefied hydrocarbon gas which is commercially free from corroding DOT±4BW, DOT±4E. components. DOT±3A, DOT±3AA, DOT±3A480X, DOT±3B, DOT±4B, DOT±4BA, Liquefied petroleum gas which is commercially free from corroding DOT±4BW, DOT±4E. components. DOT±3A, DOT±3AA, DOT±3B, DOT±4B, DOT±4BA, DOT±4BW, DOT± Methylacetylene-propadiene, stabilized, which is commercially free 4E. from corroding components. DOT±3A, DOT±3AA, DOT±3B, DOT±4B, DOT±4BA, DOT±4BW ...... Anhydrous mono, di, trimethylamines which are commercially free from corroding components. DOT±4B240, DOT±4BW240 ...... Ethyleneimine, inhibited.

(h) Cylinders containing anhydrous ammonia. A cylinder made in compliance with specification DOT–3A, DOT– 3A480X, or DOT–4AA480 used exclusively for anhydrous ammonia, commercially free from corroding components, and protected externally by a suitable corrosion-resistant coating (such as painting) may be requalified every 10 years instead of every five years. 58518 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

(i) Requalification of DOT 8 series cylinders. (1) Each owner of a DOT 8 series cylinder used to transport acetylene must have the cylinder shell and the porous filler requalified in accordance with CGA Pamphlet C–13. Requalification must be performed in accordance with the following schedule:

Shell (visual inspection) requalification Porous filler requalification Date of cylinder manufacture Initial Subsequent Initial Subsequent

Before January 1, 1991 ...... Before January 1, 2001 ...... 10 years ...... Before January 1, 2011 ...... Not required. On or after January 1, 1991 10 years 1 ...... 10 years ...... 3 to 20 years 2 ...... Not required. 1 Years from date of cylinder manufacture. 2 For a cylinder manufactured on or after January 1, 1991, requalification of the porous filler must be performed no sooner than 3 years, and no later than 20 years, from the date of manufacture.

(2) Unless requalified and marked in (1) A cylinder manufactured outside (3) Welding and brazing shall be accordance with CGA Pamphlet C–13 the United States, other than as performed on an area free from before October 1, 1994, an acetylene provided in § 171.12a of this contaminants. cylinder must be requalified by a person subchapter, that has not been (4) A weld defect, such as porosity in who holds a current RIN. manufactured, inspected, tested and a pressure retaining seam, shall be (3) If a cylinder valve is replaced, a marked in accordance with part 178 of completely removed before rewelding. cylinder valve of the same weight must this subchapter may be filled with Puddling may be used to remove a weld be used or the tare weight of the compressed gas in the United States, defect only by the tungsten inert gas cylinder must be adjusted to and shipped solely for export if it meets shielded arc process. compensate for valve weight the following requirements, in addition (5) After removal of a non-pressure differential. to other requirements of this subchapter: attachment and before its replacement, (4) The person performing a visual (i) It has been inspected, tested and the cylinder shall be given a visual inspection, or requalification must marked (with only the month and year inspection in accordance with record the results as specified in of test) in conformance with the § 180.205(f). § 180.215. procedures and requirements of this (6) Reheat treatment of DOT–4B, 4BA (5) The person performing a visual subpart or the Associate Administrator or 4BW specification cylinders after inspection, or requalification must mark has authorized the filling company to replacement of non-pressure the cylinder as specified in § 180.213. fill foreign cylinder under an alternative attachments is not required when the (j) Cylinders used as a fire method of qualification; and total weld material does not exceed 8 extinguisher. Only DOT specification (ii) It is offered for transportation in inches. Individual welds must be at cylinders used as fire extinguishers and conformance with the requirements of least three inches apart. meeting Special Provision 18 in § 173.301(l) of this subchapter. (7) After repair of a DOT 4B, 4BA or § 172.102(c)(1) of this subchapter may (2) [Reserved] 4BW cylinder, the weld area is to be be requalified in accordance with this leak tested at the service pressure of the paragraph (j). § 180.211 Repair, rebuilding and reheat cylinder. (1) A DOT specification 4B, 4BA, treatment of nonmetric-marked DOT±4 (8) Repair of weld defects must be free 4B240ET or 4BW cylinder may be tested series specification cylinders. of cracks. as follows: (a) General requirements for repair (9) When a non-pressure attachment (i) For a cylinder with a water and rebuilding. Any repair or rebuilding with the original cylinder specification capacity of 12 pounds or less by of a DOT 4B, 4BA or 4BW cylinder must markings is replaced, all markings must volumetric expansion test using the be performed by a person holding an be transferred to the attachment on the water jacket method or by proof approval as specified in § 107.805 of repaired cylinder. pressure test. A requalification must be this chapter. A person performing a (10) Walls, heads or bottoms of performed 12 years after the original test rebuild function shall be considered a cylinders with defects or leaks in base date and at 12-year intervals thereafter. manufacturer subject to the metal may not be repaired, but may be (ii) For a cylinder having a water requirements of § 178.2(a)(2) and replaced as provided for in paragraph capacity over 12 pounds— subpart C of part 178 of this subchapter. (d) of this section. (A) By proof pressure test. A The person performing a repair, rebuild, (c) Additional repair requirements for requalification must be performed 12 or reheat treatment must record the test 4L cylinders. (1) Repairs to a DOT 4L years after the original test date and at results as specified in § 180.215. Each cylinder are limited to the following: 7-year intervals; or cylinder that is successfully repaired or (i) The removal of either end of the (B) By volumetric expansion test using rebuilt must be marked in accordance insulation jacket to permit access to the the water jacket method. A with § 180.213. cylinder, piping system, or neck tube. requalification must be performed 12 (b) General repair requirements. Any (ii) The replacement of the neck tube. years after the original test date and at repair of a cylinder must be made in At least a 13 mm (0.51 inch) piece of the 12-year intervals thereafter. accordance with the following: original neck tube must be protruding (2) A DOT specification 3A, 3AA, or (1) The repair and the inspection of above the cylinder’s top end. The 3AL cylinder must be requalified by the work performed must be made in original weld attaching the neck tube to volumetric expansion test using the accordance with the requirements of the the cylinder must be sound and the water jacket method. A requalification cylinder specification. replacement neck tube must be welded must be performed 12 years after the (2) The person performing the repair to this remaining piece of the original original test date and at 12-year shall use the procedure, equipment, and neck tube. intervals thereafter. filler metal or brazing material as (iii) The replacement of material such (k) Requalification of foreign cylinders authorized by the approval issued under as, but not limited to, the insulating filled for export. § 107.805 of this chapter. material and the piping system within Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58519 the insulation space is authorized. The (iii) Inspected and have test data subpart with acceptable results must be replacement material must be reviewed to determine conformance marked as specified in this section. equivalent to that used at the time of with the applicable cylinder Required markings may not be altered or original manufacture. specification; and removed. (iv) Other welding procedures which (iv) Made of material that conforms to (b) Placement of markings. Each are qualified by CGA Pamphlet C–3, and the specification. Determination of cylinder must be plainly and not excluded by the definition of conformance shall include chemical permanently marked into the metal of rebuild, are authorized. analysis, verification, inspection and the cylinder as permitted by the (2) After repair, the cylinder must be: tensile testing of the replaced part. applicable specification. Unless (i) Pressure tested in accordance with Tensile tests must be performed on the authorized by the cylinder specification, the specifications under which the replaced part after heat treatment by lots marking on the cylinder sidewall is cylinder was originally manufactured; defined in the applicable specification. prohibited. (ii) Leak tested before and after (3) A record of rebuilding must be (1) Required specification markings assembly of the insulation jacket using completed for each cylinder rebuilt in must be legible so as to be readily a mass spectrometer detection system; the format presented in § 180.215(d). visible at all times. Markings that are and (4) Rebuilding a cylinder with brazed becoming illegible may be remarked on (iii) Tested for heat conductivity seams is prohibited. the cylinder as provided by the original requirements. (5) When an end with the original specification. The markings may be (d) General rebuilding requirements. cylinder specification markings is placed on any portion of the upper end (1) The rebuilding of a cylinder must be replaced, all markings must be of the cylinder excluding the sidewall. made in accordance with the following transferred to the rebuilt cylinder. No steel stamping, engraving, or requirements: (e) Additional rebuilding scribing may be made in the sidewall of (i) The person rebuilding the cylinder requirements for DOT–4L cylinders. (1) the cylinder unless specifically must use the procedures and equipment The rebuilding of a DOT 4L cylinder is: permitted in the applicable cylinder as authorized by the approval issued (i) Substituting or adding material in specification. A metal plate if used, under § 107.805 of this chapter. the insulation space not identical to that must be attached as provided by the (ii) After removal of a non-pressure used in the original manufacture of that original specification. component and before replacement of cylinder; (2) Markings of previous tests may not any non-pressure component, the (ii) Making a weld repair not to be obliterated, except when the space cylinder must be visually inspected in exceed 150 mm (5.9 inches) in length on originally provided for requalification accordance with CGA Pamphlet C–6. the longitudinal seam of the cylinder or dates becomes filled, additional dates (iii) The rebuilder may rebuild a DOT 300 mm (11.8 inches) in length on a may be added as follows: 4B, 4BA or 4BW cylinder having a water circumferential weld joint of the (i) All preceding test dates may be capacity of 20 pounds or greater by cylinder; or removed by peening provided that— replacing a head of the cylinder using a (iii) Replacing the outer jacket. (A) Permission is obtained from the circumferential joint. When this weld (2) Reheat treatment of cylinders is cylinder owner; joint is located at other than an original prohibited. (B) The minimum wall thickness is welded joint, a notation of this (3) After rebuilding, each inner maintained in accordance with modification shall be shown on the containment vessel must be proof manufacturing specifications for the Manufacturer’s Report of Rebuilding in pressure tested at 2 times its service cylinder; and § 180.215(d)(2). Weld joint must be on pressure. Each completed assembly (C) The original manufacturing test the cylindrical section of the cylinder. must be leak-tested using a mass date is not removed. (iv) Any welding and the inspection spectrometer detection system. (ii) When the cylinder is fitted with a of the rebuilt cylinder must be in (f) Reheat treatment. (1) Prior to footring, additional dates may be accordance with the requirements of the reheat treatment, each cylinder must be marked on the external surface of the applicable cylinder specification and given a visual inspection, internally and footring. the following requirements: externally, in accordance with (c) Marking method. The depth of (A) Rebuilding of any cylinder § 180.205(f). markings may be no greater than that involving a joint subject to internal (2) Cylinders must be segregated in specified in the applicable specification. pressure may only be performed by lots for reheat treatment. The reheat The markings must be made by fusion welding; treatment and visual inspection must be stamping, engraving, scribing or any (B) Welding shall be performed on an performed in accordance with the method approved in writing by the area free from contaminants; and specification for the cylinders except as Associate Administrator. (C) A weld defect, such as porosity in provided in paragraph (f)(4) of this (1) A cylinder used as a fire a pressure retaining seam, shall be section. extinguisher (§ 180.209(j)) may be completely removed before rewelding. (3) After reheat treatment, each marked by using a pressure sensitive Puddling may be used to remove a weld cylinder in the lot must be subjected to label. defect only by the tungsten inert gas a volumetric expansion test and meet (2) For a DOT 3HT cylinder, the test shielded arc process. the acceptance criteria in the applicable date and RIN must be applied by low- (2) Any rebuilt cylinder must be— specification or be scrapped. stress steel stamps to a depth no greater (i) Heat treated in accordance with (4) After all welding and heat than that prescribed at the time of paragraph (f) of this section; treatment, a test of the new weld must manufacture. Stamping on the sidewall (ii) Subjected to a volumetric be performed as required by the original is not authorized. expansion test on each cylinder as specification. The test results must be (d) Requalification markings. (1) Each specified in CGA Pamphlet C–1, recorded in accordance with § 180.215. cylinder that has successfully passed paragraphs 4 or 5, and Appendices A requalification must be marked with the and B. The results of the tests must § 180.213 Requalification markings. RIN set in a square pattern, between the conform with the applicable cylinder (a) General. Each cylinder that has month and year of the requalification specification; been requalified in accordance with this date. The first character of the RIN must 58520 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules appear in the upper left corner of the (2) 10-year volumetric expansion § 180.215 Reporting and record retention square pattern; the second in the upper test(cylinders conforming to requirements. right; the third in the lower right, and § 180.209(b)): (a) Facility records. A person who the fourth in the lower left. Example: A requalifies, repairs or rebuilds cylinders cylinder requalified in September 1998, shall maintain the following records and approved by a person who has been where the requalification is performed: issued RIN ‘‘A123’’, would be marked (1) Current RIN issuance letter; plainly and permanently into the metal (2) If the RIN has expired and renewal of the cylinder in accordance with (3) Special filling limits up to 10% in is pending, a copy of the renewal location requirements of the cylinder excess of the marked service pressure request; specification or on a metal plate (cylinders conforming to § 173.302a(b) (3) Copies of notifications to Associate permanently secured to the cylinder in of this subchapter): Administrator required under § 107.805 accordance with paragraph (b) of this of this subchapter; section: (4) Current copies of those portions of this subchapter that apply to its cylinder requalification and marking activities at that location; (4) Proof pressure test (fire (5) Current copies of all exemptions extinguishers conforming to governing exemption cylinders § 173.309(b) of this subchapter and requalified or marked by the requalifier cylinders conforming to § 180.209(e)): at that location; and (6) The information contained in each applicable CGA or ASTM standard (2) Upon a written request, variation incorporated by reference in § 171.7 of from the marking requirement may be this subchapter that applies to the approved by the Associate requalifier’s activities. This information Administrator. must be the same as contained in the (5) 5-year external visual inspection (3) Exception. A cylinder subject to edition incorporated by reference in (cylinders conforming to § 180.209(g)): the requirements of § 173.301(l) of this § 171.7 of this subchapter. subchapter may not be marked with a (b) Requalification records. Daily RIN. records of visual inspection, pressure (e) Size of markings. The size of the test, and ultrasonic examination, as markings must be at least 6.35 mm (1⁄4 applicable, must be maintained by the in.) high, except that RIN characters (6) Requalification after a repair person who performs the requalification must be at least 3.18 mm (1⁄8 in.) high. procedure and volumetrically tested until either the expiration of the (f) Illustrations of the required (cylinders conforming to § 180.211): requalification period or until the marking information for metric-marked cylinder is again requalified, whichever cylinders and exemption cylinders after occurs first. A single date may be used requalification are as follows: for each test sheet, provided each test on the sheet was conducted on that date. (1) Ultrasonic examination: Ditto marks or a solid vertical line may (7) Requalification after a repair be used to indicate repetition of the procedure and proof pressure tested preceding entry for the following (cylinders conforming to § 180.211): entries: date; actual dimensions; if present, manufacturer’s name or symbol; if present, owner’s name or (2) Volumetric expansion test: symbol and test operator. Blank spaces may not be used to indicate repetition of a prior entry. The records must (8) Requalification after a rebuilding include the following information: procedure: (1) Pressure test records. For each test (g) Illustrations of the required to demonstrate calibration, the date; marking information for nonmetric- serial number of the calibrated cylinder; marked cylinders and exemption calibration test pressure; total, elastic cylinders after requalification are as and permanent expansions; and legible follows: identification of test operator. The test (9) DOT 8 series cylinder shell operator must be able to demonstrate (1) 5-year volumetric expansion test; reinspection only: that the results of the daily calibration 10-year volumetric expansion test verification correspond to the (cylinders conforming to § 180.209(f) hydrostatic tests that were performed on and (h)); or 12-year volumetric that day. The daily verification of expansion test(fire extinguishers calibration(s) may be recorded on the conforming to § 173.309(b) of this same sheets as, and with, test records (10) DOT 8 series cylinder shell and subchapter and cylinders conforming to for that date. § 180.209(e)and § 180.209(g)): porous filler reinspection: (2) Pressure test and visual inspection records. The date of requalification; serial number; DOT specification or exemption number; marked pressure; actual dimensions; if present, Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58521 manufacturer’s name or symbol; if indicate the date of the earlier (2) A record for rebuilding, in present, owner’s name or symbol; result inspection or test. accordance with § 180.211(d), must be of visual inspection; actual test (3) Wall stress. Calculations of average completed for each cylinder rebuilt. The pressure; total, elastic and permanent and maximum wall stress pursuant to record must be clear, legible, and expansions; percent permanent § 173.302a(b)(3) of this subchapter, if contain the following information: expansion; disposition, with reason for performed; Cylinder Identification any repeated test, rejection or (4) Calibration certificates. The most Original Manufacturer llllllllll condemnation; and legible recent certificate of calibration must be Cylinder Specification Number and Service identification of test operator. For each maintained for each calibrated cylinder. Pressure llllllllllllllll cylinder marked pursuant to (5) Ultrasonic examination records. Cylinder Serial Number lllllllll § 173.302a(b)(5) of this subchapter, the The information prescribed in ASTM E Date at Original Manufacturer lllllll test sheet must indicate the method by 797 or ASTM E 213 as applicable. Other Identification Marks llllllll which any average or maximum wall (c) Repair, rebuilding or reheat Chemical Analysis of Replacement Parts stress was computed. Records must be treatment records. (1) Records covering lllllllllll kept for all completed, as well as welding or brazing repairs, rebuilding or Parts Being Replaced unsuccessful tests. The entry for a reheat treating shall be retained for a Heat Identification llllllllllll second test under CGA Pamphlet C–1 minimum of fifteen years by the Steel Manufactured by llllllllll after a failure to hold test pressure, must approved facility. Analysis Performed by llllllllll

CPS Si Mn Ni Cr Mo Cu Al Zn

Record of Physical Test of Replacement Parts

Yield PSI Tensile PSI Elongation in inches Reduction in area % Weld bend Weld tensile

Record of Volumetric Expansion Test Calculated volumetric capacity of the cylinder being rebuilt-llllllll lbs.

Actual test Permanent Percent of total to Volumetric pressure Total expansion expansion permanent capacity

(Permanent expansion may not exceed 10% complies with all of the requirements in Issued in Washington D.C. on October 15, of the total expansion) (Volumetric capacity Subchapter C of 49 CFR. 1998, under authority delegated in 49 CFR of a rebuilt cylinder must be within plus or Repair Technician llllllllllll Part 106, Appendix A. minus 3% at the calculated capacity) Date llllllllllllllllll Alan I. Roberts, I certify that this rebuilt cylinder is Company Representative lllllllll Associate Administrator for Hazardous accurately represented by the data above and Date llllllllllllllllll Materials Safety. [FR Doc. 98–28118 Filed 10–26–98; 10:46 am] BILLING CODE 4910±60±P federal register October 30,1998 Friday Pay-per-Call Rule;ProposedRule 16 CFRPart308 Commission Federal Trade Part III 58523 58524 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

FEDERAL TRADE COMMISSION Rule Review—Comment. FTC File No. introductory messages (‘‘preambles’’) at R611016.’’ the start of such pay-per-call programs. 16 CFR Part 308 Notification of interest in Title II also prohibited pay-per-call participating in the public workshop providers from engaging in certain Pay-per-Call Rule should be submitted in writing, practices, such as directing their separately from written comments, to services to children under 12 years of AGENCY: Federal Trade Commission. Carole Danielson, Division of Marketing age, or providing pay-per-call services ACTION: Notice of proposed rulemaking. Practices, Federal Trade Commission, through an 800 number or other toll-free 6th Street and Pennsylvania Avenue, number. In addition, the statute directed SUMMARY: In this document, the Federal N.W., Washington, DC 20580. The pay-per-call providers to comply with Trade Commission (the ‘‘Commission’’ public workshop will be held at the any additional standards the or ‘‘FTC’’) issues a Notice of Proposed Federal Trade Commission, 6th Street Commission might prescribe to prevent Rulemaking to amend the Commission’s and Pennsylvania Avenue, N.W., abusive practices.5 Trade Regulation Rule Pursuant to the Washington, DC 20580. Title III of TDDRA required that the Telephone Disclosure and Dispute FOR FURTHER INFORMATION CONTACT: FTC’s regulations establish procedures Resolution Act of 1992 (the ‘‘900- Adam Cohn, (202) 326–3411, Marianne for dispute resolution and for correcting Number Rule,’’ ‘‘Rule,’’ or ‘‘original Schwanke, (202) 326–3165, or Carole billing errors in connection with Rule’’), 16 CFR Part 308, and requests Danielson, (202) 326–3115, Division of telephone-billed purchases. public comment on the proposed Marketing Practices, Bureau of Both Title II and Title III directed the changes. The 900-Number Rule governs Consumer Protection, Federal Trade Commission to include provisions in its the advertising and operation of pay- Commission, Washington, DC 20580. regulations that would prohibit acts or per-call services, and establishes billing SUPPLEMENTARY INFORMATION: practices that evade the rules or dispute procedures for those services as undermine the rights provided to well as for other telephone-billed Section A. Background consumers by the statute.6 purchases. 1. Telephone Disclosure and Dispute Notwithstanding Section 45(a)(2) of This document invites written 7 Resolution Act of 1992 (‘‘TDDRA’’) Title 15, TDDRA granted the FTC comments on all issues raised by the jurisdiction over common carriers in proposed changes and, specifically, on Congress enacted the Telephone connection with their activities as the questions set forth in Section I of Disclosure and Dispute Resolution Act service bureaus or pay-per-call this Notice. This document also of 1992 (‘‘TDDRA’’), 15 U.S.C. 5701 et providers, as well as in connection with contains an invitation to participate in seq., to curtail the unfair and deceptive any billing and collection activities a public workshop to be held following practices engaged in by some pay-per- undertaken on behalf of providers of the close of the comment period, to call businesses and to encourage the pay-per-call services or other telephone- afford the Commission staff and growth of the legitimate pay-per-call billed purchases.8 interested parties an opportunity to industry.1 Title I of TDDRA directed the explore and discuss issues raised during Federal Communications Commission 2. 900-Number Rule the comment period. (‘‘FCC’’) to adopt regulations defining On July 26, 1993, the FTC adopted its the obligations of common carriers in DATES: Written comments will be 900-Number Rule, 16 CFR Part 308; the connection with providing tariffed accepted until January 8, 1999. Rule became effective on November 1, common carrier services to pay-per-call 9 Notification of interest in participating 1993. Pursuant to TDDRA’s services.2 Title I also set forth the in the public workshop also must be requirements, the 900-Number Rule original definition of ‘‘pay-per-call submitted on or before January 8, 1999. incorporated the definition of ‘‘pay-per- services,’’ which limited the term to The public workshop will be held on call services’’ set out in Section 228 of certain specified services accessed February 25 and 26, 1999, from 9:00 the Communications Act of 1934, thus through the use of a 900 telephone a.m. until 5:00 p.m. limiting the applicability of the number.3 advertising and operating standards of ADDRESSES: Six paper copies of each Titles II and III of TDDRA required the Rule to services accessed by dialing written comment should be submitted the FTC to prescribe regulations a 900 number.10 Among other to the Office of the Secretary, Room 159, governing various aspects of telephone- provisions, the Rule requires that Federal Trade Commission, 6th Street billed purchases, including pay-per-call advertisements for pay-per-call services and Pennsylvania Avenue, N.W., services.4 Title II of TDDRA directed the contain certain disclosures of material Washington, DC 20580. To encourage Commission to enact regulations prompt and efficient review and governing the advertising and operation 5 15 U.S.C. 5711(a)(2)(J). dissemination of the comments to the of pay-per-call services. Among other 6 15 U.S.C. 5711(a)(4) and 5721(a)(1). public, all comments should also be things, TDDRA specified that certain 7 Under that Section, ‘‘common carriers subject to submitted, if possible, in electronic disclosures appear in all advertising for the Acts to regulate commerce’’ are exempted from FTC jurisdiction to prohibit the use of ‘‘unfair form, on either a 51⁄4 or a 31⁄2 inch pay-per-call programs and in methods of competition in or affecting commerce computer disk, with a label on the disk and unfair or deceptive acts or practices in or stating the name of the commenter and 1 This statement summarizes Congress’ findings affecting commerce.’’ the name and version of the word regarding the pay-per-call industry at the time it 8 15 U.S.C. 5711(c) and 5721(c). The term processing program used to create the passed the legislation. For greater detail concerning ‘‘telephone-billed purchase,’’ as used in TDDRA, the problems Congress found to be associated with refers to a purchase of goods or services (other than document. (Programs based on DOS are pay-per-call services, see 15 U.S.C. 5701(b). telephone toll services) that is ‘‘completed solely as preferred. Files from other operating 2 Title I is codified at 47 U.S.C. 228. The FCC a consequence of completion of the call or a systems should be submitted in ASCII published its Notice of Proposed Rulemaking and subsequent dialing, touch tone entry, or comparable text format to be accepted.) Individual Notice of Inquiry at 58 FR 14371 (March 17, 1993). action of the caller.’’ 15 U.S.C. 5724(1). The term members of the public filing comments The FCC’s Rules are at 47 CFR 64.1501 et seq. includes all pay-per-call services. 3 47 U.S.C. 228(i)(1). See note 14, infra. 9 The Statement of Basis and Purpose and Final need not submit multiple copies or 4 Title II of TDDRA is codified at 15 U.S.C. 5711– Rule were published at 58 FR 42364 (August 9, comments in electronic form. Comments 5714. Title III of TDDRA is codified at 15 U.S.C. 1993). should be identified as ‘‘Pay-Per-Call 5721–5724. 10 See note 14, infra. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58525 information, including the cost of the the [Federal Trade] Commission by rule may, 4. Initiation of Rule Review and Request call. This material information must notwithstanding subparagraphs (B) and (C) for Comment of Section 228(i)(1) of such Act, extend such also be included in an introductory The 900-Number Rule provides that message (preamble) at the beginning of definition to other similar services providing audio information or audio entertainment if the Commission initiate a rulemaking any pay-per-call program where the cost review proceeding to evaluate the Rule’s of the call could exceed two dollars. The the [Federal Trade] Commission determines that such services are susceptible to the operation no later than four years after Rule requires that anyone who calls a its effective date of November 1, 1993.20 pay-per-call service must be given the unfair and deceptive practices that are prohibited by the rules prescribed pursuant The Commission decided to conduct opportunity to hang up at the to section 201(a) [of TDDRA]. [Emphasis and this review in conjunction with a conclusion of the preamble without footnote added.] Request for Comment to obtain incurring any charge for the call. In information on whether, pursuant to addition, the Rule requires that all The 1996 Act thus authorizes the Section 701 of the 1996 Act, the preambles to pay-per-call services state FTC, through its 900-Number Rule, to definition of ‘‘pay-per-call services’’ that individuals under the age of 18 extend the definition of the term ‘‘pay- should be extended to cover audiotext must have the permission of a parent or per-call services’’—and, in effect, the services that fall outside the original guardian to complete the call. Rule’s coverage—to include certain definition. Thus, on March 12, 1997, the The 900-Number Rule also establishes audiotext 15 services that may use a Commission published a notice in the procedures for resolving billing disputes dialing prefix other than 900 16 and Federal Register seeking comment on for telephone-billed purchases, such as services for which there is a charge that the overall effectiveness of the Rule and pay-per-call services.11 The Rule is greater than, or in addition to, the on whether the Commission should imposes certain obligations on entities charge for transmission of the call.17 If extend the definition of ‘‘pay-per-call that bill and collect for telephone-billed the FTC determines that such audio services’’ to include a broader array of purchases, such as investigating and information and entertainment services audio information and audio responding to billing disputes.12 are susceptible to the unfair and entertainment services provided deceptive practices that are prohibited through the telephone.21 3. Telecommunications Act of 1996 by its 900-Number Rule, the FTC has the Written and oral comment. In (‘‘1996 Act’’) authority to define those services as response to the notice, the Commission On February 8, 1996, the President ‘‘pay-per-call services’’ and require received 34 comments from industry, signed into law the them to comply with the Rule’s law enforcement, and consumer Telecommunications Act of 1996 (the provisions. representatives, as well as from 22 ‘‘1996 Act’’) 13 to provide a regulatory Section 701 of the 1996 Act also individual consumers. Virtually all of framework for telecommunications and modified several provisions in Title I of the commenters praised the effectiveness of the 900-Number Rule in information technologies and services. TDDRA, directing the FCC to amend its combating the deceptive and unfair Section 701(b) of the 1996 Act provides regulations regarding pay-per-call practices that had plagued the 900- that: services.18 The FCC took action to number industry before the Rule was Section 204 of [TDDRA] is amended to implement this statutory mandate in read as follows: promulgated. They also strongly July 1996.19 In that proceeding, the FCC (1) The term ‘pay-per-call services’ has the supported the Rule’s continuing role as also proposed certain other meaning provided in section 228(i) of the the centerpiece in the effort to 14 modifications to its rules not expressly Communications Act of 1934, except that implement TDDRA’s goals of protecting mandated by statute in an attempt to consumers and promoting the growth of 11 reduce fraudulent practices in the The term ‘‘telephone-billed purchase’’ is the pay-per-call industry. As will be defined more broadly than the term ‘‘pay-per-call audiotext industry. services,’’ and thus includes within its scope all discussed in more detail infra, a number pay-per-call services. See note 8, supra, and of commenters suggested modifications discussion, infra, on the definition of ‘‘telephone- (C) which is accessed through use of a 900 telephone number or other prefix or area code they believed would enhance the billed purchase.’’ consumer protections offered by the 12 Other TDDRA protections were established by designated by the [Federal Communications] the FCC in that agency’s rules set out at 47 CFR Commission in accordance with subsection (b)(5) Rule and reduce some of the burden on 64.1501 et seq. Under the FCC rules, a consumer’s [47 U.S.C. 228(b)(5)].‘‘ industry. In addition, the majority of telephone service cannot be disconnected for failure 15 The term ’’audiotext‘‘ describes audio commenters strongly urged the information and entertainment services offered to pay charges for a 900-number call, and 900- Commission to extend the Rule’s number blocking must be made available to through any dialing pattern, including services consumers who do not wish to have access to 900- accessed via 900 numbers as well as those accessed definition of ‘‘pay-per-call services’’ to number services from their telephone lines. through international and other non-900-number cover audio information and audio dialing patterns. 13 Pub. L. 104, 701, 110 Stat. 56 (1996) [codified entertainment services provided by 16 47 U.S.C. 228(i)(1)(C). at 47 U.S.C. 228 and at 15 U.S.C. 5714(1)]. international direct dialing and by other 17 47 U.S.C. 228(i)(1)(B). 14 Section 228(i)(1) of the Communications Act of 18 non-900-number dialing patterns. Many 1934, 47 U.S.C. 228(i)(1) provides that: Congress changed the definition of ’’pay-per- call services‘‘ as it applies to the FCC’s regulations commenters also supported additional The term ‘pay-per-call services’ means any under Title I of TDDRA by deleting the exception service— restrictions on telephone-billed for ’’tariffed services,‘‘ without authorizing either purchases that result in monthly or (A) in which any person provides or purports to the FTC or the FCC to further modify the Title I provide— definition in any way. The FTC’s authority to other recurring charges on consumers’ (i) audio information or audio entertainment change the definition only impacts Titles II and III telephone bills. produced or packaged by such person; of TDDRA. Thus, the FTC’s proposed definition of On June 19 and 20, 1997, staff of the (ii) access to simultaneous voice conversation ‘‘pay-per-call services’’ will only apply to this Rule Commission conducted a public service; or and not to any regulations promulgated by the FCC workshop at the Federal Trade (iii) any service, including the provision of a pursuant to Title I of TDDRA. product, the charges for which are assessed on the 19 Policies and Rules Governing Interstate Pay- basis of completion of the call; Per-Call and Other Information Services Pursuant to 20 16 CFR 308.9. (B) for which the caller pays a per-call or per- the Telecommunications Act of 1996, Order and 21 62 FR 11749 (March 12, 1997). time-interval charge that is greater than, or in Notice of Proposed Rulemaking, CC Docket No. 96- 22 A list of the commenters, and the acronyms addition to, the charge for transmission of the call; 146, 11 FCC Rcd 14738 (1996) (‘‘FCC Pay-Per-Call that will be used to identify each commenter in this and Order and Notice’’). notice, is appended as Attachment A. 58526 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Commission in Washington, DC. burdening the pay-per-call industry.30 that providers who offer their services Fourteen associations, individual Recognizing that the Rule appears to through dialing patterns other than the businesses, consumer organizations, and have substantially reduced the abuses 900-number exchange can charge less law enforcement agencies, each with an that had plagued the 900-number for their services precisely because the affected interest and ability to represent industry, commenters uniformly believe non-900-number format enables others with similar interests, were that it is important to retain the Rule.31 providers to collect unauthorized and selected to engage in the roundtable Despite the success of the Rule in illegitimate charges from consumers discussion.23 The participants were correcting the abuses in the 900-number without fear of chargebacks, because encouraged to address each other’s industry, complaints about other types non-900 numbers do not provide the comments and questions, and were of audiotext services (accessed via TDDRA protections to consumers.37 dialing patterns other than 900 asked to respond to questions from 5. Notice of Proposed Rulemaking Commission staff. The workshop was numbers) continue to flood into the open to the public; oral comments from offices of local exchange carriers, Regardless of the factors that prompt the public were invited and several consumer groups, and law enforcement providers to use alternatives to the 900- individuals spoke during the course of agencies.32 The majority of complaints number dialing pattern to bill for their the two-day workshop. The entire now involve 800 numbers, international audiotext services, the question is proceeding was transcribed and placed numbers, or other dialing patterns that whether these alternate billing methods on the public record.24 The public do not use the 900-number prefix.33 undermine the rights that Congress record to date, including the comments Many consumer and law enforcement intended for consumers to have under that were submitted in electronic form agencies also have been receiving TDDRA. In TDDRA, Congress provided and the workshop transcript, has been complaints from consumers who have that consumers of audio information placed on the Commission’s web site on discovered unexplained monthly and entertainment services should be the Internet.25 recurring charges on their telephone protected from unfair and deceptive Many commenters reported that the bills for services that were never practices and that they should have 34 38 900-Number Rule has been successful in authorized, ordered, received, or used. adequate rights of redress. Congress reducing the abuses that led to the Some commenters expressed the also realized that it could not anticipate passage of TDDRA 26 and that, since the opinion that the effectiveness of the all provisions that might be necessary to 900-Number Rule became effective, 900-Number Rule has led fraudulent prevent abusive practices. Therefore, consumer confidence has increased 27 operators to find alternate ways to TDDRA gave the Commission the market their services in order to evade flexibility to prescribe ‘‘such additional and complaints about 900-number 35 services have decreased dramatically.28 the Rule’s protections. Conversely, standards’’ as may be needed ‘‘to some industry members argue that the 39 Commenters credited the 900-Number prevent abusive practices.’’ In high chargeback rates experienced by Rule with these positive addition, in both Title II (advertising services offered through 900 numbers developments.29 Commenters generally and pay-per-call standards) and Title III have driven providers to seek other agreed that the Rule has been effective (billing and collection), Congress methods of delivering their services and yet balanced, without unnecessarily directed the Commission to include in of billing and collecting for them. In its Rules provisions to ‘‘prohibit unfair addition, these commenters point to 23 The selected participants were: AT&T, or deceptive acts or practices that evade FLORIDA, GORDON, ISA, ITA, MCI, NAAG, NCL, high transport rates charged by the such rules or undermine the rights SW, PILGRIM, PMAA, SNET, TPI, and TSIA. interexchange carriers in the United provided to customers’’ by the statute.40 Consumers Union also was selected as a States as a reason for the development The record developed in this matter, participant, but was unable to send a representative of alternate ways to market and bill for as well as the Commission’s law to the workshop. audio information and entertainment 24 References to the workshop transcript are cited enforcement experience, leave little as ‘‘Tr.’’ followed by the appropriate page services. Thus, these audio information doubt that many important consumer designation. References to comments are cited as or entertainment providers allege that protections provided by TDDRA have ‘‘[acronym of commenter] at [page number].’’ by using non-900-number dialing been eroded. The Commission believes 25 The electronic portions of the public record can patterns they can provide consumers that the record supports the necessity of be found at http://www.ftc.gov/ftc/consumer.htm. The full paper record is available in Room 130 at with services that are similar or establishing additional standards to the Federal Trade Commission, 6th Street and comparable to those offered through 900 ensure that consumers receive the Pennsylvania Avenue, N.W., Washington, DC numbers, but cost consumers less.36 protections and rights that TDDRA 20580, telephone number: 202–FTC–HELP (202– Consumer groups and law enforcement intended. Accordingly, the Commission 382–4357). responded to this argument by alleging 26 AARP at 1; AT&T at 2; FLORIDA at 4; has determined to retain its 900-Number GORDON at 1; ISA at 2; NAAG at 2; NCL at 2; Rule, but proposes to revise the Rule. PMAA at 1–2; SNET at 2–3; TPI at 2; and TSIA at 30 See, e.g., PMAA at 1–2, 4; NCL at 2; ISA at 2. The Commission believes these 2–3. 31 See, e.g., FLORIDA at 4; GORDON at 1; NCL revisions are necessary in order to 27 at 2; PMAA at 4. GORDON at 1; AT&T at 2; NAAG at 2; PMAA ensure that technological innovations in at 1–2; TPI at 2; TSIA at 2–3. TSIA believes that 32 After an initial decrease in the number of pay- the requirements established by the FTC in its 900- per-call complaints received by such organizations the telecommunications industry do not Number Rule have benefitted consumers and after the Rule became effective, the numbers soon undermine the rights of consumers or enhanced the fairness and credibility of the began to increase. Although pay-per-call complaints otherwise operate to destroy the dropped to 16th place in 1994 after the Rule became audiotext industry. TSIA at 2–3. credibility and confidence that 28 AT&T at 3; TPI at 2; AMERITECH at 2; effective, by 1996 they had climbed back to 12th GORDON at 1; FLORIDA at 10; SW at 4; SNET at place. NCL at 2. 2–3; NAAG at 2; NCL at 2; US WEST at 4–5 (noting 33 ALLIANCE at 2–3; CINCINNATI at 1; FLORIDA 37 Tr. at 367–68, 372–74, 380–81, 388–460. a ‘‘materially significant reduction’’ in 900-number at 4; NAAG at 1; NCL at 2; SW at 2; SNET at 3– 38 15 U.S.C. 5701(a)(7). complaints). 4. NCL states that, in 1996, it received three times 39 15 U.S.C. 5711(a)(2)(J). 29 According to one representative comment, the as many complaints about 800 numbers as it did 40 15 U.S.C. 5711(a)(4) and 5721(a)(1). In Title II, 900-Number Rule can be credited with ‘‘eradicating about 900 numbers. NCL at 2. Congress specifically directs the Commission to abuses in the pay-per-call industry’’ and helping to 34 NCL at 3–4; SW at 3; Tr. at 382, 384, 498–504. prohibit ‘‘alternative billing or other procedures’’ make 900 numbers ‘‘a viable marketing and 35 ALLIANCE at 2–3; FLORIDA at 4; NCL at 2; which are unfair or deceptive or undermine the promotional tool for many legitimate marketers of NAAG at 1; SW at 2; SNET at 3–4. rights provided to consumers under that Title. 15 consumer products and services.’’ PMAA at 1–2. 36 TSIA at 21. U.S.C. 5711(a)(4). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58527 consumers and vendors have come to non-900-number audiotext services charges billed to a telephone subscriber expect from the legitimate pay-per-call raises consumer protection implications for a benefit received by someone else, industry. because: (1) these transactions are not such as entering a sweepstakes to win By this document, the Commission is blockable in the manner contemplated a prize; and (2) unauthorized charges to proposing revisions to its 900-Number by Title I of TDDRA; (2) they are not consumers who are unaware that by Rule. The proposed changes to the Rule subject to the advertising requirements filling out a form, they are deemed to are made pursuant to the rule review and preamble disclosure requirements have authorized a telephone-billed requirements of the Rule,41 and provided by Title II of TDDRA; and (3) purchase. These practices are a growing pursuant to the authority granted to the in instances where the charge for the part of a larger problem known as Commission by TDDRA to prevent cost of the information or entertainment ‘‘cramming’’—the practice of placing abusive practices, to prohibit practices is hidden within the cost of a toll call unauthorized and deceptive charges on that evade the Commission’s rules or (i.e., international audiotext),43 these consumers’ telephone bills. undermine the rights of consumers, and transactions are not subject to the Emergence of a new type of service to encourage the growth of the dispute resolution mechanisms bureau providing critical billing and legitimate pay-per-call industry.42 The provided by Title III of TDDRA. collection functions. Service bureaus proposed changes also are made Emergence of a market for non- now provide much more than the access pursuant to the authority granted to the audiotext telephone-billed purchases to voice storage and telephone service Commission by Section 701(b) of the based on ANI. More recently, there has that they typically provided when the Telecommunications Act of 1996 Act to been a sharp rise in the development of original Rule was promulgated. In the extend the definition of ‘‘pay-per-call a market for non-audiotext telephone- current marketplace, a key function of services’’ to cover similar audio billed purchases that are in many cases service bureaus is to provide a information and entertainment services not directly related to contractual framework for billing and that are susceptible to the unfair or telecommunications services or sold by collection. As the recent Commission deceptive acts or practices prohibited by common carriers. For example, and State cramming cases have shown, the 900-Number Rule. As discussed in consumers can now purchase voice some service bureaus, known as ‘‘billing detail infra, the Commission believes mail, Internet access, club memberships, aggregators’’ (i.e., billing clearinghouses) the proposed modifications are and a host of other services from act as intermediaries between vendors necessary to ensure that the Rule fulfills vendors who charge the consumer’s and the local telephone companies the Congressional mandate in TDDRA telephone bill, often based solely on (‘‘local exchange carriers’’ or ‘‘LECs’’). that the FTC encourage the growth of Automatic Number Identification These service bureaus process their the legitimate audiotext industry, while (ANI).44 For these non-audiotext client-vendors’ billing data into the curtailing those practices that are transactions, the telephone is merely the electronic format required by the LEC, abusive, unfair or deceptive, that evade instrument of purchase, and the product contract with the LECs to have their the 900-Number Rule, or that or service may have little or nothing to client-vendors’ charges appear on line undermine the rights of consumers do with the telephone. Rather, the subscribers’ telephone bills, and act as provided by TDDRA. The Commission telephone becomes much like a credit conduits to the vendor for revenues believes that the proposed modifications card data capture terminal, but without collected by the LECs from consumers strike a balance between maximizing the security or accompanying dispute for the vendors’ services. In addition, consumer protections and minimizing resolution procedures and other service bureaus also commonly the burden on the audiotext industry. consumer protections afforded to structure revenue-sharing arrangements with foreign telephone companies and Section B. Overview consumers who make purchases with credit cards. provide services to bill consumers by 1. Changes in the Marketplace The use of the telephone bill to charge direct mail. At the time the original Rule was for services, products, and Increase in the level of ‘‘chargebacks’’ promulgated, the only significant memberships, even without the use of for 900 numbers. Audiotext vendors example of a ‘‘telephone-billed ANI. Consumers can sign up for a report difficulty collecting valid 900- purchase’’ was a purchase of audiotext service in person, and charge the service number charges from consumers. They services over a 900 number. These to a telephone number (their own or report that, when LECs are unsuccessful services were (1) blockable under Title someone else’s), merely by filling in a in collecting these legitimate charges, I of TDDRA, (2) covered by the phone number on a form. This has the vendors have great difficulty in advertising restrictions and free resulted in two newer types of obtaining the information they need to preamble disclosure requirements of unauthorized charges: (1) unauthorized collect the charges on their own. Title II of TDDRA, and (3) fully 2. Summary of Proposed Major Changes protected by the dispute resolution 43 International audiotext services are accessed by to the Rule procedures of Title III of TDDRA. dialing international telephone numbers. These In the years since promulgation of the services are beyond the current scope of the Rule Each of the changes in the because they are not provided over 900 numbers, Commission’s 900-Number Rule, the marketplace described above has led to and because the resulting charges are not greater the growth of deceptive and fraudulent marketplace for telephone-billed than or in addition to the charge for transmission, purchases has changed in several a requirement for pay-per-call services contained in practices in areas not adequately significant ways: the TDDRA definition. 47 U.S.C. 228(i). To receive addressed by the original Rule. The Proliferation of audiotext transactions payment for their services, international audiotext proposed Rule is intended to address operators enter revenue-sharing arrangements with these deceptive or abusive practices by that use dialing patterns other than 900 foreign telephone companies, and thus obtain a numbers (such as international portion of the funds paid by callers to the telephone adapting the Rule to respond to the audiotext and audiotext provided over companies for transmission of international calls to changes in the marketplace in a manner toll-free numbers). The development of the audiotext services. consistent with the original intent of 44 Automatic Number Identification (‘‘ANI’’) is Congress. Each of the proposed changes technology similar to ‘‘Caller-ID’’ that permits the 41 16 CFR 308.9. recipient of a telephone call to identify (or is discussed in detail in this Notice. 42 15 U.S.C. 5711(a)(2)(J), 5711(a)(4), and ‘‘capture’’) the telephone number from which a call Additionally, Commission staff has 5721(a)(1). is made. prepared an unofficial redlined version 58528 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules of the proposed Rule, showing proposed material terms and conditions of the pay-per-call services in the absence of a additions and deletions, which is agreement, along with a ‘‘personal presubscription agreement with the available on the Commission’s Internet identification number’’ (‘‘PIN’’) to person to be billed for the service. Thus, site at www.ftc.gov. A summary of the prevent unauthorized access to the a single call to a pay-per-call service proposed major changes to the Rule is service. could no longer result in a consumer set forth below: Consumers cannot block calls from being enrolled in a ‘‘psychic club’’ or Coverage of Rule: The proposed their lines to toll-free telephone other service plan which would result revisions to the Rule would ensure that numbers, so they cannot block access to in recurring fees. The vendor would be TDDRA protections apply to the offer audiotext services that are reached by required to get advance authorization of and sale of every audiotext service, dialing toll-free numbers. Thus, the the person to be billed for any pay-per- regardless of the dialing pattern used to proposed revisions to the requirements call service that resulted in recurring access the service. In addition, the for presubscription agreements protect fees, and would be required to send that revisions would ensure that consumers from incurring charges for consumer a written copy of the international audiotext services could services they cannot block. The agreement before any chargers could not be offered in a manner that evades proposed revisions provide this accrue. TDDRA’s dispute resolution procedures. protection by requiring that a contract Third, consumers would be able to This would be achieved in two ways. exist between the provider and the dispute unauthorized charges First, the proposal would expand the person responsible for paying for the ‘‘crammed’’ on to their phone bills and Rule’s definition of ‘‘pay-per-call service before the service is provided, have these charges removed. Under the services.’’ Second, the proposal would and by requiring an effective method to proposed Rule, when a consumer prohibit the practice of hiding the cost prevent unauthorized access to the disputes a charge for a service that of an audiotext service within a contracted service. cannot be blocked,45 the billing entity, regulated toll charge for either a Finally, the proposed Rule gives in order to sustain that charge, must domestic or international long-distance consumers additional rights to dispute provide the consumer with actual proof call. charges for audiotext accessed by that the consumer expressly authorized These proposed revisions address dialing toll-free numbers. If consumers the transaction that resulted in the abuses that have arisen in connection have not entered into a ‘‘presubscription charge. Similarly, under the proposed with audiotext services offered through agreement’’ that satisfies the proposed Rule, when a consumer disputes a international numbers and other non- Rule’s definition of that term, but are charge purportedly resulting from a 900 dialing patterns. Chief among these charged for audiotext services accessed presubscription agreement, the billing abuses is nondisclosure (or inadequate through a toll-free number, the revised entity cannot sustain the charge absent disclosure) of cost and other material Rule permits consumers to challenge evidence of a valid presubscription information to consumers before they such charges as ‘‘billing errors,’’ and the agreement with the person being billed. incur charges for an audiotext service. Rule’s dispute resolution rights and Unless the billing entity provides such The revised Rule also would give protections would apply. proof, the charge must be forgiven. consumers protection against charges Unauthorized Charges, or These revisions are intended to deter for audiotext services that cannot be ‘‘Cramming’’: Unauthorized charges that the current widespread problem of blocked from their telephone lines. In are ‘‘crammed’’ on to consumers’’ cramming. addition, the proposed revisions would telephone bills generally are for Fourth, the proposed Rule provides ensure that consumers who incur telephone-billed purchases that cannot dispute resolution protections for all charges for an audiotext service can use be blocked by 900-number blocking, and transactions that result in non-toll TDDRA procedures to dispute such many of them are recurring charges. The charges on a subscriber’s phone bill, charges, regardless of the number dialed proposed Rule takes a four-fold even if the charges for such purchases to access the service. approach to the problem of cramming. Toll-free Numbers: The original Rule First, the proposed Rule provides that did not result from a telephone call and prohibits charging consumers for an any telephone-billed purchase, other were not based on ANI capture. This audiotext service accessed by dialing an than one that arose from a blockable would be accomplished by expanding 800 or other toll-free number, but it (i.e., 900-number) transaction, requires the definition of ‘‘telephone-billed creates a limited exception to this the express authorization of the person purchase’’ to encompass all such prohibition where the consumer enters to be billed for the purchase. The transactions. This revision would into a prior agreement (a proposed Rule also prohibits vendors, ensure that a consumer who has an ‘‘presubscription agreement’’) with the service bureaus, and billing entities unauthorized charge on his or her provider to pay for the service. The from collecting or attempting to collect phone bill—regardless of whether it proposed Rule tightens this exception to for such unblockable telephone-billed arose from a telephone call—would be prohibit certain abusive practices that purchase charges where the vendor, able to contest the charge through the have arisen in connection with billing service bureau, or billing entity knew or Rule’s dispute resolution procedures. for audiotext services accessed by should have known that the purchase This revision would address the dialing toll-free numbers. These abuses was not authorized by the person who growing problem of unauthorized include sham presubscription was the target of the collection efforts. charges being ‘‘crammed’’ on to a agreements, and ineffective methods of The revised Rule would create strong consumer’s telephone bill as a result of preventing unauthorized access to incentives for vendors, service bureaus, filling out a sweepstakes entry form or services under presubscription and billing entities who offer some action other than placing a agreements. The proposed Rule would telephoned-billed transactions that telephone call. require an audiotext provider, before cannot be blocked to ensure that such Liability of Billing Entities and Billing permitting access to a service, to have a transactions are authorized by the party Aggregators for Unauthorized Charges: contractual agreement with the party who is to be billed for them. 45 The proposed Rule identifies these as charges responsible for paying for the service. Second, vendors would be prohibited that cannot be blocked in advance by 900-number The provider would be required to send from causing consumers to receive blocking, or TDDRA blocking, as provided by 47 that party a written statement of all monthly or other recurring charges for U.S.C. 228(c). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58529

The proposed Rule would impose (1) designate which of them will bear that an urgent business or personal liability on billing entities and billing ultimate responsibility for receiving and reason exists to call a number that turns aggregators for providing unscrupulous responding to billing disputes, and (2) out to access a pay-per-call service. The vendors the sine qua non for disclose that designation on the consumer who calls such a number in cramming—access to the telephone telephone bill. response to a page may incur charges for billing and collection system. These These revisions would address the audiotext services without intending to parties would be unable to evade problem experienced by many do so. This Rule modification will responsibility under the revised Rule for consumers who attempt to dispute a eliminate this problem. Similarly, the processing charges and inserting them charge for a telephone-billed purchase, disclosure requirements for facsimile in consumers’ monthly telephone only to be faced with collection action solicitations will address the increasing billing statements on behalf of by a party other than the original billing problem of consumers being urged by unscrupulous ‘‘crammers’’ and other entity, and who are passed from one facsimile messages to call numbers that vendors who blatantly violate the Rule. billing entity to another without ever turn out to be pay-per-call services, Holding billing aggregators achieving resolution of their dispute. without adequate disclosures of cost responsible for their part in cramming Multiple parties involved in billing and and other material information about would be accomplished by amending collection could not hand a consumer the advertised service. the Rule’s definition of ‘‘service bureau’’ off from one to another, but instead to specifically include billing would be required to respond to the Section C. Discussion of Proposed aggregators. This ensures that billing consumer’s dispute. Revisions to the Rule aggregators would be liable for civil Deceptive Statements to Billing 1. General Changes penalties any time they ‘‘knew or Entities Conducting Investigations: The should have known’’ that their client- proposed Rule would prevent vendors, Title of the Rule. The Commission vendors were in violation of the Rule. service bureaus, and providing carriers proposes to change the title of the Rule Billing entities’ responsibilities would from using deceptive tactics in to the ‘‘Rule Concerning Pay-Per-Call be increased via a proposed provision attempting to sustain an illegitimate Services and Other Telephone-Billed that would hold them accountable for charge for a telephone-billed purchase. Purchases.’’ The current title (‘‘Trade billing a consumer for unblockable This would be accomplished by a Regulation Rule Pursuant to the telephone-billed purchases when they provision in the proposed Rule that Telephone Disclosure and Dispute knew or should have known that the would prohibit a vendor, service Resolution Act of 1992’’) does not transaction was not authorized by the bureau, or providing carrier from adequately describe the purpose of the consumer being billed. providing false or misleading Rule. The Commission believes that it is The proposed revisions addresses the information to a billing entity important for the industry and problem of billing entities and billing conducting an investigation of a consumers to recognize that the Rule aggregators knowingly profiting from, disputed charge for a telephone-billed provides more than just pay-per-call facilitating, encouraging, and yet purchase. Thus, practices such as falsely service standards. The Rule also creates evading responsibility for, illegal representing to a billing entity that a a structure for resolving billing disputes practices such as cramming. consumer called a 900 number when, in that applies to a broad array of Disputed Charges: The proposed Rule fact, the consumer called a toll-free telephone-billed purchase transactions. would ensure that any time a consumer number, would be prohibited by the The Commission believes that the title disputes a charge for a telephone-billed proposed Rule. ‘‘Rule Concerning Pay-Per-Call Services purchase, the consumer will not be Solicitations Transmitted by Pager or and Other Telephone-Billed Purchases’’ required to pay that charge until he or Facsimile: The proposed Rule addresses more accurately describes the substance she is provided with both documentary the use of pagers and facsimile of the Rule. evidence of the validity of the charge machines to solicit calls to audiotext and a written explanation describing services. These two techniques have Organization of the Rule. The why the charge is valid. been used deceptively in connection Commission proposes to reorganize the This would be accomplished by with audiotext services that are accessed original Rule in several ways to make it specifically prohibiting collection of a through numbers other than 900 easier to read and understand. In the charge for a telephone-billed purchase numbers and that therefore cannot be original Rule, Section 308.2 defined that is in dispute unless the validity of distinguished from non-audiotext terms relating to the advertising and the charge has been investigated, and numbers. The proposed Rule would operation of pay-per-call services, while unless the consumer has received an require disclosure of cost and other Section 308.7 defined terms relating to explanation and documentary evidence material information in any facsimile- the billing and collection of telephone- supporting the charge’s validity. The transmitted or pager-transmitted billed purchases. The Commission Rule would also be modified to give solicitation to call a pay-per-call service. proposes moving all of the Rule’s more specific guidance as to what the The proposed Rule would accomplish definitions into a single section, requirement (present in the current this by adding two new provisions, one proposed Section 308.2. Rule) for an ‘‘investigation’’ entails. To expressly requiring the same disclosures The proposed Rule also rearranges the prevent ‘‘passing the buck’’ among in pager solicitations that are required order of several other provisions, and multiple parties involved in collecting a in advertisements in other media, and divides the Rule into four subparts in charge for a telephone-billed purchase another expressly requiring the same order to improve its organization and to (e.g., the LEC that prepares and sends disclosures in facsimile solicitations provide greater clarity: Subpart A, the consumer a phone bill, the billing that are required in advertisements in Scope and Definitions; Subpart B, Pay- aggregator that forwards billing data other media. Per-Call Services; Subpart C, Pay-Per- from the vendor to the LEC, and the The disclosure requirement for pager Call Services and Other Telephone- vendor that handles the transaction solicitations of calls to pay-per-call Billed Purchases; and Subpart D, from which the charge arises), the services will remedy the deception that General Provisions. The Commission proposed Rule imposes a new occurs when a consumer receives a also proposes dividing Sections 308.3 requirement that these multiple parties pager message and reasonably assumes (Advertising of pay-per-call services) 58530 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules and 308.5 (Pay-per-call service because all pay-per-call services were meaning of the term ‘‘billing entity’’ will standards) of the original Rule into telephone-billed purchases. The be required to comply with the steps set several smaller sections, each dealing proposed Rule simplifies the forth in that section. This proposed with a discrete subject. This approach terminology by using ‘‘vendor’’ to refer change recognizes that multiple parties allows provisions dealing with specific to all providers of telephone-billed often play a role in the billing and subjects (e.g., children’s advertising or purchases, including all providers of collection of charges for telephone- liability for refunds) to be more easily pay-per-call services. billed purchases. The proposed identified within the Rule. (3) Use of 888 and 877 numbers. Since modification helps preserve the Global Wording Changes. The the original Rule was promulgated, the consumer’s billing dispute rights in Commission decided to make several use of toll-free ‘‘888’’ and ‘‘877’’ situations where a disputed charge for a wording changes throughout the numbers has grown. Therefore, the telephone-billed purchase is passed proposed Rule to standardize the usage proposed Rule has added ‘‘888’’ and from one billing entity to another. of specific words and phrases, to more ‘‘877’’ to those provisions of the Rule Under the original Rule, this practice accurately reflect the extended coverage that deal with the use of toll-free often allowed the consumer’s rights to of the proposed Rule, and to reflect numbers.47 be extinguished. changes in technology since the original The revision to the definition of 2. Proposed Revisions to Specific Rule was promulgated. Each change is ‘‘billing entity’’ is designed to cover all Provisions discussed below. of the participants in the typical billing (1) Caller, consumer, and customer. The proposed Rule makes no and collection process for telephone- The original Rule used three terms to substantive revisions to the following billed purchases. In most cases, the LEC describe the individual to be protected sections of the original Rule, apart from sends the initial billing statement to the by the Rule’s requirements— renumbering and any of the global consumer. On that billing statement, the ‘‘consumer,’’ ‘‘caller,’’ and ‘‘customer.’’ wording changes discussed above that LEC provides the disclosures about The Commission proposes to change the might affect these sections: 308.3(e), consumers’ rights and obligations Rule’s usage of these three words. In 308.4, 308.5(h), 308.5(k), and 308.8.48 regarding billing errors, as required by most cases, the word ‘‘consumer’’ has Subpart A—Scope and Definitions original Section 308.7(n). Once a been replaced by one of the other terms consumer disputes a charge, the other because the term ‘‘consumer’’ is not Section 308.1 Scope of Regulations participants in the billing and collection sufficiently precise to describe the The proposed Rule adds a citation to process (i.e., the vendor or service intended beneficiary of the Rule’s the Telecommunications Act of 1996. bureau) may attempt to collect the protections. The terms ‘‘caller’’ and disputed charge by calling the consumer ‘‘customer’’ better reflect the purpose Section 308.2 Definitions and making oral statements that the and intent of the various provisions. For The definitions that formerly consumer has an obligation to pay. example, the proposed Rule uses the appeared in the billing and collection The proposed Rule clarifies that any word ‘‘caller’’ in provisions that regulate section of the original Rule have been communication to a consumer regarding preamble disclosures because the moved to Section 308.2 of the proposed an alleged debt will bring a person person making the call is the beneficiary Rule, which contains all definitions. within the definition of ‘‘billing entity,’’ of the protections in those sections. On The definitions have been reordered as long as the communication contains the other hand, the dispute resolution alphabetically and renumbered a statement of debt involving a provisions afford rights to the accordingly. The following definitions telephone-billed purchase. Thus, the ‘‘customer,’’ a term that includes both from the original Rule are unchanged, proposed Rule ensures that, where the caller and the person who receives apart from renumbering: ‘‘bona fide multiple entities (including LECs, the billing statement. In other educational service,’’ ‘‘Commission,’’ vendors, service bureaus, and third- provisions, such as the definition of ‘‘program-length commercial,’’ party debt collectors) are involved in ‘‘presubscription agreement’’ or ‘‘providing carrier,’’ ‘‘reasonably collecting a charge for a telephone- ‘‘personal identification number,’’ the understandable volume,’’ ‘‘slow and billed purchase, each of those entities more generic term ‘‘consumer’’ has been deliberate manner,’’ and ‘‘sweepstakes.’’ will be considered a billing entity and retained because in those instances (1) Section 308.2(a)—Billing entity. therefore must afford a consumer his or ‘‘caller’’ or ‘‘customer’’ would be too The proposed Rule clarifies that the her dispute resolution rights under the narrow. In some instances, the proposed term ‘‘billing entity’’ covers a person Rule. Rule clarifies that the person referred to who transmits any statement of debt to (2) Section 308.2(b)—Billing error. by the Rule is the person to whom the a customer for a telephone-billed This definition is also a key concept billing statement has been, or will be, purchase, including, but not limited to, underlying the dispute resolution directed.46 a telephone bill. The definition of provisions set forth in proposed Section (2) Vendor. The term ‘‘vendor’’ in the ‘‘billing entity’’ is critical to the dispute 308.20. Under that section, a billing original Rule was used in the billing and resolution process governed by Section entity will be required to refund any collection section (Section 308.7 of the 308.20 of the proposed Rule because all disputed amount on a consumer’s bill, original Rule) to describe a person or persons and entities that fall within the once the consumer has invoked his or entity that offers goods or services her rights by submitting a ‘‘billing error through a telephone-billed purchase. 47 Proposed Sections 308.2(b)(4), 308.7(e), and notice,’’ unless the billing entity can The term ‘‘provider of pay-per-call 308.13 contain those references. provide evidence to the consumer that services’’ was used in the sections of the 48 These sections of the original Rule correspond there was no billing error and that the to the following sections of the proposed Rule: 49 Rule regulating advertising and Original § 308.3(e) is now proposed § 308.5 disputed amount is a legitimate debt. operation of pay-per-call services (Advertising to children prohibited); original (Sections 308.2 through 308.6). Even § 308.4 is now proposed § 308.8 (Special rule for 49 If a disputed charge is found not to be a ‘‘billing under the original Rule, a ‘‘provider of infrequent publications); original § 308.5(h) is now error,’’ the sole consequence is that the Rule does proposed § 308.11 (Prohibition on services to not require the billing entity to refund the pay-per-call services’’ was a ‘‘vendor’’ children); original § 308.5(k) is now proposed consumer’s money. The fact that a charge is not a § 308.15 (Refunds to customers); and original ‘‘billing error’’ in no way affects any rights that a 46 See, e.g., Section 308.2(j)(1). § 308.8 is now proposed § 308.21 (Severability). consumer may have under State law to dispute that Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58531

Original definition. The original Rule Changes in the marketplace. In the Commission 59 law enforcement delineates eight different types of billing years since adoption of the original experience, the Commission believes errors. Six of these billing errors track Rule, the marketplace has changed. In that unauthorized charges pose a very almost verbatim provisions in TDDRA addition to pay-per-call services, many serious threat to consumers in the that define the term ‘‘billing error’’ in a other goods and services are now the telephone-billed purchase marketplace, similar list.50 A seventh billing error 51 subject of telephone-billed purchases. and thus a corresponding threat to the was added to the statutory definition More important, billing based on ANI healthy growth of this innovative pursuant to the Commission’s authority for services accessed or received purchasing mechanism. to create additional billing errors,52 and through dialing patterns other than 900 Proposed definition. The first eight in the eighth instance, the Commission numbers (e.g., audiotext provided over billing errors listed in Section 308.2(b) determined that the Rule should not international or toll-free numbers) has of the proposed Rule remain virtually track the statute word-for-word. In that become more widely used. These identical to those in the original Rule.60 instance, the statute stated that a billing dialing patterns are not blockable in the The proposed Rule, however, adds three error occurred when a telephone-billed manner intended by TDDRA. Thus, it is additional billing errors to make newly- purchase was not made by the customer. clear now that it is possible to offer emerging problems associated with By contrast, the original Rule provided telephone-billed purchases through unauthorized charges subject to the that a billing error occurred when the methods that cannot be blocked as Rule’s dispute resolution procedures.61 telephone-billed purchase was not made TDDRA intended. A discussion of these provisions by the customer nor made from the In addition to audiotext services, follows. customer’s telephone.53 many other products and services, Section 308.2(b)(9)—Charges resulting As a result of that modification, under including club memberships, voice from a purported presubscription the original Rule, a consumer was not mail, Internet access, personal 800 agreement that does not meet the entitled to dispute a telephone-billed numbers, and pagers, are now available requirements of the Rule. This proposed purchase made from that consumer’s through telephone-billed purchases.56 Section specifies that the term ‘‘billing telephone on the ground that it was Though some of these services are error’’ includes any charge incurred unauthorized. The Commission refined offered in a non-deceptive manner, in pursuant to a purported presubscription the statutory definition of ‘‘billing error’’ many instances, consumers have been agreement that does not meet the in this way because, at the time the charged for these miscellaneous services requirements of the proposed Rule’s original Rule was promulgated, virtually on their telephone bills even though definition of that term.62 This would all ‘‘telephone-billed purchases’’ were they had never authorized or ordered address a significant problem that has purchases of pay-per-call services, the goods or services for which they surfaced since the Rule was accessed by dialing 900 numbers. were being charged.57 These promulgated, whereby consumers who Because TDDRA mandated that 900- unauthorized charges have been have never entered into a number blocking be made available to characterized by the popular press as presubscription agreement with a consumers by common carriers,54 the ‘‘cramming.’’ In theory, there is no limit Commission reasoned that TDDRA to the types of products or services that paid calling cards despite informing consumers that empowered the consumer to block may be billed on consumers’ telephone credits would be issued); People of Illinois v. Coral Communications Inc., No. 98 CH 3526 (Cir. Ct., Ch. access to pay-per-call services. The statements. The Commission has received Div.—Cook County, filed March 1998) (using Commission therefore believed it sweepstakes entry forms as authorization to bill for unnecessary to make available in the approximately 9,000 complaints about pre-paid calling cards and voice mail, and case of alleged unauthorized telephone- cramming since October 1997. sustaining charges for unordered pre-paid calling cards and voice mail despite informing consumers billed purchases (in most cases for 900- Cramming has become the fifth most common complaint by consumers, as that credits would be issued); People of Illinois v. number services) the dispute resolution reflected in consumer contacts with the New World Telecommunications Inc., No. 98 CH mechanisms appropriate to other kinds 115 (Cir. Ct., 7th Jud. Cir.—Sangamon County, filed FTC through its Consumer Response of disputed charges.55 March 19, 1998) (billing line subscribers for voice Center. Based on the record in this rule mail which they did not order, and failing to review proceeding, on the consumer provide effective billing dispute mechanism); State charge or to receive a refund of that charge. In of Missouri ex. rel. Nixon v. Coral Communications addition, under State law a consumer may have complaints received about this problem, Inc., No. 98 CC 716 (Cir. Ct., St. Louis County, filed 58 rights to dispute charges that are not ‘‘billing and on recent State and 1998) (using miniature typeface on contest entry errors.’’ The Commission’s Rule cannot by law forms as authorization to bill for pre-paid calling supersede any rights a consumer may have under consumer’s right under State law to refuse to pay cards and voice mail, and sending follow-up State law to dispute such charges, unless such law for a service that was not ordered. miniature typeface ‘‘junk mail’’ postcards as is inconsistent with the FTC’s Rule. 15 U.S.C. 56 Such services, often referred to as ‘‘enhanced confirmation and last chance for consumer to 5722(a). services,’’ are billed on a telephone bill through the cancel services). 50 15 U.S.C. 5724(2)(B–G). use of the 42–50–01 Exchange Message Interface 59 See, e.g., FTC v. Interactive Audiotext Services, 51 16 CFR 308.7(a)(2)(viii). (‘‘EMI’’) billing records. Inc., No. 98–3049 CBM (C.D. Calif., filed Apr. 22, 52 15 U.S.C. 5724(2)(H). 57 FTC v. Hold Billing Services, Ltd., No. 1998); FTC v. International Telemedia Associates, 53 The statute provided that a billing error SA98CA0629 FB (W.D. Texas, filed July 19, 1998). Inc., No. 1–98–CV–1935 (N.D. Ga., filed July 10, occurred when there was ‘‘[a] reflection on a billing 58 See, e.g., State of Wisconsin v. Telecom 1998); and Hold Billing Services. statement for a telephone-billed purchase which Operator Service d/b/a USP&C Operator Services, 60 The only change is that the proposed Section was not made by the customer or, if made, was not No. 98 CV 2319 (Cir Ct. Milwaukee County, filed 308.2(b)(8) slightly modifies the language in Section in the amount reflected on such statement.’’ 15 March 27, 1998; amended complaint filed July 27, 308.7(2)(viii) of the original Rule to more clearly U.S.C. 5724(2)(A). By contrast, the original Rule 1998) (continuing to bill line subscribers who deny convey that it is a billing error to identify charges defined the equivalent billing error as a ‘‘[a] ordering services or who request backup regarding for telephone-billed purchases in a manner that reflection on a billing statement of a telephone- charges); People of Illinois v. RCP Enterprises violates the Rule’s requirements for billing billed purchase that was not made by the customer Group, et. al., No. 98 CH 112 (Cir. Ct., 7th Jud. statement disclosures. nor made from the telephone of the customer who Cir.—Sangamon County, filed March 19, 1998) 61 Specifically, these amendments are proposed was billed for the purchase or, if made, was not in (using 1⁄16-inch print on opposite side of pursuant to the Commission’s authority under 15 the amount reflected on such statement.’’ 16 CFR sweepstakes entry form as authorization to bill U.S.C. 5724(2)(H) to prescribe additional billing 308.7(a)(2)(i) [Emphasis added]. consumer for calling card services); People of errors, and pursuant to its rulemaking authority 54 47 U.S.C. 228(c). Illinois v. BLJ Communications, No. 98 CH 113 (Cir. under 15 U.S.C. 5711(a), 5721(a), and 5723. 55 The fact that a consumer could not dispute Ct., 7th Jud. Cir.—Sangamon County, filed March 62 ‘‘Presubscription agreement’’ is defined in the these charges under the Rule in no way affected the 19, 1998) (sustaining charges for unordered pre- proposed Rule at § 308.2(j). 58532 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules provider are charged for audiotext avoided had the consumer elected and to receive proof of authorization services that are, or allegedly have been, TDDRA blocking. This proposed billing before collection activities continue. provided pursuant to a presubscription error dovetails with proposed Section Some commenters urged that the agreement.63 308.17, which explicitly requires the Commission require that all audiotext This situation occurs when a ‘‘express authorization’’ of the person to services be provided through the 900- telephone line subscriber is billed for be billed for any telephone-billed number dialing platform.71 Instead, the charges under a presubscription purchase that is not avoidable by Commission proposes a more flexible agreement entered into by some other TDDRA blocking. approach—specifying that it is a billing party who dialed an 800 or other toll- The Commission does not propose error if the consumer receives charges free number using the subscriber’s for a telephone-billed purchase that the revising the definition of ‘‘billing error’’ telephone.64 The Commission continues consumer did not authorize, and the to bring in all unauthorized telephone- to be concerned that presubscription telephone-billed purchase could not billed purchase charges. The agreements not be mere shams to justify have been prevented by TDDRA Commission believes that this would billing a consumer for calls to toll-free blocking. This will create an incentive sweep too broadly. In many instances, numbers, or for services sold under an for providers to use a dialing platform consumers still have a practical, simple, ‘‘agreement’’ that is based solely on the that is subject to TDDRA-blocking, and cost-free method of avoiding a large fact that a telephone call was placed because by using such a dialing category of unauthorized telephone- from that consumer’s telephone (i.e., platform, these providers will not be 65 billed purchases—namely, blocking of based solely on ANI capture). The obligated under the proposed Rule to proposed new definition of services accessed through 900 68 secure evidence that such charges were presubscription agreement is based on numbers. Generally, where 900- expressly authorized by the person this concern, and the corresponding number blocking would have been being billed. billing error contained in Section effective to enable a consumer to avoid The Commission uses the term 308.2(b)(9) provides recourse for an unauthorized charge, the ‘‘express authorization’’ in describing consumers who have been wrongly Commission believes it would be an this billing error to indicate that it is not billed for telephone-billed purchases undue burden on billing entities to sufficient for a provider to demonstrate resulting from purported require them to determine if such that the telephone of the consumer 69 presubscription agreements entered into charges were, in fact, authorized. being billed was the telephone used to by another party, or resulting from In situations where audiotext services make the call that resulted in a purported presubscription agreements 66 are offered through an unblockable telephone-billed purchase. In order to that otherwise do not meet the dialing pattern, however, a consumer sustain the charge, the provider must requirements of the Rule. has no means to protect herself from show tangible evidence that the person Section 308.2(b)(10)—Unauthorized being billed for charges that result from being billed for the telephone-billed charges not avoidable by blocking. another person accessing the service purchase actually consented to the Section 308.2(b)(10) of the proposed using her telephone. Many of the charge.72 Rule would treat as a billing error any commenters and workshop participants Section 308.2(b)(11)—Inconsistency charges on a customer’s billing identified this as a significant problem with blocking option selected. The statement that were ‘‘not expressly and a source of numerous complaints.70 Commission is aware of complaints authorized by that customer’’ and that Where TDDRA blocking cannot from consumers who allege that 900- were not ‘‘blockable pursuant to 47 effectively prevent access to telephone- number calls have been made from their U.S.C. 228(c).’’ 67 This provision would billed purchasing, the vendor, service telephones even though the consumer enable a consumer to dispute a charge had previously opted to have a 900- and to receive a refund when a charge bureau, and billing entity should have the obligation to ensure that the line number block on their telephone.73 was not authorized by that consumer, Section 308.2(b)(11) of the proposed and the charge would not have been subscriber has expressly authorized the purchase. Under these circumstances, Rule addresses this situation by specifying that it is a billing error when 63 See, e.g., Interactive Audiotext Services. See, consumers who believe that they have also, FLORIDA at 8; NCL at 4–5; NAAG at 11; Tr. been billed for an unauthorized charge a consumer receives a telephone bill at 169, 193–94. should have the right to dispute the containing a charge that is inconsistent 64 See, e.g., Interactive Audiotext Services. In its charge under proposed Section 308.20, with a blocking option already selected comment, NCL stated that most of the audiotext- by the consumer. This billing error will related complaints they receive involve 800 numbers. NCL at 2. 68 Many commenters noted that the availability of provide the consumer with a means to 65 See, e.g., U.S. v. American TelNet, Inc., No. 94– 900-number blocking has resulted in a dramatic challenge such a charge and receive a 2551 CIV–NESBIT (S.D. Fla., filed Nov. 30, 1994). decrease in the number of complaints about 900- credit or refund if in fact the consumer In that case, the Commission obtained $2 million number services. AMERITECH at 2; AT&T at 3; had already elected to block access to in redress and a civil penalty of $500,000 against FLORIDA at 10; SW at 4; SNET at 2–3; NCL at 2. that type of service or dialing pattern. American TelNet for charging consumers for 69 However, where a single call to a blockable 900 information or entertainment services accessed by number results in monthly or other recurring calling 800 numbers, in violation of the Rule’s charges on a consumer’s telephone bill, the 71 See, e.g., SW at 2; SNET at 2; AT&T at 29–30. requirements. Commission does not believe that it would be an 72 For example, a tape recording of the person 66 For there to be a ‘‘purported’’ presubscription undue burden for a billing entity to show proof of who was billed, agreeing in advance to pay for the agreement, the vendor need not explicitly claim authorization. A single call to a pay-per-call service charge after hearing the material terms of the that a charge is based on a presubscription is simply not enough for a vendor, service bureau, agreement, would constitute evidence of such agreement. For instance, where a consumer is or billing entity to assume that the telephone authorization sufficient to show that this billing charged without authorization for a service for subscriber has authorized his or her enrollment in error did not occur. Of course, if the voice recording which the proposed Rule requires a presubscription a ‘‘psychic club’’ or other similar service plan. The was not of the person being billed, the vendor agreement (e.g., monthly or other recurring pay-per- Commission proposes requiring that these charges would not be able to sustain the charge. For call service charges), the consumer can make use of be provided only pursuant to a presubscription additional examples of evidence of ‘‘express this billing error to dispute the charge. agreement that meets all of the requirements of the authorization,’’ see discussion of proposed § 308.17, 67 Proposed Section 308.2(b)(10). Only the form of proposed Rule’s definition of that term. See infra. blocking specified by Congress in TDDRA, codified proposed Section 308.14. 73 TURJANICA at 1. See also, Transcript of ‘‘FCC at 47 U.S.C. 228(c), will satisfy the requirements of 70 FLORIDA at 8; NCL at 4–5; NAAG at 11; Tr. Public Forum on Local Exchange Carrier Billing for this subsection. at 169, 193–94, 472. Other Businesses,’’ (June 24, 1997), p. 113. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58533

Under this scenario, regardless of the do not use the 900-number prefix.76 In designed specifically to remedy this reason for the block being ineffective general, the problems associated with potential for misrepresentation. (i.e., because the block failed or because these non-900 audiotext services are the Based on the record in this someone using the consumer’s same types of problems that Title II of proceeding, and based on the telephone ’’dialed around‘‘ the block),74 TDDRA was designed to prohibit— Commission’s enforcement experience, the consumer would be entitled to a misrepresentations about the underlying the Commission believes that, in any credit or refund if they had elected to service to be provided and inadequate circumstance where a provider solicits block such calls and the block was cost disclosures.77 consumers to call a telephone number to supposed to be in place at the time the The influx of complaints in recent receive information or entertainment, call was placed. The Commission years concerning international audiotext and where that provider will receive a believes that once a consumer has taken services drew particular attention from per-call or per-minute payment as a the affirmative step to elect TDDRA commenters, many of whom asserted result of those calls, the service is blocking, this should be interpreted as that it is essential for international susceptible to the same types of unfair an affirmative statement that the audiotext services to be subject to the and deceptive practices that are consumer does not authorize any same rules as 900-number services in prohibited by Title II of TDDRA.82 The telephone-billed purchases that should order to ‘‘level the playing field’’ among record does not suggest any justification have been blocked by this action. If the competitors and protect all consumers for treating non-900 audiotext services TDDRA blocking system fails, the who utilize such services.78 In fact, any differently from 900 audiotext economic burden should not be borne several commenters suggested that all services.83 In both circumstances, the by the consumer who had taken the audiotext services should be restricted two key factors which create the steps available to guard against access to to the 900-number dialing pattern to incentive and susceptibility for fraud such purchases. ensure adequate protection to are both present: instantaneous consumers.79 The two commenters purchase by virtue of placement of a (3) Section 308.2(e)—Customer. The representing the international audiotext telephone call, and receipt of definition of ’’customer‘‘ remains largely industry were the only commenters who remuneration from the call revenue to unchanged. Depending upon the opposed the extension of the definition the provider of the audio information or context, the term refers to either the of ‘‘pay-per-call services’’ to include entertainment. person who made the call or the person international dialing patterns.80 Proposed definition of ‘‘pay-per-call who received the bill for a telephone- Characteristics of services that should services.’’ Pursuant to the authority billed purchase, or both. The only be covered by the Rule. The granted to the Commission under proposed substantive change is that an Commission believes that there are two Section 701(b) of the 1996 Act, the unnecessarily limiting phrase at the end fundamental distinguishing Commission proposes to extend the of the definition was deleted. The characteristics of all audiotext services: definition of ‘‘pay-per-call services’’ to Commission intends for this definition (1) the instantaneous nature of the cover all purchases of telephone-based to cover any recipient of a bill for a transaction; and (2) the eventual receipt audio information or audio telephone-billed purchase, regardless of of remuneration by the provider of the entertainment services. The new whether he or she is the subscriber. audio information or entertainment. The definition is set forth in Section 308.2(g) (4) Section 308.2(f)—Pay-per-call instantaneous creation of a financial of the proposed Rule. purchase. The Commission has added a obligation—the result of the instant Section 308.2(g)(1) sets forth the definition of ‘‘pay-per-call purchase’’ to capture of ANI by the provider—not statutory definition of ‘‘pay-per-call fill the need for a term that succinctly only enhances the convenience for the services.’’ Sections 308.2(g)(2)–(3) refers to both an attempt to purchase a seller and buyer, it also creates fertile augment this definition while retaining pay-per-call service as well as an actual ground for deception.81 Title II of the substance of 47 U.S.C. 228(i)(1)(A) purchase of such services. TDDRA, and the provisions of the and 228(i)(2), pursuant to the (5) Section 308.2(g)—Pay-per-call original Rule that implemented it, were Commission’s mandate under Section service—Background. Virtually all 701 of the 1996 Act. The proposed 76 ALLIANCE at 2–3; CINCINNATI at 1; FLORIDA definition is designed to bring within its interested parties—industry as well as at 4; NAAG at 1; NCL at 2; SW at 2; SNET at 3– consumer advocates and law reach any audio information or 4. NCL states that, in 1996, it received three times entertainment service, accessed by enforcement—overwhelmingly support as many complaints about 800 numbers as it did extending the definition of ‘‘pay-per-call about 900 numbers. (NCL at 2). dialing any telephone number or receipt 77 service’’ to cover audio information and See, e.g., FTC v. International Telemedia of any telephone call, where all or a Associates, Inc., No. 1–98–CV–1935 (N.D. Ga., filed entertainment services that are accessed portion of the charge paid by the July 10, 1998); FTC v. Interactive Audiotext consumer ‘‘results in payment, either and delivered through dialing patterns Services, Inc., No. 98–3049 CBM (C.D. Calif., filed other than 900, but in other respects are April 22, 1998); FTC. v. Audiotex Connection, Inc., directly or indirectly, to the person who similar to 900-number services and No. 97–0726 (E.D.N.Y., filed Feb. 13, 1997); and FTC. v. Daniel B. Lubell, No. 3–96–CV–8200 (S.D. 82 75 See, e.g., FTC v. International Telemedia subject to the same abuses. Indeed, the Iowa, filed Dec. 17, 1996). Associates, Inc., No. 1–98–CV–1935 (N.D. Ga., filed majority of complaints now relate to 78 See, e.g., GORDON at 3; ISA at 26–27; July 10, 1998); FTC v. Interactive Audiotext toll-free numbers, international CINCINNATI at 1; SNET at 3; Tr. at 17–19, 458. Services, Inc., No. 98–3049 CBM (C.D. Calif., filed numbers, or other dialing patterns that 79 SNET at 2; SW at 2; AT&T at 29–30; Tr. at 344, Apr. 22, 1998); and FTC v. Daniel B. Lubell, No. 3– 369. 96–CV–8200 (S.D. Iowa, filed Dec. 17, 1996). See 80 ATN generally; ITA at 3–9. also, ALLIANCE at 2, 4; AARP at 2–3; AT&T at 6; 74 For example, a caller can ‘‘dial around’’ a 900- 81 Congress recognized that the instantaneous CINCINNATI at 1; CU at 1; FLORIDA at 1, 5; number block that has been placed on the line by nature of the purchase of pay-per-call services is GORDON at 2; ISA at 4, 26–27; NAAG at 9–10; NCL the line subscriber’s carrier simply by dialing what made the consumer protections under Title II at 3; SNET at 4; SW at 2; TSIA at 20–21. another carrier’s ‘‘10–XXX’’ access code, then of TDDRA so important. Congress noted that 83 In fact, the record indicates that the danger of dialing a 900 number. ‘‘[b]ecause the consumer most often incurs a unfair and deceptive practices may be greater in 75 AARP at 3; ALLIANCE at 4–6; AT&T at 24; financial obligation as soon as the pay-per-call non-900 audiotext because consumers are not able CINCINNATI at 1; CU at 1; FLORIDA at 2; NCL at transaction is completed, the accuracy and to effectively block access to these services. See, 3; GORDON at 1, 3; ISA at 26–27; SNET at 4–6; SW descriptiveness of vendor advertisements become e.g., International Telemedia Associates and at 2, 4–5; TSIA at 20–21; Tr. at 17–19, 21–24, 38– crucial in avoiding consumer abuse.’’ 15 U.S.C. Interactive Audiotext Services. See also, ALLIANCE 40, 418, 458. 5701(b)(6). at 2–4; NAAG at 2. 58534 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules provides or purports to provide such because the consumers pay ‘‘no more entertainment services as described information or entertainment than the normal toll charge.’’ 90 under 308.2(g)(2) has been made: service.’’ 84 This proposed change in the The fact that an international (a) Where persons are solicited to call an Rule brings international audiotext audiotext or 10–XXX audiotext call may international telephone number in order to receive audio information or entertainment services squarely within the definition cost the same as an ordinary, non- audiotext, ‘‘content neutral’’ toll call is that is not specifically related to or of ‘‘pay-per-call services.’’ dependent on the country where the call not determinative on the issue of supposedly terminates; 94 Both the written comments and the susceptibility to the unfair and workshop discussion strongly supported (b) Where there is a sudden and unusual deceptive practices prohibited by the increase in the number of long-distance calls using remuneration to an information or Commission’s Rule.91 Content neutral to a particular telephone number, or where entertainment provider as the calls (i.e., regular toll calls) might cost the number of calls to an information or distinguishing characteristic of pay-per- the same amount as certain audiotext entertainment number is unusually high; 95 call services.85 Several commenters, calls, but the fact that there is no (c) Where persons are solicited to call one however, were opposed to the strict use remuneration to the call recipient in the or more specific telephone numbers via a specific common carrier in order to receive of a remuneration standard to the extent case of a content neutral call is an audio information or entertainment that it would encompass some services important distinction. Because the services; 96 and where the remuneration was disguised recipient of a content neutral call lacks (d) Where a provider of audio information within the charge paid by the consumer the economic incentive to induce or audio entertainment utilizes for the transmission of the call (e.g., 10– consumers to call as often as possible advertisements that emit electronic signals, XXX audiotext,86 international and stay on the line as long as possible, including data transmission of computer programs or computer instructions, that can 87 content neutral calls are not susceptible audiotext). One commenter supported automatically dial a telephone number which expansion of the definition of pay-per- to the types of unfair and deceptive will result in charges to a subscriber.97 call services to cover ‘‘all international practices that are prohibited by the The fact that any one of these audiotext transactions’’ 88 but strongly original Rule. It is the presence of this circumstances is present will not be opposed the extension of the definition economic incentive in audiotext determinative of whether remuneration of pay-per-call services to cover services that gives rise to the to a provider actually exists. It merely susceptibility to unfair and deceptive audiotext services where the consumer gives rise to a presumption of practices.92 merely pays a domestic toll charge that remuneration that can be rebutted with Circumstances where there will be a credible evidence that, in fact, there has is similar in price to a ‘‘content neutral’’ rebuttable presumption of remuneration 89 been no payment to the provider. (non-audiotext) call. Another to a provider. Although remuneration to commenter went further, opposing Scope of definition. The proposed the service provider is the hallmark of definition of ‘‘pay-per-call services’’ coverage of any audiotext services any pay-per-call service, the actual covers ‘‘audio information and audio where the payment to the provider is details evidencing certain remuneration entertainment [services], including contained within the toll-charge. The agreements are not likely to be simultaneous voice conversation commenter characterized those services immediately available to federal and services.’’ where the remuneration takes the form State law enforcement authorities. For This phrase includes live as well as of a toll charge as ‘‘free to consumers’’ example, information about contractual pre-recorded information or arrangements between a vendor and a entertainment programs, in addition to 84 There are four exemptions which are discussed foreign telephone company may not be so-called ‘‘group access bridged’’ infra: (1) services resulting in de minimis readily available. Nonetheless, services where a provider connects two remuneration to the provider; (2) services delivered pursuant to a valid presubscription agreement; (3) enforcement experience of the FTC and or more callers to discuss a certain services utilizing telecommunications for the deaf; State attorneys general has shown that topic.98 In other words, this definition (4) and tariffed directory services provided by a there are certain circumstances that will include all services where a person common carrier or its affiliate. generally indicate that a revenue- provides or purports to provide the 85 See, e.g., ALLIANCE at 5; NAAG at 9–10; AT&T sharing agreement exists.93 Thus, any of at 8, 25–28; Tr. at 331. audio content of a call, and where that 86 Another alternative to the 900-number dialing these circumstances will give rise to a provider receives payment on the basis pattern is audiotext accessed through a particular rebuttable presumption that payment to of calls placed to access that content. common carrier’s ‘‘10–XXX’’ access code (such as a provider of audio information or ‘‘10–321’’). Under this scenario, callers reach the 94 For example, in Daniel B. Lubell, callers were audiotext service by dialing the 10–XXX number 90 DMA at 2–3. The Commission finds the solicited to call telephone numbers in Guyana and followed by a long-distance telephone number. The characterization of an international audiotext the Dominican Republic in order to enter a resulting toll charge to the consumer thus includes service as ‘‘free’’ to be misleading. This issue is sweepstakes to win a free Hawaiian vacation and a hidden charge for the audiotext service itself, specifically addressed in FTC. v. Daniel B. Lubell, to receive information about free domestic airline because the carrier and the vendor share the call No. 3–96–CV–8200 (S.D. Iowa, filed Dec. 17, 1996). travel. revenue. The FCC effectively put an end to this 91 95 For example, in Audiotex Connection, AT&T practice through a pronouncement in an advisory Similarly, the fact that some 900-number noted an unusual and sudden increase in call opinion letter, which stated that common carriers audiotext programs may cost the same or less than volume to several telephone numbers in Moldova. that engage in such practices are ‘‘not providing many international or domestic toll charges does 96 common carrier services in a just and reasonable not make these services any less susceptible to the For example, solicitations for consumers to call manner as required by Section 201(b) of the unfair and deceptive practices prohibited by the specific telephone numbers, along with instructions [Communications] Act and the spirit of [Title I of Commission’s Rule. for a caller to first dial a carrier’s 10–XXX (now TDDRA].’’ See letter dated September 1, 1995, to 92 On the other hand, to the extent that a great 101–XXXX) access code. portion of the toll charge actually goes towards the Ronald J. Marlowe of Cohen, Berke, Bernstein, 97 Audiotex Connection. genuine cost of transmission of the call, and not to Brodie, Kondell & Laszlo, from John B. Muleta, 98 For example, if a provider offers callers a list Chief, Enforcement Division, Common Carrier the information or entertainment provider, a call might fit within the exemption proposed by the or menu of suggested topics or otherwise represents Bureau, Federal Communications Commission. that callers will be able to listen to or participate These 10–XXX access codes are currently being Commission for de minimis payments to a provider, discussed infra. Proposed Section 308.3(a)(3)(ii). in discussions concerning certain topics, such as converted to ‘‘101–XXX’’ numbers. ‘‘adult’’ chat, that service would be covered by the 87 DMA generally and at 4; ISA at 28; Tr. at 309– 93 See, e.g., Interactive Audiotext Services, Inc., definition. Providers who make no representations 310. No. 98–3049 CBM (C.D. Calif., filed April 22, 1998); regarding the content of a call, and who exercise no 88 ISA at 26–27. FTC v. Audiotex Connection, Inc., No. 97–0726 control, influence, or interest over the content of the 89 ISA at 28. (E.D.N.Y., filed Feb. 13, 1997); and Daniel B. Lubell. call would not be covered by the definition. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58535

The expanded portion of the proposed Section 308.2(g)(3)(i)–(iii)— per-call’’ by demonstrating that the definition includes all of the audio Exemptions. These provisions describe payment for the information or information and audio entertainment the circumstances under which an entertainment is de minimis as defined services included in the statutory audio information or entertainment by Section 308.2(g)(3)(ii). definition of ‘‘pay-per-call’’ 99 but, service will not be considered to be a At some point the amount of shared pursuant to the Commission’s authority ‘‘pay-per-call service’’ and will thus be revenue is not sufficiently large for a under Section 701(b)(1) of the 1996 Act, exempt from the Rule’s requirements, service to be susceptible to the unfair or omits any limitations based on dialing even if it would otherwise meet the deceptive practices prohibited by Title pattern. criteria contained in proposed Section II of TDDRA. Thus, the proposed Rule The proposed expanded definition 308.2(g)(2). Each exemption is discussed sets a specific threshold for such includes only those services ‘‘where the below. revenue, below which an audiotext action of placing the call, receiving a Section 308.2(g)(3)(i)— service would not be considered pay- call, or subsequent dialing, touch-tone Presubscription agreement. This section per-call, even if it otherwise met the entry, or comparable action of the will exempt from the Rule’s definitional criteria. The comments and caller’’ results in a charge to a requirements calls made pursuant to discussion at the workshop support this customer.100 This phrase is based on the valid ‘‘presubscription agreements,’’ approach.107 The Commission has language contained in the original which are described, infra. The proposed that if the provider Rule’s definition of ‘‘telephone-billed Commission’s intention is that no demonstrates that, on average,108 the purchase.’’ 101 However, in addition to exemption will exist unless the payments to the provider will not the language contained in that presubscription agreement meets all of exceed $.05 per minute or $.50 per call definition, the Commission has added the elements of the definition of that for the particular service, then the ’’receiving a call‘‘ to the list of actions term, as set forth in proposed § 308.2(j). service will not be considered pay-per- that would result in a charge to the This includes the requirement that the call.109 The Commission seeks comment consumer and thus be included as a provider demonstrate that the on the appropriate threshold figure for ‘‘pay-per-call service.’’ presubscription agreement has been defining pay-per-call, including any The Commission uses the phrase entered into with the person from whom relevant statistics or other numerical ‘‘receiving a call’’ to refer to all payment is sought. As discussed, infra, support.110 instances where a consumer incurs a the Commission has learned that, in charge by virtue of receiving a telephone many instances, providers of audiotext 107 Tr. at 335–36. The AT&T supplemental call, including traditional ‘‘collect call’’ services have attempted to collect comment argued against a threshold that was payment pursuant to a purported triggered by a certain percentage of the payment services, as well as other scenarios going to the vendor. AT&T–2 at 2–4. However, the whereby the receipt of a call results in presubscription agreement from persons AT&T supplemental comment did not address the a charge. The Commission’s experience who did not authorize or were not possibility of a threshold triggered by a specific per- with callback schemes in response to aware of the existence of such an minute amount as proposed by the Commission. agreement. In order to be valid, a Indeed, many of the arguments made by AT&T in toll-free calls by consumers opposition to a percentage threshold seem to demonstrates that these schemes are presubscription agreement must meet provide support for a nominal per-minute susceptible to the types of abuses the criteria set forth in proposed Section threshold. 104 prohibited by the Commission’s Rule.102 308.2(j). Any agreement not meeting 108 The average will be calculated for each these criteria is not exempt from the different audiotext service offered by the provider. The fact that the services are accessed In the case of a ‘‘loss leader,’’ where call volumes by merely answering a telephone call Rule and its requirements. Section 308.2(g)(3)(ii)—De minimis are inflated with low charges for some consumers (rather than placing a call) may make to bring down the average to allow others to be payments. This proposed section will them even more susceptible to unfair charged higher rates, the Commission will consider allow a vendor of audio information or services that charge different rates (e.g., one high- and deceptive practices than outgoing audio entertainment services to show priced and the other low-priced) to be separate calls from consumers because the that a service is not a pay-per-call services. recipient of the bill has even less ability 109 The provider would only be required to service by demonstrating that the to avoid charges for such services.103 demonstrate that the remuneration it receives fell payment received by the provider does below either the $0.50 per-call de minimis not exceed a specified amount.105 Many threshold or the $0.05 per-minute de minimis 99 47 U.S.C. 228(i)(1)(A)(i) and (ii). of the commenters and workshop threshold. The Commission has selected these two 100 ‘‘Comparable action’’ includes any scenario figures based on its enforcement experience and on where a caller takes action that will result in a participants supported a rebuttable widely available data provided by service bureaus billing statement being generated by virtue of ANI. presumption approach to a definition— for international audiotext services. The appropriate See, e.g., FTC v. International Telemedia whereby a service would be presumed threshold is one below which there is little Associates, Inc., No. 1–98–CV–1935 (N.D. Ga., filed to be ‘‘pay-per-call’’ unless the provider incentive for vendors to solicit calls for the sale of July 10, 1998) and Interactive Audiotext Services, audio information or entertainment. Certain Inc., No. 98–3049 CBM (C.D. Calif., filed April 22, could show certain facts mitigating the arrangements, such as those described by AT&T in 1998). It also includes, but is not limited to, any likelihood of fraud.106 The Commission its comments (‘‘TSAAs’’) may not be subject to action that a consumer might take while on the proposes such an approach. Providers unfair or deceptive practices because the payments Internet or online that may cause his or her could rebut the presumption of ‘‘pay- involved may fall below the threshold. Although computer modem to dial a telephone number that the record does not contain details relating to the results in a charge. See Audiotex Connection. level of remuneration involved in TSAAs, AT&T’s 101 Section 308.7(a)(6) of the original Rule uses contrary, billing for such services would almost statements at the workshop would seem to indicate the term ‘‘telephone-billed purchase’’ to describe certainly violate proposed Section 308.17. that a $0.05 de minimis threshold would exempt transactions to which the billing and collection 104 Among other things, this means that the these agreements. Tr. at 355. As explained in note provisions of the Rule apply. agreement must be entered into with the person to 110, infra, the Commission does not agree with the 102 In fact, the Commission’s Rule explicitly be charged for the service. view of some commenters who urged that prohibits collect callback schemes that result from 105 The Commission intends that the exemptions should be granted for specific calls to toll-free numbers. See, e.g., International demonstration specified by this section need only categories or types of revenue sharing arrangements, Telemedia Associates. be made upon a prior request by the Commission such as an exemption for all TSAAs. See, e.g., 103 Although audiotext services delivered by or its staff, or by any other government agency with AT&T at 8, 25–30. incoming calls to consumers are covered by the the authority to enforce this Rule, or as a defense 110 The Commission wants to ensure that its de proposed definition of pay-per-call services, this to an enforcement action under this Rule. minimis provision exempts only those information does not mean that such services would be 106 Alliance at 5; ISA at 28; AT&T at 8, 25–28; Tr. or entertainment services that are not susceptible to permissible under the proposed Rule. On the at 329, 331, 335. Continued 58536 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Other exemptions. Section (7) Section 308.2(i)—Personal ‘‘prevent unauthorized access by 308.2(g)(3)(iii) exempts calls utilizing identification number. Section 308.2(i) nonsubscribers.’’ telecommunications services for the provides a definition of ‘‘personal Proposed definition of ‘‘personal deaf, and tariffed directory services identification number’’ (‘‘PIN’’), a term identification number.’’ The proposed provided by a common carrier or its used in the definition of presubscription definition will furnish additional affiliate. This exemption tracks agreement. The original Rule’s guidance to providers on what methods analogous language in the statutory definition of presubscription agreement of assigning a PIN satisfy the Rule’s definition of ‘‘pay-per-call services’’ used a similar term, ‘‘identification requirements. The revised Rule specifies found in Title I of TDDRA.111 The number,’’ but did not define that term that the PIN must be ‘‘unique to the proposed Rule adds the word ‘‘tariffed’’ or specify the manner in which it individual.’’ This means that the PIN to clarify the meaning of the exemption, should be issued. must be assigned to the person who will and to prevent unscrupulous vendors Background. Use of a presubscription be billed for the offered goods or from seeking to abuse the exemption. agreement allows a vendor to avoid the services, not to a telephone number or Relationship to FCC regulations. Rule’s requirements by entering into a account. PIN assignments on the basis of Section 308.2(g)(4) states that this contractual agreement with a consumer ANI do not satisfy the original Rule’s section shall not be construed to permit for providing, and receiving payment requirement that a PIN prevent any conduct or practice otherwise for, goods or services in a manner that, ‘‘unauthorized access to the service by precluded or limited by regulations of absent the agreement, would otherwise nonsubscribers,’’ 117 and would the Federal Communications be covered by the Rule. This means that continue to be inadequate under the Commission. For example, if the FCC if a provider has a valid presubscription proposed Rule because they are not were to adopt regulations prohibiting agreement with a consumer, the unique to the individual. The the use of a specific dialing pattern for provider may provide services to that requirement that a PIN be unique to the pay-per-call services, the FTC’s ‘‘pay- consumer in a manner that would individual also means that a provider per-call service’’ definition cannot be otherwise violate the Rule (e.g., the cannot issue the same PIN to more than used as a basis to argue that the FTC has provider may charge a consumer for one person. Moreover, a PIN cannot be permitted such a practice. The audiotext services accessed via a toll- based on a number that is likely to be Commission believes it is important to free number). Where a consumer has known to other persons, such as the make it clear that a service is not entered a presubscription agreement, a telephone number from which the call necessarily legal or permissible for PIN provides a means by which the is placed, a person’s checking account purposes of FCC regulation of pay-per- consumer can control access to the number, credit card number, or social call services simply because it falls service to which he or she has security number. Since the purpose of a within the FTC’s proposed definition of presubscribed. Thus, the original Rule PIN is to limit access to the service to ‘‘pay-per-call.’’ establishes that one of the prerequisites those persons who have entered into a (6) Section 308.2(h)—Person. The of a PIN is that it prevent unauthorized presubscription agreement, allowing a definition has been modified to add access to the service by well-known or published number (such ‘‘unincorporated association’’ and nonsubscribers.114 as a telephone number) would do little ‘‘group’’ to the list of entities that are Nonetheless, some service providers to control access. considered to be a ‘‘person’’ for have utilized PINs that do not prevent The proposed definition also specifies purposes of the proposed Rule. The such unauthorized access. For example, that the PIN must be valid. Three Commission adds these two terms based some service providers have issued PINs conditions must be met in order for a on enforcement experience 112 and the over the telephone upon request, PIN to be valid: (1) it must be requested desire for consistency among its rules without taking sufficient steps to ensure by a consumer; 118 (2) it must be regulating telephone-related that the party who has requested the provided to no person other than the transactions.113 PIN is also the person who will be billed person who will be billed for the 119 for the presubscribed charges.115 Other service; and (3) it must be delivered the unfair or deceptive practices covered by the providers have assigned a consumer’s to the person to be billed for the service Rule. One example of such a service is a local time checking account number as a PIN and simultaneously with a clear and or weather information line that is operated by a then debited that checking account for conspicuous 120 written disclosure of all LEC. Undoubtedly, the LEC derives some minimal the material terms and conditions revenue for calls to these information lines. services purchased by any caller who However, most callers will pay nothing to access presented that PIN number.116 Such associated with the presubscription the line. More importantly, the per-call and per- billing methods do not prevent 117 minute revenues derived by the common carrier for unauthorized access where insufficient 16 CFR 308.2(e)(1)(iv). such a line are likely to be well below the de 118 Thus, unsolicited issuance of PIN numbers minimis thresholds. The Commission believes that steps are taken to ensure that the person will not meet the proposed Rule’s requirements for the de minimis exemption is the best way to exempt paying by this method is actually establishing a valid PIN. such services—a categorical exemption for such authorized to debit that account. 119 A valid PIN will become invalid by later information lines would be open to abuse by Purported presubscription agreements disclosure to the wrong party. Thus, providers must unscrupulous vendors who could use common use caution when giving out PINs to persons who carrier status to derive significant revenue from that entail these methods of assigning claim to have ‘‘lost’’ or ‘‘forgotten’’ a previously- information or entertainment lines. PINs do not satisfy the original Rule’s issued PIN. 111 47 U.S.C. 228(i). The Commission has not criteria for a presubscription agreement 120 The concept of ‘‘clear and conspicuous’’ been given the authority under § 701(b) of the 1996 because such PINs are ineffective to disclosure is well-developed in Commission case Act to extend the definition of pay-per-call services law and policy statements. See, e.g., Thompson to eliminate these exemptions. Medical Co., 104 F.T.C. 648, 797–98 (1984); The 112 FTC v. Audiotex Connection, Inc., No. 97– 114 16 CFR 308.2(e)(1)(iv). Kroger Co., 98 F.T.C. 639, 760 (1981); Statement of 0726 (E.D.N.Y., filed Feb. 13, 1997) (International 115 See, e.g., U.S. v. American TelNet, Inc., No. Enforcement Policy, ‘‘Clear and Conspicuous audiotext scheme where one defendant did 94–2551 CIV–NESBIT (S.D. Fla., filed Nov. 30, Disclosures in Television Advertising,’’ Trade business as ‘‘Electronic Forms Management,’’ an 1994) and FTC v. Interactive Audiotext Services, Regulation Reporter (CCH) ¶ 7569.09 (Oct. 21, unincorporated association). Inc., No. 98–3049 CBM (C.D. Calif., filed Apr. 22, 1970); Statement of Enforcement Policy, 113 The definition of ’’person‘‘ in the 1998). See, also, FLORIDA at 8, A44–A60; NAAG ‘‘Requirements Concerning Clear and Conspicuous Telemarketing Sales Rule includes all of these at 11; NCL at 4. Disclosures in Foreign Language Advertising and entities. 16 CFR 310.2(o). 116 Interactive Audiotext Services. Sales Materials,’’ 16 CFR 14.9. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58537 agreement, including the service that means that the purchase is not pointed out the difficulties in requiring provider’s name and address, a business instantaneous.123 an agreement to be signed and sent telephone number that the consumer Many commenters favored a writing back, and that the failure of someone to may use to obtain additional requirement because of the numerous sign and return an agreement would not information or register a complaint, and complaints from consumers who have necessarily indicate a lack of desire to the rates for the service. Although the been charged for calls to 800 numbers use the service.132 proposed Rule does not require that a in situations where they did not A presubscription agreement must presubscription agreement be signed, authorize such charges or where the meet general principles of contract the Commission believes that it is goods or services had been represented law.133 Nonetheless, the Commission is important for the consumer to be to be free.124 Several commenters were aware of numerous examples of provided with a written copy of the troubled by presubscription agreements purported ‘‘agreements’’ created during terms of the agreement before the that were formed orally during the calls to 800 numbers that do not adhere service is accessed for the first time. course of a telephone call in which the to these basic principles of contract Written disclosures sent along with the consumer is issued an ‘‘instant’’ calling law—e.g., agreements entered into with PIN ensure that the consumer will card or is asked to provide bank account minors, or agreements where the party receive an ‘‘unavoidable’’ disclosure of information.125 As a result, they urged to be billed for the service is not the the material terms and conditions before the Commission to ban oral party who placed the call and the service can be accessed and before transmission of presubscription supposedly entered into the any charges can accrue. agreements and to require that agreement.134 Often, these purported The Commission does not believe it is presubscription agreements be in ‘‘agreements’’ involve the use of ANI to 126 necessary to specify the method by writing. Many of the same identify a billing name and address and which the PIN should be delivered; commenters believed that a written to send a bill, a practice that frequently service providers may use whatever agreement was particularly important in results in one consumer receiving a bill 135 method of delivery is most appropriate. situations where charges would be for a service ordered by another. 127 Proposed definition of Regardless of the method chosen, recurring. NCL noted that many of ‘‘presubscription agreement.’’ Because however, the service provider will be the complaints received by its National the presubscription exception to Rule responsible for ensuring that the PIN is Fraud Information Center (‘‘NFIC’’) were coverage circumvents the TDDRA not distributed to anyone other than the from consumers who thought that protections, the Commission believes person who will be billed for services certain 800-number calls were free but found out that they had been charged the exception should be carefully under the presubscription agreement. for the calls and/or inadvertently signed delineated and not be a source of (8) Section 308.2(j)—Presubscription up for services, such as club abusive and deceptive practices. The agreement—Background. The purpose memberships or voice mail, to which proposed Rule modifies original Section of the presubscription agreement is to they had not expressly agreed.128 Two 308.2(e)(1) to make it clear that the allow the seller and consumer to common carriers agreed that a disclosures must be provided to, and the mutually agree to remove themselves presubscription agreement must be in agreement must be reached with, the from the TDDRA regulatory framework. writing.129 consumer who will be billed for the The definition of this term generated The industry representatives as a service. In addition, the proposed Rule substantial discussion both in the whole generally opposed a requirement written comments and during the that the agreement be signed, based on 132 Tr. at 487–88. workshop. One significant issue was the argument that the signature of an 133 Complying with the 900-Number Rule: A whether such agreements should be in individual neither demonstrates legal Business Guide Produced by the Federal Trade writing and signed by the consumer. Commission (Nov. 1993) at 3. competence nor that the proper person 134 See, e.g., FTC v. Interactive Audiotext The audiotext industry generally is being billed for the service.130 One Services, Inc., No. 98–3049 CBM (C.D. Calif., filed opposed a writing requirement because industry member argued that requiring Apr. 22, 1998) and FTC v. International Telemedia it would inhibit the ‘‘instantaneous’’ an executed agreement might prevent Associates, Inc., No. 1–98–CV–1935 (N.D. Ga., filed nature of audiotext services offered contemporaneous purchase of July 10, 1998). Indeed, the Commission’s first action 121 to enforce the 900-Number Rule challenged invalid through 800 numbers. Other parties merchandise.131 Industry members also presubscription agreements. U.S. v. American countered industry’s arguments by TelNet, Inc., No. 94–2551 CIV-NESBIT (S.D. Fla., asserting that the proper vehicle for 123 SW at 5. filed Nov. 30, 1994). offering instantaneous information or 124 FLORIDA at 8; NCL at 4–5; NAAG at 11; Tr. 135 The Commission’s view that ANI is entertainment has been, and continues at 169, 193–94, 472–74. insufficient to identify the party to a 125 NCL at 5; FLORIDA at 8; NAAG at 11. presubscription agreement is shared by FCC staff, to be, through the 900-number dialing as evidenced by a 1994 letter from FCC staff, 126 NCL at 5; FLORIDA at 8; NAAG at 11; SW at 122 relating to the issue of billing for audiotext services pattern. These commenters believe 2, 5–6; Tr. at 18. NAAG suggested that electronic offered through 800 numbers. The FCC letter stated that any vendor wishing to sell such transmission of the agreement would also be sufficient to inform the consumer of the costs and that a legitimate presubscription agreement is not goods or services through 800 numbers created if the vendor immediately issues a personal must take particular care to ensure that terms and conditions of the service. (NAAG at 11). SW suggested that if electronic transmission is identification number without determining that the the consumer understands the material allowed, there should be a 10-day lag before the caller is both the subscriber to the line and legally terms under which the service is vendor could bill for the service, during which time capable of entering into a contractual agreement. ‘‘The basic terms of the presubscription definition offered, including that the consumer the vendor should send a written confirmation of the agreement. (SW at 2, 5–6). preclude reliance on ANI either to create or provide will be charged for the goods or evidence of a valid presubscription or comparable 127 NCL at 5; FLORIDA at 8; NAAG at 11; TSIA arrangement, because ANI identifies only the services, and how much he or she will at 16–17. originating line and not the caller who seeks to pay. One commenter specifically 128 NCL at 4. (In 1996, the NFIC received 85 establish an arrangement. Thus billing systems recommended that the Rule require complaints against one Texas-based company based solely or primarily on ANI do not ensure that these disclosures to be provided before regarding unauthorized charges for voice mail presubscribed information services charges are the consumer incurs charges, even if service after consumers had called an 800-number being properly assessed.’’ Letter dated June 15, for a ‘‘free’’ psychic reading.) 1994, to Randal R. Collett, Association of College 129 AT&T at 10; SW at 2, 5–6; Tr. at 488. and University Telecommunications 121 PILGRIM at 19, 21–22; Tr. at 487–90. 130 PILGRIM at 19, 21–22; Tr. at 487–90. Administrators, from Gregory A. Weiss, Acting 122 Tr. at 79, 493, 495. 131 PILGRIM at 19, 21–22; Tr. at 487–90. Director, Enforcement Division, FCC. 58538 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules will require that presubscription transactions that were subject to the and FCBA, including the right to agreements be delivered, in writing, to dispute resolution requirements of the dispute unauthorized charges. In the the person who will be billed for the Truth in Lending Act (‘‘TILA’’) and Fair absence of the protections afforded by service.136 As explained above, Section Credit Billing Act (‘‘FCBA’’).137 these Acts, however, it is essential that 308.2(i) of the proposed Rule requires In the current proceeding, some the consumer who will be billed for a that the provider of presubscription industry members urged the service agree, in advance, to pay for the services deliver (to the person who will Commission to expand the types of service after receiving clear and be billed for the service) a PIN, together billing methods that would be permitted conspicuous disclosure of all the with a written disclosure of all the to constitute a presubscription material terms of the agreement. Title III material terms and conditions of the agreement. of TDDRA directed the Commission to agreement. In every instance, an actual Specifically, one industry association promulgate rules with requirements contractual agreement with the person advanced the argument that both pre- ‘‘substantially similar to the to be billed for the service must be authorized drafts 138 and a direct billing requirements imposed, with respect to reached in advance of the provision of option would provide consumers with the resolution of credit disputes, under service and the person to be billed for all of the material disclosures required the Truth in Lending and Fair Credit the service must have received clear and by the Rule while giving vendors more Billing Acts.’’ 143 To allow a calling conspicuous disclosure of the material flexibility in the methods by which they card, a debit card, or other means not terms of the contract. could bill consumers.139 Other within the ambit of both TILA and The Commission has decided not to commenters expressed concern with FCBA to substitute for an actual propose a requirement, advanced by respect to direct billing, noting that agreement with the person to be billed some commenters, that the written there was no substantive difference for the service would undermine the agreement be signed by the consumer. between 800-number billing through a entire purpose of the presubscription Instead, the proposal would make it LEC and 800-number billing through agreement exception to the Rule. It clear that the provider who engages in direct billing by a third party. In other would also undermine the a transaction pursuant to a words, they believed that to allow these Commission’s mandate to promulgate presubscription agreement has the billing options under Section 308.2(e)(2) TDDRA rules substantially similar to burden to show that it obtained the of the original Rule would effectively TILA and FCBA. actual authorization of the person who allow a person to be charged for a call Allowing such types of payment was billed for the service. The to a toll-free number—a practice methods to substitute for an actual presubscription agreement is never prohibited by TDDRA.140 These agreement with the person to be billed valid (i.e., it does not meet the commenters expressed the belief that, if for a service would also encourage the conditions of the current Rule or the a vendor is charging for audiotext use of so-called ‘‘instant’’ calling cards. proposed Rule) unless the agreement is services offered through an 800 number, Such cards are often issued without any reached with the person who will be there should be an actual agreement, assurance that the caller obtaining the billed for the service. regardless of the billing method.141 card is authorized to arrange for a In addition to the changes to the Furthermore, some commenters pointed purchase to be billed to the telephone presubscription provisions discussed out that they have received complaints number from which the call is being above, the proposed Rule makes two from consumers who were billed placed. Under the proposed Rule, cards other minor modifications to the directly for services after they called an not subject to TILA and FCBA do not original Rule’s treatment of 800-number, but who had not constitute presubscription agreements presubscription agreements. First, to understood that there would be a unless they meet the requirements of simplify the language of the proposed charge.142 Section 308.2(j)(1). Rule, the phrase ‘‘presubscription The Commission has carefully For the reasons discussed above, agreement’’ has been substituted for the considered all of the comments and Section 308.2(j)(2) of the proposed Rule phrase ‘‘presubscription or comparable discussion regarding presubscription retains the language of the original Rule, arrangement.’’ agreements, and has decided to retain in with only three revisions that are Second, the proposed Rule adds the proposed Rule the ‘‘credit and dictated by the Commission’s decision language in Section 308.2(j)(1) to clarify charge card’’ presubscription option in to expand coverage of the Rule beyond that a presubscription agreement is an its current form, with only minor the ‘‘pay-per-call services’’ offered agreement to purchase goods or technical changes. The Commission also through the 900-number platform. First, services, including audio information or has determined not to include within the proposed Rule changes the language audio entertainment services. relating to the disclosure of a credit card this option other types of cards, such as Section 308.2(j)(2)—Billing by credit number ‘‘during the course of a call to debit, prepaid, or calling cards, which card. In promulgating the original Rule, a pay-per-call service,’’ to read ‘‘during the Commission stated that it did not are not subject to both TILA and FCBA. Presubscription agreements based on the course of a call to purchase goods appear that Congress intended to a credit or a charge card are permitted or services, including audio information include credit card or charge card because these transactions are already or audio entertainment services.’’ This transactions within the regulatory subject to the legal protections of TILA change is designed to clarify that framework of TDDRA. Therefore, in services billed to a credit card are Section 308.2(e)(2) of the original Rule, 137 58 FR at 42367. purchases made pursuant to a the Commission included within the 138 By use of a pre-authorized draft (also known presubscription agreement and thus are definition of ‘‘presubscription as a ‘‘demand draft’’ or a ‘‘phone check’’) a seller excluded from the definition of ‘‘pay- agreement’’ those credit and charge card can obtain funds from a buyer’s checking account per-call services.’’ without that person’s signature on a negotiable Second, the proposed Rule deletes the instrument. 136 While this should prohibit the instantaneous last sentence of 308.2(e)(2) of the 139 TSIA at 15–16; Tr. at 473–82. sale of audiotext over toll-free numbers, the original Rule. This sentence made clear Commission believes that 900 numbers, not toll-free 140 15 U.S.C. 5711(a)(2)(F). See also, Tr. at 480– numbers, should be the proper vehicle for offering 87. that providers are prohibited from ‘‘impulse’’ purchases of audiotext services. See 15 141 Tr. at 483, 486–87. U.S.C. 5711(a)(2)(F). 142 Tr. 483–84. 143 15 U.S.C. 5721(a)(2). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58539 charging consumers for calls to what the FCC rules require common Other commenters favored such a presubscribed services unless the carriers to include in any tariff or modification because it would reinforce consumer either had entered an contract relating to the use of toll-free the FCC’s requirement that agreement before that telephone call, or telephone numbers for audiotext presubscription agreements be in was paying for the service with a credit purposes. The proposed revision of the writing.150 Finally, some commenters or charge card. This sentence is no FTC’s Rule would not conflict with any argue that amending the FTC Rule to longer necessary because the proposed FCC requirements for what common track the FCC’s regulations would serve Rule in Section 308.2(j)(1) prohibits carriers must include in their tariffs or the goal of regulatory consistency; providers from charging consumers contracts, and the two sets of industry would only need to look to one until the consumer has received, in regulations would continue to differ set of rules.151 writing, a PIN and a clear and with respect to their approach to Regulatory consistency is an conspicuous disclosure of all the audiotext services provided over toll- important goal. This is one of the material terms of the agreement. free numbers. primary reasons why, in promulgating Finally, the proposed Rule clarifies Prior to the 1996 Act, the FCC’s the original Rule, the FTC chose, at its that, in order for the Section 308.2(j)(2) regulations pertaining to toll-free own discretion, to adopt a provision credit card alternative to a 308.2(j)(1) numbers were virtually identical to the that paralleled the analogous FCC presubscription agreement to be requirements imposed in Section provisions regulating the use of 800 available, the credit card must be ‘‘the 308.5(i) of the FTC’s original Rule: the numbers 152 and defining sole method used to pay for the charge.’’ use of a toll-free number to charge for ‘‘presubscription or comparable The Commission is aware that some information conveyed during a call was arrangement.’’ 153 However, were the providers request a credit card number prohibited, unless the charges were the FTC to adopt a definition of from a consumer, but bill the consumer result of a presubscription or ‘‘presubscription agreement’’ that by some other method—a method that is comparable arrangement, which tracked the FCC’s new definition, or if not subject to the dispute resolution included (by definition) a charge to any it were to similarly modify the Rule’s protections of TILA and FCBA.144 As credit card that was covered by TILA provisions governing toll-free numbers, the text of the original Rule and its and FCBA. With the 1996 amendments, it would not be possible to achieve the Statement of Basis and Purpose make however, the FCC’s regulations now explicit purposes of Titles II and III of clear, this practice violates the Rule.145 differ from the FTC’s Rule by requiring TDDRA as amended by the 1996 Act.154 The Commission proposes adding this common carriers to prohibit the use of There is no inherent conflict between clause to remove any possible ground toll-free numbers to charge for the FCC’s new regulations and the FTC’s for argument, unpersuasive though it information or entertainment unless the original or proposed Rule. The FCC’s may be, that the Rule could be consumer has entered into a written Title I regulations apply only to construed to allow a provider to make agreement. At the same time, the FCC’s common carriers in their role of use of the presubscription option new rules are more lenient than the providing basic dial tone and transport through the meaningless eliciting of a FTC’s Rule in that, under the FCC’s new service to service providers that use toll- credit card number without using the rules, common carriers can permit free numbers, while the FTC’s card to bill charges. vendors and service bureaus using the regulations under Title II of TDDRA carrier’s networks to charge consumers directly apply to vendors and service Relationship to FCC Regulations. for calls made to an 800 number in the bureaus who would be using toll-free Since passage of the 1996 Act, the FCC’s absence of a presubscription agreement, numbers to charge a consumer for audio regulations enacted under Title I of if the call is charged to, inter alia, a information or entertainment. TDDRA have differed in some respects debit card, calling card, or prepaid Furthermore, there is nothing in the from the FTC’s Rule enacted under account. Section 701(a) of the 1996 Act FTC’s proposed Rule to prevent a Titles II and III of TDDRA. This is is silent as to TILA and FCBA coverage vendor from offering to accept payment because the 1996 Act amended Title I of of transactions by these means. by means of a card not subject to TILA TDDRA to require the FCC to amend its A number of commenters suggested or FCBA, as long as the vendor reaches rules governing the obligations of that the Commission amend its original common carriers with respect to the use Rule 147 to track the amended FCC 150 NAAG at 11; AT&T at 10. SW specifically of toll-free numbers for audiotext regulations.148 Commenters advanced opposed tracking the new FCC regulations with services.146 These amendments affected several arguments in support of such a regard to its allowance of an ‘‘electronic’’ signature. Such a form of written agreement, the commenter modification. Several commenters 144 In one case recently filed by the Commission, argued, would not provide a method of verifying a provider was allegedly collecting credit card supported tracking the FCC’s amended that the execution was by a competent adult who numbers from consumers purportedly to create a rules so that the Commission’s Rule is the person responsible for paying the telephone valid presubscription service, but instead allegedly would allow providers other methods to bill. SW at 5. 151 billed the consumers directly, based on ANI. FTC bill for toll-free audiotext services AT&T at 5–6; ISA at 31–33; PMAA at 4, 15; v. Interactive Audiotext Services, Inc., No. 98–3049 SW at 3, 10; TSIA at 19. CBM (C.D. Calif., filed Apr. 22, 1998). besides obtaining an explicit 152 58 FR at 42387. 145 58 FR at 42367. See Tr. at 472 (NAAG: ‘‘I think ‘‘presubscription’’ agreement or 153 Id. at 42367. the proper way to construe the law is to say if charging the service to a credit card 154 In fact, the 1996 Act’s amendments to TDDRA you’re going to acquire pay-per-call services using which is subject to TILA and FCBA.149 virtually mandate divergence between the FTC and a credit card, the charge ought to appear on the FCC regulations. Under Title I of TDDRA, the FCC’s credit card.’’). regulations continue to operate under the statutory 146 On July 11, 1996, the FCC published an Order comment on additional proposed changes to the definition of ‘‘pay-per-call services’’ set forth in 47 and Notice of Proposed Rulemaking to amend its FCC’s rules not specifically mandated by the Act. U.S.C. 228(i). However, under Title II of TDDRA, as Rules in accordance with the amendments to Title 147 Specifically, these commenters supported amended by the 1996 Act, the Commission may I of TDDRA. ‘‘FCC Pay-Per-Call Order and Notice,’’ amending Sections 308.2(e) and 308.5(i) of the adopt an alternative definition of ‘‘pay-per-call CC Docket Nos. 96–146 and 93–22, and FCC 96– original Rule—the provisions dealing with services.’’ Thus, after the 1996 Act, the FCC and 289, 11 FCC Rcd 14738 (1996). The Order portion presubscription agreements and the use of toll-free FTC Rules are now focused on two different of this document amended 47 CFR Part 64 (the numbers for audiotext purposes. categories of ‘‘pay-per-call services.’’ In the current FCC’s pay-per-call rules) in accordance with the 148 AT&T at 5; ISA at 31–33; NAAG at 11; PMAA legal framework, an attempt to produce parallel mandate of the 1996 Act; the Notice of Proposed at 4, 15; SW at 3, 10; TSIA at 19. Rules under Titles I, II, and III of TDDRA would be Rulemaking portion of the document requested 149 ISA at 32–33; PMAA at 15. futile. 58540 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules a presubscription agreement with the marketplace since the promulgation of processing, billing aggregation, call person to be billed for the service and the original Rule is that service bureaus statistics (call and minute counts), call complies with the requirements of now play an important role for many revenue arrangements (including proposed Section 308.2(j)(1).155 Thus, it vendors in providing access to billing revenue-sharing arrangements with is entirely possible to use any of the and collection systems. Some service common carriers), or pre-packaged pay- billing mechanisms permitted under bureaus act as ‘‘billing aggregators’’— per-call investment opportunities (i.e, Title I of TDDRA, as amended, as long i.e., they act as intermediaries between ‘‘turn-key programs’’). Any person as the provider complies with the vendors and LECs in order to get their providing one or more of these services additional precautions of proposed Rule client-vendors’ charges to appear on to vendors will be covered by the Section 308.2(j)(1), which are designed telephone bills. Other service bureaus proposed definition of service bureau. to ensure that the party being billed for bypass the LEC billing system Billing aggregators are explicitly the toll-free audiotext service is the completely and provide their clients included in the proposed definition of same person who agreed to be billed for with direct billing services. Still other service bureau. As the Commission’s that service. service bureaus have played an essential It is the mandate of the FTC, acting role in the growth of international enforcement experience has under Title II and III of TDDRA, to audiotext by entering into revenue- demonstrated, billing aggregators play a prohibit the use of unfair or deceptive sharing agreements with foreign key role in providing to vendors— practices in the provision of audiotext telephone companies, and then including unscrupulous ones—access to services.156 Title I of TDDRA gives the providing vendors of audiotext services a telephone billing and collection FCC no similar mandate. The FTC must with international numbers through system that permits vendors to cost- consider the extent to which any which their audiotext services can be effectively bill and collect for their proposed new exemption from the Rule accessed.159 services. In many, if not most cases, (such as the exemption embodied in the Proposed definition of ‘‘service they are the entity responsible for revised FCC rules) would be likely to bureau.’’ The Commission proposes submitting the charges to the LECs for increase the types of unfair and several changes to the definition of placement on consumers’ telephone deceptive practices that prompted ‘‘service bureau’’ reflecting the fact that bills. Thus, the Rule’s purposes would enactment of the TDDRA. There is the role of the service bureau has be thwarted unless billing aggregators evidence on the record suggesting that expanded since the original Rule was were brought explicitly within the ambit audiotext services purchased using promulgated. The proposed definition of the Rule. Similarly, service bureaus these billing methods—methods that of ‘‘service bureau’’ is also more specific that facilitate revenue-sharing would be permitted if the FTC Rule than the definition of that term in arrangements between vendors and tracked the revised FCC rules—are Section 308.2(i) of the original Rule. The foreign telephone companies in susceptible to the same types of unfair original definition of ‘‘service bureau’’ connection with international audiotext or deceptive practices that are was open-ended—i.e, it was defined as are included in the proposed definition. prohibited by the original Rule. To a person ‘‘who provides, among other This service bureau activity is essential fulfill the mandate of Section 701(b) of things, access to telephone service and to vendors seeking to sell audiotext in the 1996 Act, it is necessary for the voice storage, to pay-per-call a manner that circumvents the 160 FTC’s Rule to cover these purchases.157 providers.’’ By contrast, the proposed consumer protections guaranteed by Amending the FTC Rule to parallel definition will define a service bureau Title III of TDDRA. as a person who provides one or more the revised FCC rules would also In the original Rule, the definition of undermine the FTC’s mandate under of a finite list of services to vendors. This format will provide better guidance ‘‘service bureau’’ contained an Title III of TDDRA to promulgate rules 161 to industry and law enforcement in exemption for all common carriers. In that impose requirements that are its Request for Comment, the ‘‘substantially similar to the determining which entities are service bureaus and will clarify that billing Commission asked whether it was still requirements imposed, with respect to appropriate for the definition to exclude the resolution of credit disputes, under aggregators and entities providing access to international audiotext all common carriers, regardless of the the Truth in Lending and Fair Credit 162 158 payment systems are covered by the activities they perform. Several Billing Acts.’’ The FCC’s regulations commenters urged the Commission to are not subject to a similar mandate. The definition. The proposed definition of service reexamine this common carrier Commission believes that it is bureau is intended to incorporate all of exemption, arguing that the service consistent with the regulatory the essential services that a vendor being provided, and not the type of framework of TDDRA that FCC and FTC might need in setting up a business entity that provides the service, should regulations differ with respect to the selling products or services through determine whether an entity is subject requirement that billing alternatives to telephone-billed purchases. Section to the Rule.163 One commenter argued presubscription agreements be subject to 308.2(n)(1) of the proposed Rule that the common carrier exemption TILA and FCBA. (9) Section 308.2(n)—Service identifies the following services: voice enabled service bureaus to claim bureau—Background. One of the more storage, voice processing, call ‘‘common carrier’’ status to evade significant changes in the audiotext regulation, thereby gaining a 159 Some of these new types of service bureaus competitive advantage.164 The have played key roles in the new deceptive and Commission is persuaded by these 155 In fact, many of the billing options permitted unfair practices that have injured consumers. For by the FCC’s rule (e.g., a calling card) might easily example, one service bureau providing arguments. Therefore, under the fall within the Commission’s proposed definition of international audiotext programs to willing vendors proposed Rule, any person, including a PIN. proudly boasts ‘‘no chargebacks’’ in its common carrier, who provides the 156 15 U.S.C. 5711(a)(1), 5711(a)(4), and advertisements—underscoring both the potential 5721(a)(1). harm to consumers caused by international 161 16 CFR 308.2(i). 157 See, e.g., NCL at 3–5; FLORIDA at 8, audiotext, as well as the essential role service 162 Attachments A44–A60; NAAG at 11; SW at 2, 5– bureaus play in making international audiotext 62 F.R. 11753 (Mar. 12, 1997). 6; Tr. at 194, 471–84, 498–500. possible. 163 NCL at 4; NAAG at 10; TSIA at 19–20. 158 15 U.S.C. 5721(a)(2). 160 16 CFR 308.2(i). [Emphasis added.] 164 TSIA at 19–20. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58541 services listed in 308.2(n)(1) to vendors a consumer or an account identified by dispute charges for products and would be considered a service bureau. reference to ANI is included in the services billed to a telephone number. Nevertheless, the Commission current definition, and any person Title III of TDDRA was specifically recognizes that there is one key service billed for such a purchase would be designed to address this problem; bureau function—providing access to entitled to dispute the charges pursuant Congress instructed the Commission to telephone service to vendors of pay-per- to the Commission’s Rule.168 prescribe rules establishing a dispute call services—that cannot be fairly Background. At the time the original resolution procedure for telephone- applied to common carriers. This Rule was promulgated, 900-number billed purchases that are ‘‘substantially service, which was identified in the services were the primary, if not the similar’’ to the dispute resolution original definition of service bureau, is only, familiar example of telephone- protections afforded credit card users essential to any pay-per-call service. billed purchases. Today, the growing under TILA and FCBA.173 Indeed, it is a key function of those use of ANI as a basis for billing Proposed definition of ‘‘telephone- service bureaus who obtain consumers has increased the range of billed purchase.’’ The original Rule international telephone numbers for available telephone-billed purchases. definition of ‘‘telephone-billed vendors who wish to provide Consumers can purchase voice mail, purchase’’ covered all (non-toll) charges international audiotext services. Internet access, telephone equipment, resulting from ANI capture. This However, a common carrier that merely roadside assistance club memberships, includes many, but not all, instances of provides a vendor of pay-per-call and other goods and services and have cramming.174 It does not cover instances services with access to basic telephone the charges billed to their telephone bill. of cramming, for example, where a service (the essential function of a Concurrent with this development, phone call is never made in connection common carrier) should not be there has been a sharp increase in with a charge, yet the charge is billed to considered a service bureau subject to complaints about telephone-billed the consumer’s telephone bill.175 the Commission’s Rule promulgated charges for such goods and services.169 Proposed Section 308.2(q) expands the under Title II and III of TDDRA. Acting Consumer organizations, as well as definition of telephone-billed purchase as traditional common carriers, these federal and State regulatory and law to include all purchases that are entities are already subject to the enforcement agencies, have received a ‘‘charged to a customer’s telephone regulations of the FCC promulgated large number of complaints from bill,’’ even if the purchase did not under Title I of TDDRA. Therefore, the consumers who have found unclear or involve a telephone call. Commission proposes a limited unexplained monthly recurring charges Title III of TDDRA was intended to exemption from the definition of service on their telephone bills for services that provide telephone-billed purchases the bureau for common carriers that provide were never authorized, ordered, same types of protections afforded to vendors of pay-per-call services with received, or used.170 These credit card purchases under TILA and nothing more than access to telephone unauthorized charges (i.e., ‘‘cramming’’ FCBA. The telephone number, in service. Under proposed Section charges), are often purportedly for club telephone-billed purchases, is analogous 308.2(n)(2), any person, other than a memberships, or subscriptions for to the credit card number. To carry the common carrier, who provides access to psychic, personal, travel, or 900-number analogy further, instances of ‘‘non-ANI telephone service to vendors of pay-per- services. In other instances, the charges cramming,’’ such as a charge resulting call services,165 would be considered a involve services such as personal 800 from entry of a consumer’s telephone service bureau. numbers, voice mail, paging, and calling number on a sweepstakes entry form, (10) Section 308.2(q)—Telephone- cards. are much like instances where a billed purchase. The term ‘‘telephone- The common thread in all of these consumer’s credit card number is used billed purchase’’ defines those products types of cramming charges is that a in a transaction where the physical card and services that are covered by the consumer is identified, and a billing is not itself presented. In the credit card dispute resolution provisions of the statement is transmitted, based on a environment (under TILA and FCBA), Rule promulgated under Title III of telephone number. In other words, in all the fact that a transaction takes place TDDRA. The term is much broader in of these instances, a telephone number without the presence of the actual card scope than the term ‘‘pay-per-call was used in the same manner that a would not affect the cardholder’s right services,’’ the category of services credit card account number might have covered by Title II of TDDRA. The been used in the past.171 While 173 15 U.S.C. 5721(a)(2). original Rule’s definition of ‘‘telephone- consumers have for a long time had 174 As discussed elsewhere in this Notice, the billed purchase’’ comes from Title III of numerous rights to dispute Commission proposes several modifications to the Rule to provide greater protection to consumers 166 TDDRA, and it currently includes unauthorized or other incorrect charges who have been ‘‘crammed’’ (for example, proposed ‘‘any purchase that is completed solely to their credit card numbers,172 until §§ 308.2(b)(9)–(11)) and to prohibit vendors, service as a consequence of the completion of 1992 they had no comparable rights to bureaus, and billing entities from engaging in the call or subsequent dialing, touch cramming (proposed § 308.17). 175 In at least one case where unexplained or 168 tone entry, or comparable action of the Services provided pursuant to a unauthorized charges did not result from a caller.’’167 The term specifically presubscription agreement are excluded from the telephone call, a deceptive prize promotion excludes all local exchange or definition. 15 U.S.C. 5724(1)(A), 16 CFR allegedly was used to market a voice mail service. 308.7(a)(6)(i). Allegedly, consumers were enticed to fill out a interexchange telephone services, as 169 SW at 7–8; NCL at 4; Tr. at 382–84, 498–504. sweepstakes form for a chance to win a new vehicle well as other services excluded by FCC For example, NCL reported that most of the or a sum of cash. The form failed to adequately regulation. Thus, any purchase of a complaints received by the NFIC that relate to 800 disclose that the vendor interpreted the submission numbers involve calls that the consumer thought of a completed entry form as authorization to bill product or service (other than telephone were free, but by making them, the consumer had toll service) that results in a charge to charges for a ‘‘membership’’ to the telephone unknowingly signed up for services which resulted number listed on the form. In many instances, in charges (such as voice mail or club consumers allegedly were unaware that they had 165 It is important to note that proposed memberships). signed up for this ‘‘membership’’; in other § 308.2(n)(1), unlike § 308.2(n)(2), applies to all 170 Tr. at 498–500. instances, consumers allegedly found they were vendors, and is not limited to vendors of pay-per- 171 FCC Public Forum on Local Exchange Carrier being billed for services because someone else had call services. Billing for Other Businesses (June 24, 1997). filled out the form and put down their telephone 166 15 U.S.C. 5724(1). Transcript, pp. 232–237. number. FTC v. Hold Billing Services, Ltd., No. 167 Section 308.7(a)(6) of the original Rule. 172 15 U.S.C. 1666. SA98CA0629 FB (W.D. Texas, filed July 19, 1998). 58542 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules to dispute an unauthorized charge. By provisions of the Rule, regardless of the each different portion of the call. This contrast, in non-ANI cramming, a dialing pattern used to access the same requirement applies to the free consumer loses his or her right to service. Proposed Section 308.2(q) also preamble message under proposed dispute the charge simply because the clarifies the definition by using the term Section 308.9(a)(2)(iii)(B). These telephone was not actually used in the ‘‘presubscription agreement’’ in place of provisions will ensure that consumers transaction. In this respect, the the term ‘‘preexisting agreement,’’ and receive accurate disclosure of the full Commission’s Rule is no longer by specifying that the exemption for cost of the call before a call is placed or ‘‘substantially similar’’ to the rights presubscription agreements applies only before charges are incurred. afforded by TILA and FCBA. to those purchases where the (13) Section 308.2(t)—Vendor. The Congress has given the Commission presubscription agreement satisfies all original Rule uses both the term significant flexibility in prescribing of the requirements of the proposed ‘‘vendor’’ and the term ‘‘provider of pay- regulations that are ‘‘necessary or Rule. per-call services.’’ Under the original appropriate’’ to implement the (11) Section 308.2(r)—Variable option Rule, a ‘‘provider of pay-per-call provisions of Title III.176 The rate basis. The original Rule used the services’’ was a specific type of Commission has broad authority to term ‘‘variable rate basis’’ to describe vendor—a vendor who happened to sell prohibit unfair or deceptive practices situations where the rate charged for a pay-per-call services. The proposed that ‘‘evade’’ its dispute resolution rules pay-per-call service varied depending Rule discontinues the use of the term or otherwise ‘‘undermine the rights’’ on the options chosen by the caller. For ‘‘provider of pay-per-call services’’ Congress gave to consumers under Title example, in the course of a pay-per-call because the Commission does not III of TDDRA.177 Non-ANI cramming is program, a consumer might be asked to believe there is any value to maintaining such a practice. press a specific number on a touch tone a separate term for those vendors who The Commission believes that keypad that would access a different sell pay-per-call services. The proposed consumers should have equal rights to program charged at a higher rate. The Rule therefore uses the term ‘‘vendor’’ to dispute unauthorized non-toll charges term ‘‘variable rate basis,’’ however, is refer to both providers of pay-per-call on their telephone bills regardless of no longer specific enough to describe services as well as sellers of other whether or not a telephone was used to the current situation. This is true telephone-billed goods or services. because, as discussed infra, there are generate the charges. Even if consumers Subpart C—Pay-Per-Call Services carefully monitor the use of the now pay-per-call services where the telephone, they cannot keep their charge to the consumer may vary Section 308.3 General Requirements telephone number secure and private as depending on factors other than the for Advertising Disclosures they would their credit card number. options specifically chosen by the Section 308.3 of the original Rule Indeed, consumers may not be aware of consumer—e.g., services where the rates contained the provisions relating to the need to keep their telephone vary depending on the passage of disclosures of cost and other material numbers secure. The ability to use a time.178 To clarify the specific situations information in the advertising of pay- telephone number alone to bill a that the original phrase ‘‘variable rate per-call services. As discussed earlier, consumer, in the absence of an actual basis’’ was intended to cover (i.e., those the proposed Rule has broken the telephone call, represents a tremendous that are dependent on the options former single Section 308.3 opportunity for fraud. selected by the caller), the Commission (‘‘Advertising of pay-per-call services’’) The Commission believes that in proposes substituting the phrase into several shorter sections, each order to provide consumers with rights ‘‘variable option rate basis.’’ Proposed dealing with a discrete subject. that are substantially similar to the Section 308.2(r) defines this term to Section 308.3 of the proposed Rule, dispute resolution rights of TILA and refer to the rate structure of pay-per-call entitled ‘‘General Requirements for FCBA, and in order to prevent unfair or services where the rate billed to the Advertising Disclosures,’’ retains the deceptive practices that evade these consumer depends on the specific language from Section 308.3(a) of the rights, it is both necessary and options chosen by the caller during the original Rule. This section sets forth the appropriate to propose an amendment call. ‘‘minimum standards’’ applicable to to the definition of ‘‘telephone-billed (12) Section 308.2(s)—Variable time disclosures required in advertisements purchase’’ to include instances of rate basis. As noted above, new forms of under the Rule.180 The only proposed cramming that do not arise from a variable rates have become available modification to this section is the telephone call from the consumer’s since the original Rule was addition of a new requirement relating telephone. promulgated. For example, it is now to any advertising medium not Clarification. Proposed Section possible to bill the first minute at one specifically addressed in the Rule. 308.2(q) also clarifies the definition of rate while subsequent minutes are billed Internet and online advertisements. In ‘‘telephone-billed purchase’’ by adding at a higher or lower rate.179 Proposed its Request for Comment, the the phrase‘‘pay-per-call purchase.’’ Section 308.2(s) provides a term, Commission sought information and While the Commission believes that the ‘‘variable time rate basis,’’ to describe views on whether the advertising current language of the Rule clearly instances where charges vary according regulations of the original Rule should encompasses pay-per-call services, this to the amount of time the caller is on the set forth specific requirements for revision will prevent any telephone or according to other factors advertising that appears on the Internet misinterpretation of the Rule’s coverage. not determined by the options chosen or online. In general, the commenters, This clarification will ensure that by the caller. Section 308.4(a)(1)(iii)(B) both in writing and in the discussion at persons billed for pay-per-call services of the proposed Rule requires that, in the workshop, expressed the view that will have the full panoply of protections advertisements for pay-per-call services the regulation of Internet and online provided by the dispute resolution billed on a variable time rate basis, the advertising is an issue best suited for advertisement shall state the cost of another rulemaking proceeding in 176 15 U.S.C. 5723. which comment can be solicited from a 177 15 U.S.C. 5721(a)(1). See also 15 U.S.C. 178 See, e.g., ISA at 22; PMAA at 10–12; TSIA at 5711(a)(2)(J) and (a)(4) (providing similar authority 17–18. 180 See, discussion in the Statement of Basis and under Title II). 179 Id. Purpose of the original Rule, 58 FR at 42369. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58543 much broader array of online in the Commission’s Request for Commission intends for these situations advertisers.181 Several participants at Comment regarding the applicability of to be encompassed by the term ‘‘variable the workshop cautioned that this its rules and guides to electronic media, time rate basis’’ (emphasis added). proceeding may not be an appropriate referred to above.185 Section 308.6 Misrepresentation of forum for setting such advertising Section 308.4 Advertising Disclosures Cost Prohibited standards,182 but nevertheless were troubled by the prospect of the Internet Proposed Section 308.4 incorporates Proposed Section 308.6(a) is a new becoming the next haven for deceptive the provisions set out the following provision that specifies that a deceptive pay-per-call advertising. These sections of the original Rule: 308.3(b) practice for a vendor to misrepresent the participants suggested that some type of (Cost of the call); 308.3(c) (Sweepstakes; cost of a pay-per-call service. In many general standard for advertising might games of chance); 308.3(d) (Federal respects, this deceptive practice is be necessary in order to ensure that this programs); and 308.3(f) (Advertising to already prohibited by the original Rule: scenario did not occur.183 individuals under the age of 18). Each the original Rule requires cost The Commission agrees that standards of these provisions deal with specific, disclosures 188 and prohibits the vendor for Internet or online advertising would substantive disclosure and advertising from making representations in best be considered in a proceeding requirements. The Commission has advertising that are ‘‘contrary to, focusing more narrowly on business decided to group these requirements inconsistent with, or in mitigation of’’ practices in the newer types of together in their own separate section in the cost and other required electronic commerce. In fact, the order to give them more prominence.186 disclosures.189 Nevertheless, the Commission has begun this process by In addition to placing these Commission believes that the requesting comment on the applicability requirements together in a separate importance of the disclosure of cost of many of its rules and guides to section, the proposed Rule clarifies the warrants a separate provision explicitly electronic media.184 term ‘‘variable rate basis’’ that was used prohibiting this type of Nonetheless, the Commission shares in Section 308.3(b)(1)(iii) of the original misrepresentation. Importantly, unlike the concerns of those who fear that, Rule. As discussed, the Commission existing Rule provisions, proposed absent some specific provision in this originally intended this term to cover Section 308.6(a) will not only address Rule, unscrupulous vendors might use situations where the rate charged would misrepresentations of cost that appear in the Internet to sell pay-per-call services vary depending on the options chosen advertising, but it will also address without providing consumers with the by the caller. However, technological misrepresentations that occur during the cost disclosures that are required of pay- advances since the original Rule was pay-per-call transaction itself. For per-call vendors using the traditional promulgated now allow other forms of example, proposed Section 308.6 will print and broadcast media specifically variable rates, such as billing the first address situations where the recorded or addressed in the original Rule. minute at one rate and billing live audiotext program misleads a caller Accordingly, Section 308.3(g) of the subsequent minutes at a lower or higher into staying on the line by proposed Rule requires that, in any rate.187 Thus, Section 308.4(a)(1)(iii)(A) misrepresenting that charges on the pay- advertising medium not specifically now uses the term ‘‘variable option rate per-call service have stopped. addressed elsewhere in the Rule, the basis’’ (emphasis added) in order to The Commission continues to believe, required advertising disclosures must be denote the type of cost disclosure to be as it did when the original Rule was clear and conspicuous and made in a made when the cost of the call varies published, that callers should be left manner in which they cannot be depending on the options chosen by the with no doubt as to when they must avoided by consumers acting caller. hang up to avoid being charged for the reasonably. A vendor must ensure that The Commission believes that call.190 The original Rule requires a in any Internet or online advertisement, consumers should know, in advance of signal or tone at the end of the free a consumer will not receive the placing a call, that the rates may vary as preamble 191 or after any free time information required to make the time passes. Consumers must be given following the preamble.192 Proposed purchase (i.e., the telephone number of sufficient information to make Section 308.6(b) makes clear that if any the pay-per-call service), unless a judgments about how much time they portion of a telephone call is free, consumer also receives the required wish to spend listening to a pay-per-call disclosures, displayed clearly and service and how much money they want 188 16 CFR 308.3(b). conspicuously. This will usually mean to spend for it. Accordingly, the 189 16 CFR 308.3(a)(5). that the disclosures must appear Commission proposes a new provision 190 This is especially important, given that the adjacent to the disclosure of the [308.4(a)(1)(iii)(B)] to specify the cost advertisements of some providers obscure the telephone number itself, and that the amount of ‘‘free’’ time a consumer will receive. For disclosures to be made in instances instance, Commission staff has observed some consumer must not be required to ‘‘click where charges vary according to the deceptive advertisements promising ‘‘10 free through’’ or ‘‘scroll down’’ to see the amount of time the caller is on the minutes,’’ when in reality the caller will not receive disclosures. This proposed change is telephone or to other factors unrelated all of these free minutes in one call—the caller consistent with the proposal contained might receive only two free minutes in five different to options chosen by the caller. The calls to the service. A caller who failed to read the fine print may believe it is safe to stay on the 181 PMAA at 14; ISA at 28–31; AT&T at 11–12, 185 63 FR at 25002–04. telephone line for ten minutes before charges 32; USWEST at 2; Tr. at 560–75. One commenter 186 Original Section 308.3(e) (Prohibition on accrued. The requirement of a signal or tone clearly suggested that the Commission specify reasonable advertising to children) appeared adjacent to these indicating the end of the free time will be an requirements for clear and conspicuous disclosures provisions in the original Rule. However, this important tool in curbing the harm to consumers for pay-per-call services advertised on the Internet Section is not a substantive disclosure requirement from this type of advertising. or online. (NCL at 5). for pay-per-call advertisements. Instead, it 191 16 CFR 308.5(a)(3) and (b). 182 In general, commenters argued that since implements TDDRA’s mandate to prohibit most 192 See December 18, 1996, opinion letter from online advertisements are still in their infancy, any pay-per-call advertisements to children under 12 Eileen Harrington, Associate Director, Division of comprehensive treatment of the topic in this forum (15 U.S.C. 5711(a)(2)(C)). This provision has been Marketing Practices, Federal Trade Commission, to might have an undesired impact on the entire incorporated in the proposed Rule in Section 308.5 Barry J. Cutler, Esq., McCutcheon, Doyle, Brown & online industry. (Advertising to children prohibited). Enerson. (This letter is appended to several 183 Tr. at 569–74. 187 See, e.g., ISA at 22; PMAA at 10–12; TSIA at comments. See, e.g., Exhibit 3 of AT&T comment 184 63 FR 24996 (May 6, 1998). 17–18. or Appendix H of ISA comment.) 58544 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules regardless of where it occurs in the a pay-per-call service to disclose the soliciting calls in this manner has been program, the vendor shall provide a cost of the call in a slow and deliberate the subject of numerous complaints over clearly discernible signal or tone manner and in a reasonably the past several years.203 In some indicating the end of the free time. understandable volume.200 Section instances, consumers report receiving a Several workshop participants 308.7(b) of the proposed Rule retains page from a pay-per-call service that indicated that some pay-per-call that requirement and clarifies that the simply listed an area code and seven- services would experience technical term ‘‘telephone message’’ includes digit number as the return number to difficulties in inserting a tone at the end telephone messages conveyed during call. The number flashed on the pager of the free period of time.193 Other calls placed by a consumer, as well as did not use a 900- or 976-number participants stated their belief that the those conveyed during calls placed by dialing pattern and thus could not be original Rule did not require a tone at the vendor or its agent. The Commission identified by the consumer as an the end of the free portion of the call added this clarifying language in order audiotext service. Absent any and that it was not necessary because to ensure that consumers receive the explanation for the call, consumers consumers could watch their clocks and necessary disclosures regardless of who reasonably assume that such pages know when the free time expired.194 places the telephone call and regardless indicate an urgent call from someone Similar opinions were expressed in of whether the message the consumer known personally or professionally. several of the written comments.195 receives is the result of an inbound or Upon dialing the number given on the Conversely, one written comment an outbound call. pager and after later receiving a bill specifically supported a requirement for Disclosures in facsimile message. New containing an expensive charge for the a tone at the end of the free time to alert Section 308.7(c) of the proposed Rule call, however, the consumer discovers consumers to the fact that the free clarifies that any facsimile message that he or she has called an portion of the call was coming to an soliciting calls to a pay-per-call service international audiotext service. Several end.196 That sentiment was echoed at must include all disclosures required by commenters urged the Commission to the workshop by law enforcement the Rule. Since the original Rule was design particular rules to prevent this officials who had received complaints promulgated in 1993, consumers have practice and to prohibit all unsolicited from consumers who had actually timed had increased access to facsimile messages left on pagers.204 One calls themselves to stay within the machines at work and in the home— commenter urged the Commission to ‘‘free’’ time but were charged either as stand-alone machines or as prohibit more narrowly unsolicited pay- anyway.197 Proposed Section 308.6(b) part of a personal computer system. The per-call advertisements on pagers.205 would ensure that callers receive Commission has received complaints Given current pager technology, in all adequate notice of when charges begin, from consumers regarding instances likelihood it is not possible for most regardless of where in the program the where consumers have received pager solicitations to comply with the free time is offered. deceptive facsimiles soliciting calls to Rule’s advertising disclosure expensive international audiotext requirements. Nevertheless, the Section 308.7 Other Advertising services.201 Vendors who solicit calls to Commission is not inclined to prohibit Restrictions pay-per-call services by using this completely this method of advertising Section 308.7 of the proposed Rule technology should be governed by the so long as such advertisements are not incorporates several sections of the same disclosure requirements as those deceptive. Therefore, proposed Section original Rule that deal with advertising providers who advertise in other printed 308.7(d) makes it clear that pager restrictions and adds three new media. Therefore, this proposed section messages soliciting calls to a pay-per- subsections. clarifies that pay-per-call service call service will be treated like any other Use of electronic tones and referral to information transmitted to consumers advertisement and thus must contain all toll-free numbers. The proposed Rule via facsimile must make all the relevant relevant advertising disclosures retains the prohibition in the original disclosures required by the Rule, and required by the Rule. Vendors using this Rule against using electronic tones in that such disclosures must be provided method of promoting their pay-per-call advertising.198 It also retains the original in the manner required for print services are responsible for ensuring prohibition against referring to toll-free advertisements in proposed Sections that all required disclosures are actually telephone numbers in an advertisement 308.3 and 308.4(a)(2)(ii). displayed by the consumer’s beeper or if the toll-free number is used in a FCC regulations ban unsolicited pager; it is not sufficient to merely manner that violates the prohibitions in facsimile advertisements.202 The FTC’s transmit this information with the hope proposed Section 308.13.199 proposed Rule should not be read to that the recipient’s beeper or pager is Disclosures in telephone message. permit unsolicited facsimile messages or sophisticated enough to display all of The original Rule required any any other practice that would be in the relevant disclosures. telephone message that solicits calls to violation of the FCC’s rules. Therefore, FCC regulations prohibit the use of automatic dialers to call a number Section 308.7(f) states that the FTC’s 206 193 Tr. at 522–25. proposed Rule should not be construed assigned to a paging service. The 194 Tr. at 528–29. to permit any conduct or practice that FTC’s proposed Rule should not be read 195 PMAA at 9–12; TSIA at 17–18; ISA at 20–23. the FCC otherwise has prohibited. to permit the use of automatic dialers to 196 AT&T at 16–17. Use of pagers to solicit calls. New disseminate pay-per-call advertisements 197 Tr. at 532. Section 308.7(d) of the proposed Rule on beepers or pagers, or to permit any 198 16 CFR 308.3(g). The Commission believes clarifies that any beeper or pager other practice that would be in violation this provision will play an important role in of the FCC’s rules. Therefore, Section stopping scam artists from using the ‘‘modem message that solicits calls to a pay-per- hijacking’’ techniques that allegedly formed the call service must include all disclosures 203 basis of the scheme targeted in the Commission’s required by the Rule. The practice of ‘‘Sexy Calls Are a Headache for Pager Users,’’ complaint in FTC v. Audiotex Connection. Internet Memphis (TN) Commercial Appeal (March 2, 1995), advertisements that ‘‘emit electronic tones’’ via a p. 14–1. See also, ‘‘Phone, E-Mail & Pager Messages modem and cause such modems to disconnect and 200 16 CFR 308.3(h). May Signal Costly Scams,’’ FTC Alert (Dec. 1996). redial a pay-per-call service will violate this 201 See, e.g., ‘‘Phone, E-Mail & Pager Messages 204 SW at 3; NCL at 5. provision. May Signal Costly Scams,’’ FTC Alert (Dec. 1996). 205 NCL at 5. 199 16 CFR 308.3(i). 202 47 CFR 64.1200(a)(3). 206 47 CFR 64.1200(a)(1)(iii). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58545

308.7(f) states that the FTC’s proposed the maximum charge for a ‘‘nominal violate the Rule. In addition, the Rule should not be construed to permit cost’’ call to $3.00. proposed provision would prohibit a any conduct or practice that the FCC Parental permission advisory. Both vendor from engaging in these otherwise has prohibited. TDDRA 210 and the original Rule 211 collection activities either ‘‘directly or require the preamble to state that indirectly.’’ This is meant to clarify that Section 308.9 Preamble Message anyone under the age of 18 must have the proposed Rule does not permit a Proposed Section 308.9 incorporates the permission of a parent or legal vendor or service bureau to evade this the provisions previously contained in guardian in order to call. Numerous provision by filtering the charges Sections 308.5(a)–(e) of the original commenters from industry urged that through a third party, such as a billing Rule, setting out the requirements the Commission recommend to aggregator. relating to the introductory disclosure Congress that TDDRA be amended to Finally, proposed Section 308.10(a) message (or ‘‘preamble’’) that must be change the parental consent reformulates the prohibitions of 308.5(f) of the original Rule, specifying that they provided without charge to callers to a requirement to reduce consumer are deceptive practices. Attempting to pay-per-call service. The Commission confusion and to discourage minors collect charges for services that violate proposes two substantive changes to from accessing adult-oriented 212 the Rule is a deceptive practice because this section. First, the proposed Rule material. the bills received by the consumer requires specific disclosures for services To discourage minors from calling falsely indicate that the consumer must billed on a ‘‘variable time rate basis.’’ their services, some information pay for these services when, in fact, the Second, the proposed Rule adjusts the providers prefer that the preamble consumer is not legally obligated to do ‘‘nominal cost’’ exemption to the present a stronger message—i.e., that no so. These are material preamble requirement. one under 18 may place the call and that anyone under that age must hang misrepresentations that are likely to Variable option versus variable time up. The Commission agrees that such a mislead reasonable consumers. rate basis. The proposed provision statement is stronger than the warning Proposed Section 308.10(a) prohibits retains most of the language from the required by the statutory language. this deceptive practice, and has been re- original provision, although the Because it is stronger than the required titled to clarify the purpose of the Commission added clarifying language warning, the statement subsumes the provision. to two of the subsections. Proposed mandated statutory language. For this Section 308.10(b)—Deceptive billing Section 308.9(a)(2)(iii) details the reason, the Commission believes that for time-based charges after manner in which the cost disclosure such statements would comply with the disconnection by the caller. Section must be given, depending on whether requirement for a parental consent 308.5(g) of the original Rule required the the call is billed on a variable option disclosure.213 provider of pay-per-call services to rate basis or on a variable time rate ‘‘stop the assessment of time-based basis. These changes parallel the Section 308.10 Deceptive Billing charges immediately upon proposed changes for disclosures in Practices disconnection by the caller.’’ Section advertisements in proposed Section Section 308.10(a)—Deceptive billing 308.10(b) of the proposed Rule contains 308.4(a)(1)(iii). As in proposed Section for services in violation of the Rule. this same provision and reformulates it 308.4(a)(1)(iii), the preamble cost This section of the proposed Rule to specify that this constitutes a disclosure for calls billed on a variable replaces the ‘‘billing limitations’’ deceptive practice. Charging a consumer option rate basis are the same as those provision contained in Section 308.5(f) for more time than the consumer in the original Rule. In those instances of the original Rule, which: (1) actually used is appropriately where the call is billed on a variable prohibited vendors from billing designated to be a deceptive practice. time rate basis, however, the consumers in excess of the amount Vendors are in the best position to Commission has proposed that the stated in the preamble for those accurately measure the amount of time preamble must state the cost of each services; and (2) prohibited billing for a consumer spends using a pay-per-call different portion of the call (e.g., ‘‘The any services provided in violation of service. Charging a consumer for more first five minutes are $5.99 per minute; any section of the Rule. Proposed than this time misrepresents the amount thereafter, you will be charged $3.99 per Section 308.10(a) treats each of these of time a consumer spent using the minute’’).207 two prohibitions in separate service, and is likely to mislead reasonable consumers into paying for Nominal cost calls. Currently, the subparagraphs and, for greater clarity and precision, substitutes the phrase more time on the service than they Rule allows a vendor to provide a pay- actually used. Thus, the practice of per-call service without a free preamble ‘‘collect or attempt to collect’’ for the original phrase, ‘‘billing consumers.’’ charging a consumer for time-based if the entire cost of the call is $2.00 or charges after a consumer has hung up less.208 The comments suggest that this This proposed modification is meant to ensure that the Rule protects not only the telephone is a deceptive practice. figure may be too low to encourage In the Statement of Basis and Purpose those consumers who have already paid vendors to provide these low cost accompanying the original Rule, the 209 their bill, but also those who have not services to consumers. Section Commission recognized that ‘‘time- yet paid but who have received a bill 308.9(c) of the proposed Rule thus raises sensitive billing is accomplished in one- containing a charge for services that minute increments, and that any portion 207 Proposed Section 308.9(a)(1)(iii)(B). of a minute will be billed as full 208 210 15 U.S.C. 5711(a)(1)(E) and 5711(a)(2)(A)(iv). 16 CFR 308.5(c). time.’’ 214 The Commission also stated 209 ISA at 26 (‘‘a review of approximately 40,000 211 16 CFR 308.5(a)(4). current 900 number applications revealed that only 212 See, e.g., TPI at 4–5; ISA at 23–24; PMAA at then that billing in such a manner 725 of the these applications (many of which 12–13; Tr. at 190–91 and 550–53. would ‘‘not be considered a violation of involved polling) were priced at $2.00 or below. 213 This statement is intended to supersede the this provision.’’ In the Rule review, the The ISA expects, that if the FTC increased the position set out in the FTC staff opinion letter, Commission asked whether billing in threshold to $3.00, more [vendors] would consider dated May 17, 1994, from Heather L. McDowell, offering services at or about $3.00 per call. As a staff attorney, Federal Trade Commission, to fractions of minutes was now result, the number of low-priced services available William W. Burrington of the Interactive Services to the public should increase.’’). Association. 214 58 FR 42387 (August 9, 1993). 58546 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules possible.215 Comments revealed that Rule’s cost disclosure requirements commenters and participants supported fractional minute billing is now possible because vendors cannot determine this the idea of requiring international pay- and is accomplished by some information in advance.221 Several per-call services to be offered through providers.216 Although several participants suggested that free 900 numbers, so that all of the consumer commenters requested that they be preambles could not be inserted in protections required by TDDRA and the permitted to use business discretion international audiotext services because Rule could be applied to such when choosing whether or not to use the international toll charges begin services.229 one-minute billing or to implement immediately upon connection, and Based on the record and on the fractional minute billing, the Rule as because exact cost information could Commission’s enforcement mandated by Congress does not allow not be provided in the advertising or in experience,230 the Commission believes for such discretion. Title II of TDDRA a preamble due to the multitude of that the practice of disguising audiotext requires that the Commission factors that affect the cost of an charges as long-distance or other promulgate rules requiring providers of international telephone call (e.g., the telephone toll charges is inherently pay-per-call services to ‘‘stop the caller’s carrier, calling plan, time of day inconsistent with the protections set assessment of time-based charges called, origin of call).222 Several LECs forth by Congress in Titles II and III of immediately upon disconnection by the that bill for pay-per-call services TDDRA. This is true for several reasons. caller.’’ 217 Based on the current indicated that currently it is impossible First, billing statements containing these information contained in the record, the to ensure that calls to international charges do not accurately identify the Commission believes that technology audiotext services appear on a separate charges, nor do they meet the Rule’s has made it possible to bill in section of the telephone bill, as required requirement in Section 308.5(j)(1)231 increments smaller than one minute.218 by the original Rule,223 because there is that the charges be displayed in a Thus, under the proposed Rule, billing no identifiable dialing pattern portion of the bill that is ‘‘identified as in one-minute increments will no longer associated with international audiotext not being related to local and long- be acceptable. services.224 In addition to these distance telephone charges.’’ important protections which are Second, international audiotext Section 308.12 Prohibition Concerning guaranteed by Titles II and III of services cannot accurately disclose the Toll Charges TDDRA, international audiotext costs callers will incur when they access As discussed, supra, the Commission services, as a discrete category, cannot the service.232 It is insufficient to proposes extending the definition of be blocked under Title I of TDDRA; i.e., disclose that ‘‘long-distance rates ‘‘pay-per-call services’’ to include all consumers can choose to block calls to apply’’ 233 or even that the rates are audiotext services, regardless of the all international telephone numbers or much higher than rates to some of the dialing pattern used to access the none at all, but cannot block calls only more familiar international destinations. service.219 The proposed definition to selected international numbers that TDDRA mandated that pay-per-call would include many services offered access audiotext services.225 Moreover, services disclose in advertising ‘‘the over international or other long-distance a block on international dialing will not total cost or the cost per minute.’’ 234 numbers. By expanding the definition to block calls to the Caribbean countries Third, according to the discussion at cover these services, the Commission where many of these services terminate, the workshop, current technology does intends that the Rule should apply because those countries are part of the not allow international audiotext to equally to all providers of audiotext, North American Numbering Plan.226 operate in such a way as to provide two regardless of the dialing pattern used to These apparent technological of the other important protections access those services. The proposed difficulties in applying the Rule’s intended by TDDRA: (1) a free preamble Rule does not require that pay-per-call consumer protections to international message that provides the caller with services be offered only over 900 audiotext services prompted some cost disclosures and the opportunity to numbers; rather, the Rule requires that, commenters to suggest that, if the hang up without incurring a charge; and regardless of the telephone number used Commission were to extend the (2) the ability to block access to these to access a service, the vendor and the definition of pay-per-call services to services without blocking access to service bureau must provide the service cover international audiotext services, other, non-audiotext, international in a manner that complies with the then the Commission should exempt numbers.235 Rule. these services from having to comply There was considerable discussion at fully with the Rule.227 On the other forcing information providers to use international the workshop relating to the issue of numbers to provide their services. That’s a choice hand, one consumer organization that they are consciously making. We’re being asked whether many of the basic consumer condemned the notion that businesses essentially to countenance this choice to use these protections required by the Rule are that choose to offer audio information numbers and to not give consumers the same technologically available in the and entertainment services via protections that we felt so strongly they were 220 entitled to with 900 numbers, because it would be international audiotext context. In international dialing patterns should be written comments, one commenter too expensive for the companies to do so, resulting permitted to do so without providing all in what—what we have seen as tremendous harm, pointed out that international audiotext of the consumer protections economic harm, to consumers.’’) services could not comply with the contemplated by TDDRA.228 Several 229 SNET at 2; SW at 2; AT&T at 29–30; Tr. at 344, 369. 215 62 FR 11754 (March 12, 1997). 230 See, e.g., FTC v. Daniel B. Lubell, No. 3–96– 221 ISA at 27. 216 AT&T at 14; US WEST at 6–7. CV–8200 (S.D. Iowa, filed Dec. 17, 1996) and FTC 222 TSIA at 20–21; Tr. at 345, 393. 217 v. Interactive Audiotext Services, Inc., No. 98–3049 15 U.S.C. 5711(a)(2)(D). [Emphasis added]. 223 218 16 CFR 308.5(j)(1). CBM (C.D. Calif., filed April 22, 1998). The Commission solicits comment on this 224 231 determination. Tr. at 440–41. This provision is found in 308.18(a) of the 225 proposed Rule. 219 Excluding calls resulting in only de minimis See, e.g., ALLIANCE at 2–3. 232 payments to information or entertainment 226 Tr. at 432. See, e.g., ISA at 27; ITA at 11–12. providers, presubscription agreement services, calls 227 ISA at 27. 233 See, e.g., Interactive Audiotext Services and utilizing telecommunications services for the deaf, 228 Tr. at 418 (NCL: ‘‘What I am really hearing is Daniel B. Lubell. and tariffed directory services provided by a that it is probably technically feasible to give 234 15 U.S.C. 5711(a)(1)(A) and (2)(A)(ii). common carrier. Proposed Sections 308.2(g)(2)–(3). consumers the same types of protections but it is 35 Tr. at 429–32. There seemed to be some 220 Tr. at 393–460. not currently economically feasible, but nobody is disagreement between at least one of the common Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58547

Fourth, consumers who receive undermine the rights afforded to Much of the language from Section charges for international pay-per-call are consumers by TDDRA. Therefore, 308.12 is taken from the TDDRA not able to exercise their dispute Section 5711(a)(2)(J) of TDDRA gave the definition of ’’telephone-billed resolution and other rights guaranteed Commission the flexibility to prescribe purchase.‘‘ This will ensure that the by TDDRA. Long-distance toll charges ‘‘such additional standards’’ as may be proposed Rule will prohibit precisely are expressly excluded from the needed ‘‘to prevent abusive practices.’’ those types of pay-per-call services that statutory definition of ‘‘telephone-billed Additionally, in Title II of TDDRA, would not be covered by the dispute purchase’’ and thus are not covered by Congress directed the Commission to resolution protections guaranteed by the billing and collection protections of include in its Rules provisions to: Title III of TDDRA. The Commission 236 Title III of TDDRA. By concealing a prohibit unfair or deceptive acts or practices believes that this is essential in order to pay-per-call charge within an that evade such rules or undermine the rights protect the rights afforded to consumers international telephone toll charge, a provided to customers * * *, including the by TDDRA. Whenever a consumer is vendor effectively evades the use of alternative billing or other procedures billed for pay-per-call services that requirement to fulfill the consumers’ [emphasis added].238 result in a toll charge, the vendor of that dispute resolution rights under Title III. Similarly, Title III of TDDRA directs the pay-per-call service will have violated By relying on a billing and collection Commission to include provisions in its the proposed Rule.243 system for toll charges—a system Rules to: Section 308.13 Prohibitions designed to guarantee payment to prohibit unfair or deceptive acts or practices Concerning Toll-Free Numbers carriers for telecommunications that evade such rules or undermine the rights transport services they provide— provided to customers under [Title III of Section 308.13 of the proposed Rule international audiotext service TDDRA].239 retains the provision in Section 308.5(i) providers remain safely insulated from The record developed in this matter of the original Rule prohibiting any injured consumers who have no means leaves little doubt that the practice of person from using a toll-free number to to pursue refunds for international concealing a charge for audio provide access to or delivery of pay-per- audiotext charges that may be incurred information or entertainment services call services. Sections 308.13(a) through as a result of deceptive practices.237 within a regulated toll charge has (d) of the proposed Rule have been Domestic long-distance carriers eroded the vital consumer protections modified to clarify and emphasize that 240 sometimes forgive these charges as a provided by TDDRA. Thus, proposed a consumer cannot be held responsible means of cultivating consumer Section 308.12 provides that a vendor for charges resulting from a goodwill, but in doing so they are may not offer a pay-per-call service that presubscription agreement into which willingly forfeiting payment for services would result in the consumer receiving he or she did not enter. In addition, rendered—i.e., long-distance transport a charge for a toll call. The most Section 308.13(c) clarifies that no of the call. Prohibiting vendors from frequent example of this practice is consumer may be charged for disguising charges for information or international audiotext, where the information or entertainment conveyed entertainment services as toll charges consumer is billed for an international during a call to a toll-free number, will prevent consumers and common long-distance call and a portion of the unless that consumer has agreed to be carriers from having to bear this loss. long-distance charge paid by the charged for the information or In sum, the Commission believes that consumer is shared with the provider of entertainment by entering into a concealing a pay-per-call charge within the audio information or presubscription agreement that satisfies a telephone toll charge is a practice that entertainment.241 In addition, the the requirements of the proposed Rule. is inherently deceptive because it Commission is aware of other situations The Commission also proposes evades all of the important protections where consumers have been assessed changing the language of 308.13(d) to intended by TDDRA that are set out in ’’toll‘‘ charges that are, in fact, charges provide that the prohibition applies to the original Rule. The Commission for information or entertainment all incoming calls for which there is a intends for consumers to receive all the programs, not transmission of charge, regardless of whether or not they protections of Title II and Title III of telecommunications.242 are characterized as ‘‘collect’’ calls.244 TDDRA when using any pay-per-call The Commission also proposes service. The practice of hiding the cost 238 15 U.S.C. 5711(a)(4). modifying the language of proposed of an audiotext call within the cost of a 239 15 U.S.C. 5721(a)(1). Sections 308.13(c) and (d) to clarify that toll charge represents a serious threat to 240 As one commenter stated: ‘‘The financial the prohibitions against charging for the impact of pay-per-call service abuses which occur this goal. over non-900 dialing patterns is staggering. content of an outbound or inbound call Congress realized that it could not Unsuspecting consumers run up huge amounts of include entertainment services as well anticipate all provisions that might be debt, especially for international calls. Even as information services. This will more necessary to prevent unfair, deceptive, authorized users are taken aback at the high dollar effectively implement the Congressional or abusive practices that would amounts charged to call these numbers.’’ SW at 4. 241 See, e.g., Daniel B. Lubell; FTC v. Interactive mandate set forth in Title II of TDDRA Audiotext Services, Inc., No. 98–3049 CBM (C.D. that the Commission prohibit vendors carriers and the international audiotext providers as Calif., filed April 22, 1998). See also, Wisconsin v. ‘‘from providing pay-per-call services to whether free preambles could be provided at the Top Communications, Inc., No. 95 CV 200 (Cir. Ct., through an 800 number or other beginning of international audiotext services. The filed Jan. 10, 1997). MCI representative suggested that international 242 See letter dated September 1, 1995, to Ronald telephone number advertised or widely 245 services could be offered via a 900 number and that J. Marlowe of Cohen, Berke, Bernstein, Brodie, understood to be toll-free.’’ Since would enable a free preamble to be provided. Tr. Kondell & Laszlo, from John B. Muleta, Chief, pay-per-call services include at 345–46. In any event, the FCC has no jurisdiction Enforcement Division, Common Carrier Bureau, over foreign common carriers to require them to Federal Communications Commission, regarding 243 implement TDDRA-like blocking on their audiotext the legality of providing information and In all likelihood, the service bureau will have lines. entertainment programs through calls to long- violated this provision as well because the service 236 15 U.S.C. 5724(1)(B). distance numbers, which would be reached by bureau ‘‘should have known’’ of this violation. 237 Tr. at 443–61. See also, e.g., Daniel B. Lubell. dialing a 10–XXX number, a 500-number, or a 700- 244 The Commission uses the term ‘‘collect call’’ In fact, one advertisement for an international number. The FCC concluded that such in its most general sense to refer to any instance audiotext service bureau boasts that vendors who arrangements would violate ‘‘both the letter and the where a consumer incurs a charge by virtue of use their services suffer ‘‘No Chargebacks!’’ spirit’’ of TDDRA and Section 228 of the answering or accepting a telephone call. InfoText Magazine (May/June 1996), front cover. Communications Act of 1934, as amended. 245 15 U.S.C. 5711(a)(2)(F). 58548 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules entertainment services in addition to call and avoided the charges. Such an facilities, experience has demonstrated information services, this section also assumption is not justified, however, there is no reason to distinguish those should include entertainment services. where a single call to a pay-per-call services from any others provided by service results in charges, not only for service bureaus. Thus, the proposed Section 308.14 Monthly or other the initial call, but monthly or other Rule imposes liability on a service recurring charges recurring charges that cannot be bureau regardless of the service it Section 308.14 of the proposed Rule blocked, even though the initial call provides a rule-violating vendor, if the prohibits a vendor from providing a could have been. A single call to a pay- service bureau knew or should have pay-per-call service that results in a per-call service from a consumer’s home known of the violation.252 monthly or other recurring charge to a is simply not an adequate basis for consumer, unless that vendor and recurring charges. Thus, under the Subpart C—Pay-Per-Call Services and consumer have entered into a proposed Rule, a presubscription Other Telephone-Billed Purchases presubscription agreement that agreement would be required for all Section 308.17 Express Authorization authorizes such monthly or other such arrangements. Required recurring charges. The proposed Rule also states that the presubscription Section 308.16 Service Bureau Section 308.17 of the proposed Rule agreement must meet the requirements Liability specifies that the ‘‘express authorization of § 308.2(j). Proposed Section 308.16 retains the of the person to be billed’’ is required There was discussion at the workshop provision of the original Rule which for a telephone-billed purchase that is concerning unexpected and held service bureaus liable where they not blockable by TDDRA blocking. The unauthorized recurring pay-per-call knew or should have known of proposed section also specifies that it is service charges on consumers’ violations of the Rule by vendors of pay- a deceptive practice and a Rule telephone bills, often in connection per-call services. However, where the violation for any vendor, service bureau, with ‘‘psychic’’ services.246 Consumer original Rule contemplates service or billing entity to collect or attempt to organizations have received numerous bureau liability only in those instances collect payment, directly or indirectly, complaints about such unauthorized where its ‘‘call processing facilities’’ are for a telephone-billed purchase that was recurring monthly charges.247 Several used,250 the proposed Rule expands the not TDDRA blockable, where the participants described scenarios where a circumstances under which a service vendor, service bureau, or billing entity consumer had made a call to an 800 bureau may be found to be indirectly knew or should have known that the number and then unexpectedly began to liable—i.e., where a law-violating purchase was not authorized by the incur monthly charges on his or her vendor has availed itself of any of the person from whom payment is being phone bill.248 Several commenters and services offered by a service bureau. sought. participants suggested that the problem Since adoption of the original Rule, the Requirement of authorization. of unauthorized recurring charges could capabilities and offerings of service Generally, purchases of goods or best be remedied by requiring a bureaus has greatly expanded to include services require some form of presubscription agreement for all such services such as voice processing, call authorization from the purchaser—that charges.249 processing, billing aggregation, call is, the purchaser must indicate some 253 The Commission agrees that such an statistics (call and minute counts), call intent or desire to make the purchase. approach is appropriate. The revenue arrangements (including Telephone-billed purchases are no Commission believes that, when revenue-sharing arrangements with exception to this broad legal principle. compared to the one-time purchase of common carriers), and pre-packaged For telephone-billed purchases that can an audiotext program, the continuing pay-per-call investment opportunities be blocked by TDDRA blocking, the business relationship between a (‘‘turn-key operations’’).251 Some of Commission believes it is reasonable for provider and a caller that is involved in these newly-available service bureau a vendor to presume that a call that long-term membership would likely functions (e.g., acting as an aggregator comes from a telephone subscriber’s entail more terms and conditions (and for billing and collection) have given telephone was authorized by that more complicated terms and rise to many consumer complaints about subscriber. After all, if the subscriber conditions), as well as higher long-term cramming. Service bureaus that perform wanted to prevent these types of charges costs. A presubscription agreement, these functions are in the best position from being made through his or her with its requirements for written terms to know the practices of their client telephone, there is a cost-free and and a PIN, is therefore a more vendors because they contract directly simple method to do so: TDDRA appropriate, and likely a more effective, with these vendors and because they are blocking. Election of TDDRA blocking format for disclosures of this often the first point of contact for will not require the line subscriber to information about telephone-billed consumer complaints about charges for sacrifice other valuable uses of his or purchases that involve recurring charges their client-vendors’ services or her telephone—he or she will still be than is a preamble. As noted above, in products. While the original Rule able to use the telephone for any most cases, the Commission believes contemplated that a service bureau purpose other than making TDDRA- that a vendor is justified in assuming would be liable only for violations of a blockable telephone-billed purchases. that a call from a consumer’s telephone vendor when the vendor of pay-per-call 252 In some circumstances, a service bureau will to a 900-number service (and ensuing services had used its call processing always be in a position where it should know of a charges for the service) have been vendor’s violation. For example, service bureaus authorized by that consumer, since the 250 16 CFR 308.5(l). should know if they are providing services to consumer could have easily blocked the 251 See, e.g., FTC v. Hold Billing Services, Ltd., vendors of pay-per-call services that result in toll- No. SA98CA0629 FB (W.D. Texas, filed July 19, charges. In such instances, a vendor will be in 1998); FTC v. International Telemedia Associates, violation of proposed Section 308.12, and a service 246 Tr. at 382–84, 498–505. Inc., No. 1–98–CV–1935 (N.D. Ga., filed July 10, bureau providing services to that vendor will be 247 See, e.g., NCL at 4. 1998); and FTC v. Interactive Audiotext Services, liable under proposed Section 308.16 (Service 248 Tr. at 498–500. Inc., No. 98–3049 CBM (C.D. Calif., filed April 22, bureau liability). 249 NCL at 5; FLORIDA at 8; NAAG at 11; TSIA 1998). See also, ‘‘9th Annual Service Bureau 253 Restatement (Second) of Contracts at 16–17; Tr. at 498. Review,’’ InfoText Magazine (July/August 1997). (‘‘Restatement’’) § 23 (1979). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58549

However, where a telephone-billed be billed for the service, would be to those circumstances where a vendor, purchase is not TDDRA blockable, the evidence of express authorization. If a service bureau, or billing entity ‘‘knew Commission does not believe that it is valid PIN (as that term is defined by the or should have known’’ of the lack of reasonable for vendors to presume that proposed Rule), were used by the caller, authorization. telephone-billed purchases made from a after hearing all the material terms of Parties affected—Vendors, service subscriber’s telephone were, in fact, the agreement, that would also bureaus, and billing entities. Proposed authorized by that subscriber. A line constitute evidence of express Section 308.17 would apply to vendors subscriber has no effective means of authorization.256 and service bureaus because these preventing these purchases from being Deceptive billing practice. A entities are responsible for structuring made, short of monitoring the consumer is not legally obligated to pay and offering the underlying service, and placement and content of every charges for a telephone-billed purchase they are in a position to know, with telephone call made from his or her that falls within the Rule’s enumerated respect to any particular offering, telephone. A merchant is not entitled to billing errors. As discussed above, the whether sufficient steps were taken to presume that the line subscriber has proposed Rule would include within ensure that express authorization has agreed to pay for a good or service the term ‘‘billing error’’ charges arising been obtained. Vendors are most merely because that subscriber’s from unauthorized, non-blockable directly in control of how their own telephone was used to order a product telephone-billed purchases. Therefore, a transactions are conducted and the or service. A consumer is no more representation to a consumer that he or procedures used to secure authorization. obligated to pay for a non-blockable she owes a charge for a telephone-billed They are in a position to know whether telephone-billed purchase made from purchase that was not, in fact, expressly or not those procedures are effective in his or her telephone than the consumer authorized by that consumer is likely to securing actual authorization from the is obligated to pay for any other mislead a reasonable consumer into person who will be billed for the purchase (for example, a purchase of a paying a charge that is not collectible service. Service bureaus are in a sweater from a clothing catalog) that just under the Rule. Proposed Section similarly strong position to demand (by happened to be made from that 308.17 thus prohibits vendors, service contract or otherwise) that responsible consumer’s telephone.254 bureaus, or billing entities from procedures be used by the vendor to Meaning of the term ‘‘express collecting or attempting to collect secure express authorization, and are in authorization.’’ As explained in the charges that result from an an excellent position to monitor vendors discussion of the proposed new billing unauthorized, non-blockable telephone- to ensure that adequate precautions are error in section 308.2(b)(10) of the billed purchase, if the vendor, service being followed. proposed Rule, the Commission uses the bureau, or billing entity knew or should In addition to covering vendors and term ‘‘express authorization’’ to indicate have known that such charges were not service bureaus, proposed Section that the authorization contemplated by authorized by the person from whom 308.17 also applies directly to billing the proposed Rule cannot be inferred payment is being sought. entities.257 These entities (in most cases from the fact that a telephone call came Limited applicability—‘‘Knew or LECs) play a unique and critical role in from a specific telephone. ‘‘Express’’ should have known.’’ Proposed Section the billing of products and services on authorization requires that the person to 308.17 applies where the vendor, telephone bills. They are frequently in be billed for the service actually agree service bureau, or billing entity ‘‘knew a position to know if the wrong to make the purchase. For example, a or should have known’’ that the charge consumer has been billed, because often tape recording of the person to be billed was not authorized by the person from they are the first point of contact for for the service being informed of the whom payment is being sought. This consumer complaints. Any billing entity material terms of the agreement and standard encompasses not only those that receives complaints from then agreeing to make the purchase on circumstances where a vendor, service consumers who are being charged those terms and pay the charge, would bureau, or billing entity had actual without their express authorization is constitute evidence of express knowledge that a particular consumer on notice of the problem, and should authorization.255 Similarly, an was charged without authorization, but take immediate action to stop the agreement containing a non-deceptive also circumstances where the vendor, unlawful billing or risk violating statement of material terms and service bureau, or billing entity should proposed Section 308.17.258 conditions and signed by the person to have known that numerous consumers were likely to have been billed without Section 308.18 Disclosure 254 This was illustrated in two of the Requirements for Billing Statements. Commission’s recent cases. FTC v. Interactive authorization. Audiotext Services, Inc., No. 98–3049 CBM (C.D. The Commission believes that it is Section 308.18 of the proposed Rule Calif., filed April 22, 1998); and FTC v. unnecessary to impose strict liability on is a revised version of Section 308.5(j) International Telemedia Associates, Inc., No. 1–98– the vendor, service bureau, or billing of the original Rule. The original CV–1935 (N.D. Ga., filed July 10, 1998). These entity for each time an attempt is made situations can easily be distinguished from a provision applied only to billing consumer’s obligation to pay for any tariffed to collect an unauthorized charge. The statements for pay-per-call services, charges for basic telecommunications service Commission believes that in most cases, whereas the proposed revision requires resulting from calls made from his or her telephone. the dispute resolution provisions of disclosures to be placed on billing First, basic telecommunications services are most proposed Section 308.20 should supply often purchased from an entity with whom the consumer has a pre-existing and voluntary an adequate remedy for consumers who 257 Where a common carrier is also a billing relationship. More importantly, consumers accept receive these types of unauthorized entity, liability may already exist under Title I of basic telecommunications services on terms and charges on their telephone bills. TDDRA where the carrier knew or should have conditions that are regulated by the FCC, from Therefore, the Commission proposes known of the violation. 47 U.S.C. 228(e)(1). Billing carriers that are under a statutory duty to ensure entity liability under proposed Section 308.17 that the services provided to consumers in a limiting the applicability of this section would complement this Title I provision. manner that is deemed ‘‘just and reasonable.’’ 47 258 The Commission supports the efforts of the U.S.C. 201. 256 For example, if a LEC were to issue a secure LECs and the FCC in developing ‘‘best practices’’ 255 It is important to reiterate that the recording PIN to subscribers, the LEC could require guidelines to prevent cramming. Proposed Section must show that the person to be billed for the subscribers to use this PIN when ordering enhanced 308.17 should work in complementary fashion to service authorized the charge. services. fight this harmful practice. 58550 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules statements for all telephone-billed Several commenters and participants Section 308.19 Access to information purchases. in the workshop reported widespread The proposed Rule retains the Subsection 308.18(c) identifies those complaints from consumers who were requirement from Section 308.6 of the disclosures that will still be required unable to obtain information from LECs original Rule that common carriers who only in billing statements for pay-per- or billing aggregators about charges or provide telecommunications services to call purchases. This subsection includes 261 about the identity of the vendor. In any provider of pay-per-call services the substance of section 308.5(j)(2) of some instances (e.g., international pay- must make available to the Commission, the original Rule, but also requires that per-call services), a consumer can only upon request, any records and financial the billing statement list the actual get the name of the foreign telephone telephone number dialed for any pay- information maintained by such carrier company from his or her long-distance relating to the arrangements between the per-call purchase. Representatives from provider, but not the identity of the the LECs and other common carriers two entities. However, the proposed audiotext service provider with whom Rule expands that requirement to reported at the workshop that it was not the foreign carrier splits the revenues uncommon for calls to be represented as include records and financial collected from the consumer.262 In some having been made to one number when information relating to arrangements cases, consumers who call a listed the consumer had actually dialed some with vendors of other telephone-billed customer service 800 number are unable other number.259 The Commission’s goods or services, as well as to enforcement experience confirms this. to get through, and often give up in arrangements with service bureaus. This practice of misrepresenting on a frustration or write to consumer or law The rapid growth of telephone-billed billing statement the number purported enforcement agencies. purchases (other than pay-per-call), and to have been dialed (and giving rise to NAAG recommended that the bill list the rapid growth of problems associated the charge) is likely to mislead the the name of the actual vendor so with such purchases has shown that consumer in attempting to understand consumers can take a dispute directly to there is no rationale for limiting this his or her bill. It is also confusing to the that party in the first instance instead of requirement as the original Rule did. LEC when it tries to identify a disputed going through the LEC and/or the third- Whenever a common carrier provides call. The practice deprives consumers of party billing and collection entity.263 telecommunications services to a material information about the actual Industry representatives countered that vendor that offers any type of telephone- nature of the charges allegedly owed.260 many vendors do not have the billed goods or services (including pay- Therefore, the Commission believes that capability to respond to routine billing per-call), it should provide to the Commission, upon request, any records it is necessary that a billing statement inquiries; furthermore, industry noted and financial information relating to its accurately reflect the telephone number that there are limitations on the amount arrangements with those vendors. In dialed by the caller. This information, of information that can be printed on addition, since the original Rule was coupled with the date, time, and the bill.264 In the alternative, NAAG promulgated, it has become clear to the duration of the call, should be sufficient recommended that the entity whose Commission that, in most cases, the information for both the consumer and name and number appear on the bill business arrangement exists between the the LEC to identify a particular call in must have ultimate authority for common carrier and the service bureau, the event of a dispute. handling disputes and issuing refunds and not directly between the carrier and Subsection 308.18(d) of the proposed or credits.265 In response, industry Rule modifies the requirements of the vendor. Thus, on a practical level, countered that billing and collection Section 308.5(j)(3) of the original Rule a requirement limited to information entities already have full authority to by expanding the provision to cover all regarding vendors will not result in satisfactorily resolve any dispute.266 telephone-billed purchases, not just meaningful information when, in many pay-per-call purchases. The proposed The Commission believes that it is cases, the carrier will only possess the provision retains the requirement that important that billing entities and relevant information with respect to the billing statements display a local or toll- vendors be accountable to their service bureau. free telephone number where customers. However, the Commission Section 308.20 Dispute Resolution consumers can obtain answers to also is mindful that such protections Procedures questions and information about their must be balanced against the cost to billing rights and obligations in industry. The Commission does not Section 308.20 of the proposed Rule connection with telephone-billed believe that it is necessary to list the is a revision of Section 308.7 of the purchases. The revised section also name of the vendor on the bill, as long original Rule, which was titled ‘‘Billing retains the requirement that consumers as the entity listed on the bill is the and collection for pay-per-call services.’’ must be able to obtain the name and party with authority to answer questions The proposed Rule changes the title to mailing address of the vendor by calling and to resolve disputes, including ‘‘Dispute Resolution Procedures’’ that number. In addition, the proposed authorizing a refund or credit. because the Commission believes this Rule specifies that the consumer must title more accurately reflects the 267 be able to readily obtain this 261 NAAG at 12–13; Tr. at 114–16, 173–74, 262– substance of the section. Although information when he or she calls the 65. One of the NAAG representatives described the much of the language in the original number listed on the statement. frustration consumers often feel when attempting to section has been retained, the inquire about charges on their telephone bills in this way: ‘‘By the time consumers get to us * ** Commission has revised several 259 Tr. at 159–62 (SW reported that companies they are tremendously angry, and part of this anger provisions in this section to clarify the had submitted charges for 900 numbers that were comes from having to go through this maze to responsibilities of the parties, enhance never dialed). See also, Tr. at 203–05; 233–38 discover, if they can, who put the charges on the consumer protections by closing (PILGRIM reports that calling card calls and calls bill.’’ Tr. at 173–174. The Commission’s to 800 numbers are reported on consumers’ billing enforcement experience confirms this observation. loopholes, and increase the efficiency of statements as 700 numbers). 262 Tr. at 115. the billing process, thus reducing the 260 For example, consumers who receive bills that 263 burden on industry. do not accurately reflect the telephone number NAAG at 13. See also, Tr. at 255, 263–64. dialed will not be able to compare the charges on 264 Tr. at 258–59. the bill to the charges disclosed in an advertisement 265 Tr. at 263–64. 267 Proposed Section 308.20 implements Title III soliciting calls to a specific telephone number. 266 Tr. at 265. of TDDRA, 15 U.S.C. 5721–5724. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58551

TDDRA requires that the Commission beginning of proposed Sections customer’s election of blocking pursuant impose requirements that are 308.20(a) and (m) indicating that a to 47 U.S.C. 228(c)’’ as described by substantially similar to the requirements consumer must initiate a billing review proposed 308.2(b)(10), and the customer imposed under TILA and FCBA with within 60 days of receiving the bill ‘‘in subsequently submits a billing error respect to the resolution of credit order to be guaranteed the protections notice, the billing entity is obligated to disputes.268 TDDRA also directs the provided by the Rule.’’ This language, provide some supporting evidence that Commission to consider the extent to however, does not prohibit the LECs the customer being billed had which the regulations should diverge from honoring disputes (and providing ‘‘expressly authorized’’ that purchase in from the requirements of TILA and refunds) raised after the 60-day period advance (e.g., by the voice recording or FCBA in order to protect consumers as has expired.273 signature of the person being billed, well as be cost effective to billing Facilitating the reporting of a billing reliably indicating authorization to bill entities.269 The proposed Rule error. Consumers should be able to for a specified product or service). preserves, wherever feasible, the report billing errors easily. The Requirement that a reasonable balance struck by the original Rule. Commission does not intend that any investigation be conducted if collection However, as described in more detail, consumer waive his or her right to attempted on disputed charge. Several infra, there are a number of instances invoke the dispute resolution commenters expressed concern that in where the Commission now believes protections guaranteed by the Rule many, if not most, circumstances where that some additional divergence from simply because he or she used the a consumer has submitted a billing error TILA and FCBA may be necessary to wrong words in a billing error notice. notice, no one (neither the billing entity, protect consumers. Therefore, Section 308.20(a) of the the vendor, nor the service bureau) Definitions. As discussed supra, the proposed Rule modifies the language of provides supporting evidence to the definitions contained in Section original Section 308.7(b) to clarify the consumer showing that a disputed 308.7(a) of the original Rule have been consumer’s burden with respect to charge is in fact valid.274 NAAG stated moved to Section 308.2 of the proposed reporting a billing error. Under that, in many instances, the vendor or Rule and have been incorporated proposed Sections 308.20(a)(2) and its agent simply sends a form letter alphabetically into the other definitions. (a)(3), a billing error notice need not stating that the call originated from the Clarification of the 60-day time limit indicate a belief that there is a ‘‘billing consumer’s phone number and, thus, to initiate a billing review. In proposed error’’ (as that term is defined by the consumer must pay the charge.275 Sections 308.20(a) and 308.20(m), the proposed Section 308.2(a)); rather, it The Commission believes that a Commission has clarified the meaning need only indicate a belief that there is consumer who disputes a telephone- of the time limit within which the an error of some kind. The purpose of billed purchase charge under the Rule consumer may initiate a billing review. the consumer’s notice is to alert the should not have to pay that charge The original Rule provided: billing entity of a potential problem, not unless a billing entity conducts a A customer may initiate a billing review to fully assert a list of facts, which if reasonable investigation of the validity ** * by providing the billing entity with true, would constitute a ‘‘billing error.’’ of the charge and determines that there notice of a billing error no later than 60 days Notices that would satisfy the proposed was no billing error. The Commission after * * * the first billing statement that requirement include but are not limited also believes that the consumer who contains [the charge]. (emphasis added) to statements such as: ‘‘There is disputes the charge should be entitled to [308.7(b)] something wrong with my bill,’’ documentary evidence of the charge’s Many industry members interpreted ‘‘Nobody was at home that day,’’ ‘‘I did validity, and a written explanation of that provision to mean that the billing not order these services,’’ ‘‘I did not the billing entity’s conclusion that no entity (generally the LEC) was make these calls,’’ ‘‘I do not know what billing error occurred. Section 308.20(f) prohibited from allowing any challenges these charges are for,’’ ‘‘This is not what of the proposed Rule requires that, once to a bill containing charges for I paid for,’’ or ‘‘These were supposed to a customer has submitted a billing error telephone-billed purchases after the 60- be free.’’ notice to a billing entity, the customer day period had ended.270 Conversely, After receiving a notice from the need not pay the charge until a the LECs understood the provision to consumer indicating that there is some reasonable investigation of the charge mean that they were required to give the sort of problem or error with the billing has been conducted, and until the consumer at least 60 days to dispute a statement, the billing entity then has the customer has received the written charge, but that they were not burden under proposed Section 308.20 explanation and documentary evidence prohibited from giving the consumer to determine whether there was, in fact, setting forth that no billing error has more time.271 The Commission did not a ‘‘billing error.’’ Until it makes such a occurred. intend that the original Rule require a determination, a billing entity may not Secondary collection activities by billing entity to refuse to honor a attempt to collect the disputed charges. billing entities other than the one dispute raised after 60 days. Rather, It is the billing entity, not the consumer, designated to receive and respond to consumers must raise a dispute within who bears the responsibility of knowing billing errors. If a billing entity receiving 60 days in order to preserve their rights the potential billing errors that may be the billing error notice decides to under this section, including the right to involved in a given telephone-billed respond to that notice by forgiving the an investigation and protection against purchase. For example, if a billing entity disputed charge, it has no further further collection activity while the has charged a customer for a obligation to conduct a reasonable dispute is under investigation.272 In ‘‘telephone-billed purchase * * * that order to clarify this, the Commission has would not have been avoided by that 274 Tr. at 149–50; SNET at 7; FLORIDA at 2–3, 11; added an explanatory phrase at the SW at 3, 8–10. 273 As discussed infra, the proposed Rule also 275 Tr. at 150. See also, FTC v. Hold Billing imposes new restrictions on the billing entities Services, Ltd., No. SA98CA0629 FB (W.D. Texas, 268 15 U.S.C. 5721(a)(2). (generally the LECs) who initially deal with filed July 19, 1998); FTC v. International Telemedia 269 15 U.S.C. 5721(d)(10). consumers. These new restrictions are designed to Associates, Inc., No. 1–98–CV–1935 (N.D. Ga., filed 270 Tr. at 25, 44, 63–64, 271–78. address vendors’ complaints that they experience July 10, 1998); and FTC v. Interactive Audiotext 271 Tr. at 49–50, 101–03. difficulty obtaining timely customer information Services, Inc., No. 98–3049 CBM (C.D. Calif., filed 272 Tr. at 245, 248, 274–75. from LECs. April 22, 1998). 58552 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules investigation. In these circumstances, Proposed section 308.20(f) prohibits account, or (ii) conduct a reasonable the billing entity generally passes the collection activity by a billing entity investigation into the legitimacy of the charge back to the vendor, who often once the charge has been disputed with charge, and transmit a written tries to collect on its own or through the any billing entity, regardless of whether explanation (including documentary services of some third party. Under the the two entities are the same. This evidence) that the charge is indeed valid original Rule, only one billing entity means that, where there are multiple (i.e., that ‘‘no billing error’’ occurred). was obligated to comply with the billing entities, an entity should not The effect of this change will be to dispute resolution provisions of the attempt to collect a charge before clarify a billing entity’s obligations Rule. This meant that these secondary verifying with the other entities that, if under the Rule. collection efforts by later billing entities a billing error notice has been sent by Finally, the proposed Rule specifies were not subject to the Rule’s dispute the consumer, a reasonable investigation that a reasonable investigation and resolution process—the consumer who of the charge has been conducted.278 If written explanation address every has raised a billing dispute may such verification is not possible, a relevant billing error, and ‘‘address with continue to be pursued for collection, billing entity should not engage in particularity’’ the facts asserted by the but never have the right to receive secondary collection activities unless it customer in the billing error notice. evidence that a valid debt was owed.276 first conducts the reasonable These revisions are designed to clarify In order to address this problem, the investigation of the validity of the that billing entities must do more than Commission proposes a modification of charge, and provides the written merely send the customer a non- responsive form letter to reply to a former Section 308.7(o). Proposed explanation to the consumer in billing error notice. A response to a Section 308.20(n)(2) specifies that, once accordance with the 308.20(c)(2) of the billing error notice must provide a billing entity has forgiven a disputed proposed Rule. Scope of ‘‘reasonable investigation.’’ evidence to the customer that the charge telephone-billed purchase charge, no The Commission proposes modifying is valid (i.e., that ‘‘no billing error’’ billing entity may attempt to sustain original Section 308.7(d)(2) to remedy a occurred). The statement cannot be sent charges for a telephone-billed purchase somewhat awkward requirement of the to a customer automatically or by rote— unless a reasonable investigation has original Rule. Under this section, a it must be preceded by a bona fide been conducted and the consumer has billing entity that received a billing investigation to gather the information received a written explanation of the error notice may either (i) correct the showing the validity of the charge. charges and evidence of the debt. The error and credit the customer’s account, Under the proposed Rule, this proposed revision brings within the or (ii) conduct a reasonable investigation, where necessary, should scope of the provision those situations investigation of the legitimacy of the include contacting the customer for involving multiple billing entities when charge, and transmit an explanation to further details in addition to contacting a vendor (or its agent) attempts to the customer setting forth the reasons the vendor, service bureau, or providing collect after a LEC has forgiven a charge why the billing entity has determined carrier. without providing any explanation. that no billing error has occurred ‘‘or Limitation on the rebuttable The proposed revisions will prevent that a different billing error occurred presumption created by documentary consumers from being subjected to from that asserted’’ by the customer. records. The proposed Rule also amends secondary collection efforts without Under a literal reading, this creates the the footnote previously found in Section ever receiving any explanation or proof bizarre result that a billing entity 308.7(d)(2)(ii), now Section that the charges are valid. Although the conducting a reasonable investigation 308.20(c)(2)(ii) of the proposed Rule. proposal goes marginally further than would be required to articulate to a The original footnote established a the analogous requirements set out in customer that a billing error did occur, rebuttable presumption that goods or TILA and FCBA, the Commission but the billing entity would not be services were actually delivered if the believes the revisions are appropriate. In required to correct the error and credit billing entity produced documents several recent cases, the Commission the customer’s account. This provision showing the date on, and place to, has addressed the issue of vendors or could be read to require the customer to which the goods or services were billing entities attempting to collect once again transmit a billing error notice transmitted or delivered (e.g., an ANI charges from a consumer without specifically listing the error cited by the record). The Commission is aware that, providing any evidence that those billing entity, and then wait for the in many instances, vendors are not charges were valid, other than the fact billing entity to correct the error and allowing consumers the opportunity to that the charges purportedly were credit the account. In revising this rebut this presumption. If a consumer accessed or received on the consumer’s Section, the Commission intends to provides sufficient evidence to rebut the telephone line.277 make it clear that these additional steps presumption that the provider’s ANI are not required. records are valid, however, then the 276 This situation should be compared to the Under the proposed Rule, a billing presumption must fall. The proposed protections provided under the Fair Debt Collection entity is not obligated to tell the Rule modifies the footnote to make this Practices Act (‘‘FDCPA’’), 15 U.S.C. 1692 et seq., to customer exactly what billing error did clear. a consumer who disputes a debt. Under the FDCPA, Additionally, the footnote lists a once the consumer notifies the debt collector that or did not occur. Instead, under the debt is disputed, the debt collector must cease proposed Section 308.20(c)(2), in specific method by which consumers attempting to collect the debt until the debt response to a billing error notice, a may rebut the presumption of ANI collector obtains verification of the debt and sends billing entity may either (i) correct any validity: a declaration signed under a copy of the verification to the consumer. 15 U.S.C. penalty of perjury.279 For example, if a 1692g. billing error and credit the customer’s 277 In these cases, the Commission made clear consumer disputes a charge for a that it is deceptive and unfair to misrepresent that 278 The proposed Rule should ensure that such a consumer is obligated to pay for services, when verification is possible. Proposed Section 279 This proposed provision is comparable to the that consumer did not access or purchase those 308.20(c)(3)(i) requires the billing entity that steps a card issuer may take in the credit card services or was not a party to any purported handled the initial dispute to ‘‘notify the context while conducting a reasonable investigation agreement to purchase such services. Hold Billing appropriate providing carrier, vendor, or service of a charge disputed on the basis of unauthorized Services; International Telemedia Associates; and bureau as applicable’’ of a decision to forgive a use. 12 CFR Part 226, Supplement 1, section 12(b)– Interactive Audiotext Services. disputed charge. (3). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58553 telephone-billed purchase on the ‘‘chargebacks came back that were a of a particular charge. In the absence of ground that a particular phone call was year, year and a half, and two years a formal notice of a billing error from not made from his or her phone, and the old.’’ 281 the consumer explaining the reason for billing entity submits ANI records In order to address this problem, the non-payment, the LEC has no way to showing that a call was placed to the Commission has proposed several know whether payment is withheld disputed number from the consumer’s modifications to Section 308.7 of the because of a disputed charge, and thus telephone number on the date and at the original Rule (now proposed Section continues to attempt to collect the debt. time indicated, a rebuttable 308.20). First, in proposed Section Apparently, after a lengthy period of presumption is raised that the charge is 308.20(c)(3), the time period within time, the LEC may determine the debt valid. However, the consumer can rebut which a billing entity must conduct an to be uncollectible and charge the debt this presumption by submitting a investigation and either sustain or back to the vendor. In these instances, declaration, signed under penalty of forgive a charge has been shortened the vendor generally learns of the perjury, that the documentary from 90 to 60 days. In the event that the disputed charge only after it is too late information upon which the bill was LEC forgives the charge or is otherwise to undertake its own collection effort. based is not correct and that the call unable to collect it, the shorter time To remedy this situation, the could not have been made from the frame will enable vendors to receive Commission has proposed adding a new consumer’s phone. Although this more expeditiously the information they subsection 308.20(n)(4) requiring that a declaration can rebut the presumption need to initiate collection on their own. billing entity (usually the LEC) shall of validity of ANI, it may not be enough Second, in proposed Section notify the vendor or service bureau of an to prevent collection activity in the face 308.20(c)(3)(i), the Commission has unpaid charge no later than 120 days of more reliable evidence—i.e., evidence added a new requirement that, within after the original bill was sent to the showing more than merely ‘‘the date on, 30 days of determining not to sustain a consumer, if a consumer has neither and the place to, which the goods or charge, a billing entity (usually a LEC) paid such charges nor initiated a billing services were transmitted or delivered.’’ must provide sufficient information to error review within the allotted 60-day If the vendor or service bureau can show the vendor or service bureau to allow it time period. The billing entity must additional reliable evidence of delivery to identify the customer account at provide the vendor or service bureau of the goods or services (such as a true issue. This provision addresses with notice of the failure to pay, the and accurate tape recording, a signature, industry’s complaint that when the amount of the unpaid charge, and or other evidence that the goods or LECs forgive charges, they do not sufficient information to identify the services were actually delivered), then, provide the vendors and service bureaus customer’s account. depending on the facts of a given with the timely information needed to transaction, a billing entity’s initiate collection on their own.282 This Revision of the Notice of Billing Error investigation might still conclude that provision should be viewed in Rights to simplify the language and to no billing error occurred. conjunction with the new language clarify the meaning of the 60-day time The revised footnote further adds that requiring that a ‘‘reasonable limit by which the consumer must give the Commission can rebut the investigation’’ be conducted before a notice. A number of commenters asked presumption with evidence indicating vendor or its agent can engage in the Commission to revise the wording of that, in numerous instances, the goods secondary collection activities to collect the Notice of Billing Error Rights set out or services were not actually transmitted an alleged debt. The Commission in Section 308.7(n) of the original Rule or delivered. It is not necessary to show believes that consumers are entitled to to enhance consumers’ understanding that each and every consumer did not an investigation and supporting that they have the obligation to pay for receive the goods or services, but only evidence that a debt is valid. However, any valid pay-per-call charges and that that numerous consumers did not the Commission also believes that failing to pay valid charges may subject receive the goods or services. For consumers must be held accountable for them to debt collection efforts.284 Some example, the Commission may the valid debts they incur and that commenters maintained that consumers introduce evidence showing that, while industry is entitled to attempt to collect have abused their rights under the Rule ANI records may indicate that calls such debts. Given this balance of to dispute billing errors and have were placed from the phones of interests, it seems fair to allow vendors refused to pay valid charges.285 particular consumers, in fact, the calls and service bureaus the information The Commission agrees that it is could not have been placed from those they need to attempt their own important for consumers to understand phones because the phones had a 900- collections, and to require that both their rights and their obligations number block in place, or there was information be provided in a timely other compelling evidence that no one when they are billed for pay-per-call manner. services or telephone-billed purchases. could have made the call from within Finally, several commenters asked In order to further consumers’ the home. that the Commission take steps to understanding of their rights and New time limits within which the remedy the current LEC practice of obligations, the proposed Rule investigation must be conducted; writing off a charge after a lengthy simplifies the requirements regarding modification of other time limits period of attempting to collect.283 In the notice of customers’ billing rights. established in the original Rule. One of some instances, a consumer may fail to Under Section 308.20(m) of the the major complaints from industry provide notice of a billing error that the proposed Rule, such a notice of billing members has been the length of time it LEC can investigate; instead, the rights must be provided with each takes to learn from the LECs about consumer, without explanation, simply billing statement that contains charges chargebacks or refunds the LECs have withholds from his payment the amount granted.280 TSIA maintained that for a pay-per-call service or for a businesses had been destroyed when 281 Tr. at 25. telephone-billed purchase; the annual 282 PILGRIM—FCC comment at 6–7, 9; 280 See, e.g., GORDON at 2; ISA at 10–12, 17–18; PILGRIM—FCC Reply comments at 20. 284 GORDON at 2–3; ISA at 6–9; PMAA at 3, 13; PMAA at 13; TPI at 5, 6; TSIA at 10–12; Tr. at 20, 283 GORDON at 2; TSIA at 10–11; Tr. at 25, 43– TSIA at 12–13; Tr. at 27–28, 68, 126–45. 25, 43–44, 68, 224–27. 44, 63–64. 285 AT&T at 20–21; Tr. at 8, 25–26, 128. 58554 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules notice option is no longer permitted.286 providing carriers, and billing entities. entity designated to receive and respond If each billing statement that contains Under the original Rule, billing entities, to billing error notices and how to charges for a telephone-billed purchase providing carriers, and vendors are all contact that entity. For example, if the also contains a notice of billing error directly liable for compliance with the customer must submit written notice of rights, customers will be assured of requirements of Section 308.20. Where a billing error, the disclosure must timely notice of their rights and appropriate, the proposed Rule adds include the mailing address to which obligations in the event that a billing ‘service bureau’ to the parties who will the notice should be sent; if the dispute arises. The proposed Rule be held directly liable for compliance customer may submit notice orally, the retains the requirements that the notice with the provisions of this section. disclosure must contain a local or toll- set forth the procedure the customer Thus, under the proposed Rule, service free number that is readily available for must follow to notify the billing entity bureaus are directly liable for customers to call in the event of a of a billing error, that the notice must compliance with the following billing error. The billing entity and disclose the customer’s right to provisions of Section 308.20: 308.20(f)— vendor may agree to a single telephone withhold payment of any disputed Limitation on collection action; number to satisfy both the requirements amount, and that any action to collect 308.20(g)—Prohibition on charges for of this section as well as the that amount will be suspended pending initiating billing review; and requirements of proposed Section the billing review. The proposed Rule 308.20(h)(1)—Prohibition on adverse 308.18(d). would add the disclosure that, in order credit reports. This section is intended to ensure that to be guaranteed the protections under The proposed Rule extends direct consumers are able to reach a the dispute resolution provisions of the liability to service bureaus in these responsible party when they submit a Rule, the consumer must give notice of instances because the service bureau billing error notice, and has been a billing error dispute within 60 days. often is the entity handling the dispute included to address the problems Two commenters suggested language resolution process, as well as the party consumers reportedly encounter when for the notice that would advise the with whom the billing entity has a they attempt to assert a billing error. consumer of the consequences that may contract. Additionally, as aggregators or Consumer groups at the workshop occur if the consumer fails to pay a as entities developing ‘‘turn-key’’ pay- described the frustration consumers valid charge, even if the charge was per-call service operations, service often feel when they attempt to inquire forgiven by the LEC.287 In the original bureaus are often in the best position to about charges on their telephone bills. Rule, the Commission declined to make sure that the services are offered Instead of reaching a helpful customer mandate specific language for the Notice and provided in a non-deceptive service representative, they often find of Billing Error Rights in order to give manner that complies with the Rule. themselves navigating a maze to find the the billing entity the flexibility to Clarification of the forfeiture of right entity to whom the billing error should fashion its own notice and to arrange to collect. Section 308.7(j) of the original be reported. Consumers reportedly get and disclose the material information in Rule provided that any billing entity, passed from one entity to another, are a more cost-effective manner.288 The vendor, or service bureau that failed to placed on hold for long periods of time, Commission believes this approach is comply with the requirements of the or the telephone numbers they are told still appropriate. As the Commission dispute resolution section would forfeit to call are disconnected, perpetually explained in the Statement of Basis and the right to collect any amount the busy, or are not answered at all.291 Purpose to the original Rule, the Rule customer has disputed in a notice of a Under the proposed Rule, these types of does not preclude a billing entity from billing error. Proposed Section 308.20(i) practices will constitute a violation of including additional information on the adds language to clarify that this Section 308.20(b). notice, as long as it does not confuse or forfeiture relates only to charges that are Clarification that all billing entities mislead the consumer or obscure or legitimate charges that the entity would must comply with the Rule’s detract from the required disclosures, otherwise be entitled to collect. If an requirements. Where a telephone-billed which must appear separately and entity does not comply with proposed purchase involves more than one billing above any other information.289 The Section 308.20, it must forgive even entity, section 308.20(n)(1) of the Commission still believes that vendors, legitimate charges. However, this proposed Rule requires them to agree service bureaus, and billing entities are provision does not limit liability to which one of them will be responsible in the best position to negotiate among provide refunds or credits for charges for receiving and responding to billing themselves to provide any additional that are in error, nor does it affect errors. Furthermore, proposed Section information to consumers regarding liability for civil penalties for violations 308.20(b) requires that this designation their liability for telephone-billed of proposed Section 308.20, or for be clearly and conspicuously disclosed purchases. Several workshop violations of other provisions of the on the billing statement. This will participants agreed that the Rule need Rule. ensure that unscrupulous billing entities not be changed to accommodate specific Requirement for identifying will not pass responsibility from one to language, and that it would be sufficient information to be disclosed at time of another, leaving a consumer without an to provide additional sample language billing. Section 308.20(b) of the effective means of exercising his or her in the Commission’s Compliance proposed Rule clarifies and expands the dispute resolution rights. Furthermore, Guides.290 requirements in current section 308.7(c) the proposed Rule modifies the Direct liability under the dispute to disclose certain identifying language of Section 308.7(o)(2) of the resolution requirement extended to information to the customer on the original Rule, which allowed multiple service bureaus in addition to vendors, billing statement or in other material billing entities to agree among accompanying the billing statement. In themselves which billing entity was 286 The Commission is not aware of many addition to disclosing the method by responsible for compliance with the instances where the annual statement format was which the customer can provide a being used. Rule. The Commission believes that all 287 ISA at 7–9; GORDON at 2–3. billing error notice (required by the billing entities are under an obligation 288 58 FR 42364, 42397 (August 9, 1993). current Rule), under the revised 289 58 FR 42364, 42398 (August 9, 1993). provision, the billing statement must 291 ISA at A4; NAAG at 12–13; Tr. at 114–16, 290 Tr. at 141–42. also disclose the name of the billing 173–74, 262–65. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58555 to comply with the proposed Rule’s 308.22 tracks the language and January 8, 1999. Comments submitted requirements, regardless of which entity procedures set out in Section 310.7 of will be available for public inspection in is designated to give disclosures and the Telemarketing Sales Rule. accordance with the Freedom of respond to billing error notices. Thus, Section 308.22 also closely tracks the Information Act (5 U.S.C. 552) and each billing entity that attempts to statutory language of TDDRA which Commission Rules of Practice, on sustain a charge for a telephone-billed provided for such State action.292 Since normal business days between the hours purchase must comply with the Section 5712 of TDDRA gives States the of 9:00 a.m. and 5 p.m. at the Public requirement that it conduct a reasonable authority to enforce only the rules Reference Section, Room 130, Federal investigation and provide proof of the promulgated under 15 U.S.C. 5711 (i.e., Trade Commission, Sixth Street and debt before collection attempts are Title II of TDDRA), the proposed Rule Pennsylvania Avenue, N.W., made. delineates those provisions that are not Washington, DC 20580. Comments Deceptive statements to billing enforceable by the States because they submitted in electronic form will be entities by vendors, service bureaus, and have been proposed under the made available on the Commission’s providing carriers. Section 308.20(p) of rulemaking authority granted in other web site at www.ftc.gov. the proposed Rule specifies that it is a sections of TDDRA. Thus, it specifies deceptive act or practice for any vendor, that States can bring actions only where Section E. Public Workshop service bureau, or providing carrier to a violation of the Rule relates to the The FTC staff will conduct a public provide false or misleading information provision of pay-per-call services, since workshop to discuss the written to a billing entity conducting an this is the subject matter of the comments received in response to the investigation of a disputed telephone- Commission’s rulemaking authority Federal Register notice. The purpose of billed purchase charge. One of the under Title II of TDDRA.293 In addition, the workshop is to afford Commission cornerstones of the Rule is that once a proposed Section 308.22(a) specifies staff and interested parties a further consumer disputes the validity of a that States may not enforce Section opportunity to discuss issues raised by charge, a billing entity cannot attempt to 308.20, because that section is the proposal and in the comments, and, collect the disputed charge until an promulgated under the rulemaking in particular, to examine publicly any investigation of the validity of the authority granted under Title III of areas of significant controversy or charge has been conducted and the TDDRA.294 divergent opinions that are raised in the consumer has been provided Rulemaking Review Requirement written comments. The workshop is not documentary evidence of the charge, intended to achieve a consensus among and an explanation of why the The original Rule required that a rule participants or between participants and investigating billing entity has review proceeding be commenced Commission staff with respect to any determined that no billing error has within four years of the effective date of issue raised in the comments. occurred. The proposed Rule provides the Rule. The proposed Rule does not Commission staff will consider the that, in conducting the investigation, the have an equivalent provision. The views and suggestions made during the billing entity should contact (where Commission has a policy of reviewing workshop, in conjunction with the appropriate) the vendor, service bureau, all of its rules and guides on a periodic written comments, in formulating its or providing carrier. False or misleading basis to ensure that they continue to final recommendation to the statements to the investigating billing meet the goals and provide the Commission regarding amendment of entity by the vendor, service bureau, or protections that were intended when the 900–Number Rule. providing carrier would undermine the they were promulgated. This periodic Commission staff will select a limited investigation of a disputed charge, and review also examines the economic number of parties from among those would be likely to mislead reasonable costs and benefits of the particular rule who submit written comments, to consumers into paying money that is or guide under review. The Commission represent the significant interests not actually owed. The proposed Rule believes that this periodic review affected by the issues raised in the will prohibit such false or misleading should be sufficient for any final Rule, notice. These parties will participate in statements. and that it is not necessary to include an open discussion of the issues, a specific deadline within the text of the Subpart D—General Provisions including asking and answering Rule. questions based on their respective Section 308.22 Actions by States Section D. Invitation To Comment comments. In addition, the workshop TDDRA grants the States authority to All persons are hereby given notice of will be open to the general public. The enforce the rules that the Commission the opportunity to submit written data, discussion will be transcribed and the promulgates pursuant to 15 U.S.C. 5711. views, facts, and arguments concerning transcription placed on the public The original Rule did not contain a the proposed changes to the record. provision that detailed the procedures Commission’s 900-Number Rule. The To the extent possible, Commission the States should follow in bringing Commission invites written comments staff will select parties to represent the actions under the Rule. The to assist it in ascertaining the facts following interests: advertisers, billing Commission’s enforcement experience necessary to reach a determination as to entities, vendors, service bureaus, local with its Telemarketing Sales Rule, 16 whether to adopt as final the proposed exchange carriers, long-distance CFR Part 310, indicates that such changes to the Rule. Written comments carriers, consumer groups, federal and procedures are helpful in promoting must be submitted to the Office of the State law enforcement and regulatory consistency and in coordinating law Secretary, Room 159, Federal Trade authorities; and any other interests that enforcement activity in order to Commission, Sixth Street and Commission staff may identify and maximize the impact of such actions. Pennsylvania Avenue, N.W., deem appropriate for representation. Therefore, the proposed Rule adds Washington, DC 20580, on or before Parties who represent the above- Section 308.22, which outlines the referenced interests will be selected on procedures that State law enforcement 292 15 U.S.C. 5712. the basis of the following criteria: officials should use in bringing actions 293 15 U.S.C. 5711. 1. The party submits a written under the Rule. The language in Section 294 15 U.S.C. 5721—5724. comment during the comment period. 58556 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

2. During the comment period the 3520, the FTC has current approval from that the additional burden associated party notifies Commission staff of its the Office of Management and Budget with the proposed change will be 12,240 interest in participating in the (OMB) for 3,241,200 total burden hours hours, assuming one hour for each workshop. associated with certain reporting and disclosure. The Commission is also 3. The party’s participation would disclosure requirements under the 900– proposing that a new disclosure (i.e., a promote a balance of interests being Number Rule (control number 3084– signal indicating the end of free time represented at the workshop. 0102, which expires on December 31, typically used to market pay-per-call 4. The party’s participation would 1999). The Commission is seeking to services) be included in proposed Rule promote the consideration and extend this approval for the existing Section 308.7(b). Based on an discussion of a variety of issues raised Rule requirements and to obtain such assumption that 25 percent of the in this notice. approval for certain additional or 67,200 pay-per-call services will be 5. The party has expertise in activities amended disclosure requirements being required to include the new signal, the affected by the issues raised in this proposed by the Commission. additional burden associated with this notice. The FTC has previously estimated proposed change is calculated to be 6. The number of parties selected will that approximately 25 common carriers 16,800 hours, again assuming one new not be so large as to inhibit effective routinely maintain certain business burden hour for each disclosure. discussion among them. records and make them available to the In addition, the Commission has The workshop will be held at the Commission under the Rule, at an previously estimated that approximately Federal Trade Commission, 6th Street average annual burden of 5 hours per 60,000 pay-per-call services are required and Pennsylvania Avenue, NW., submission, for a total reporting burden to make disclosures in the preamble to Washington, DC 20580, on February 25 of 125 hours. Based on a 12 percent the pay-per-call service, at an average and 26, 1999. Prior to the workshop, estimated growth of the industry since burden of 10 hours for each preamble, parties selected will be provided with 1995 (when the last burden was resulting in a total burden estimate of copies of the comments from all other calculated), the Commission estimates 600,000 hours. Based on the estimated participants selected to participate in that the current burden would be 140 growth of the industry, the Commission the workshop. hours. The Commission is not proposing now calculates the current burden to be Section F. Communications by Outside to change this reporting requirement in 672,000 hours. The Commission’s Parties to Commissioners or Their a manner that would increase the proposal to amend the preamble Advisors compliance burden. requirements of the Rule (proposed The Rule further requires that Section 308.9(a)(2)(iii)(B)) would further Pursuant to Commission Rule advertisements for pay-per-call services require the preamble to disclose the cost 1.26(b)(5), communications with respect contain certain disclosures mandated by of each portion of a telephone call to a to the merits of this proceeding from TDDRA as to the cost of the telephone pay-per-call service billed on a variable any outside party to any Commissioner call. The Commission has previously time rate basis. Assuming that 30 or Commissioner advisor during the estimated that these requirements apply percent of the 67,200 pay-per-call course of this rulemaking shall be to approximately 20,000 vendors, who services would be required to make the subject to the following treatment. must make additional disclosures if the new disclosure in the preamble, the Written communications, including advertisement is directed to individuals Commission estimates that the new written communications from members under 18 (50 percent of the ads) or burden associated with the proposed of Congress, shall be forwarded relates to pay-per-call services for change would be 20,160 hours, if each promptly to the Secretary for placement sweepstakes or information on federal new disclosure requires one additional on the public record. Oral programs (30 percent of the ads). The hour of compliance. communications, not including oral Commission has estimated that each The Commission’s Rule also requires communications from members of disclosure mandated by the Rule, that vendors ensure that certain Congress, are permitted only when such whether cost or otherwise, requires disclosures appear on each billing oral communications are transcribed approximately one hour of compliance statement that contains a charge for a verbatim or summarized at the time. Based on three advertisements per call to a pay-per-call service. Because discretion of the Commissioner or vendor, or a total of 60,000 ads, 80 these disclosures appear on telephone Commissioner advisor to whom such percent of which would require a bills already generated by the local oral communications are made and are disclosure in addition to the cost telephone companies, and because the promptly placed on the public record, disclosure, the Commission has carriers are already subject to nearly together with any written estimated that approximately 110,000 identical requirements pursuant to the communications and summaries of any burden hours are needed for vendors to FCC’s rules, the Commission estimated oral communications relating to such comply with these requirements. Based that the burden to comply would be oral communications. Oral on the estimated growth of the industry, minimal. At most, the only burden on communications from members of the Commission now calculates the the vendor may be to conduct spot Congress shall be transcribed or current burden to be 123,000 hours. The checks of telephone bills to ensure that summarized at the discretion of the Commission is proposing to amend the the charges are displayed in the manner Commissioner or Commissioner advisor advertising disclosure section of the required by the Rule. Staff estimated to whom such oral communications are Rule (proposed Section that only 10 percent of the 20,000 made and promptly placed on the 308.4(a)(1)(iii)(B)) to require that vendors would monitor billing public record, together with any written advertisements for pay-per-call services statements in this manner and that it communications or summaries of any billed on a variable time rate basis would take 12 hours each year to oral communications relating to such disclose the cost of each portion of the conduct such checks, for a total of oral communications. call. Assuming that 20 percent of the 24,000 burden hours. Based on the 67,200 (adjusted from 60,000 for 12 estimated growth of the industry, the Section G. Paperwork Reduction Act percent growth) pay-per-call services Commission calculates the current Pursuant to the Paperwork Reduction will be required to make the new burden to be 26,880 hours. The Act (PRA), as amended, 44 U.S.C. 3510– disclosure, the Commission estimates Commission is not proposing to amend Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58557 this disclosure requirement section in a entity designated to receive and respond requests public comment on the effect of way that will increase the burden of to alleged billing errors). Assuming the proposed Rule amendments on compliance. again that 5 percent of the 56,000,000 costs, profitability, competitiveness, and The Commission’s Rule imposes calls (adjusted for 12 percent growth) employment on small entities. After certain disclosure requirements relating require billing entities to respond to considering such comments, if any, the to billing and dispute resolution. In billing errors, the Commission estimates Commission will determine whether particular, the Rule requires billing that the new burden associated with preparation of a final regulatory entities to notify pay-per-call service these two new disclosure requirements flexibility analysis (pursuant to 5 U.S.C. customers in writing of their rights and will be 1,400,000 hours, based on an 604) is required. obligations with respect to pay-per-call additional 1⁄2 hour of compliance time service charges. The FTC has previously required for both disclosures. Section I. Questions for Comment on estimated that it would take 7,000 hours Based on the above figures, the total the Proposed Rule for billing entities to provide such PRA burden under the existing The Commission seeks comment on notice to customers, based on requirements of the Rule was estimated various aspects of the proposed Rule. approximately 1,400 billing entities to be approximately 3,241,125 hours, Without limiting the scope of issues on spending 5 hours to review, revise, and comprising 125 hours for reporting which it seeks comment, the provide the disclosures annually. Based requirements, with the remainder Commission is particularly interested in on the estimated growth of the industry, attributable to requirements for receiving comments on the questions the Commission estimates the current disclosures in advertising (110,000), that follow. In responding to these burden to be 7,840 hours. Proposed Rule preamble (600,000), billing statement questions, include detailed, factual Section 308.18(m)(1), if adopted, would disclosures (24,000), and billing dispute supporting information whenever make this requirement mandatory with resolution (2,500,000 and 7,000). Based possible. each billing notice, rather than on estimated growth of the industry, the annually. There should be no additional Commission calculates the current General Questions burden hours associated with this burden to be 3,630,060 hours. The Please provide comment, including proposed change because most, if not Commission calculates that the new relevant data, statistics, consumer all, entities already disclose customer burden associated with all of the complaint information, or any other rights and obligations in each billing proposed changes described above will evidence, on each different proposed statement that contains such charges. be 1,499,200 additional burden hours change to the Rule. Regarding each The Commission is also proposing to for industry to comply with the proposed modification commented on, amend paragraphs (i) and (j) of proposed proposed Rule. Of course, the please include answers to the following Section 308.2 of the Rule to require Commission seeks comment to questions: certain disclosures to customers determine whether its calculation of (a) What is the effect (including any regarding the personal identification burden hours is accurate. benefits and costs), if any, on numbers requested by and issued to Section H. Regulatory Flexibility Act consumers? such customers, and the material terms (b) What is the impact (including any and conditions governing the use of The provision of the Regulatory benefits and costs), if any, on individual such numbers. Assuming that 50,000 Flexibility Act requiring an initial firms that must comply with the Rule? different audiotext services are provided regulatory flexibility analysis (5 U.S.C. (c) What is the impact (including any via toll-free numbers and will be 603) does not apply because it is benefits and costs), if any, on industry? required to comply with these proposed believed that these Rule amendments, if (d) What changes, if any, should be new disclosure requirements, the adopted, will not have a significant made to the proposed Rule to minimize Commission estimates that the economic impact on a substantial any cost to industry or consumers? additional burden will be 50,000 hours, number of small entities (5 U.S.C. 605). (e) How would those changes affect based on 1 hour per service. This notice also serves as certification to the benefits that might be provided by The Commission has separately the Small Business Administration of the proposed Rule to consumers or estimated that the compliance burden that determination. industry? associated with the existing dispute It appears that some vendors may be (f) How would the proposed Rule resolution requirements of the Rule is, small entities, but the Commission, on affect small business entities with on average, about one hour per each the basis of information currently respect to costs, profitability, billing error, and that approximately 5 available to its staff, does not believe the competitiveness, and employment? percent of the estimated 50,000,000 number of such entities is clearly calls made to pay-per-call services each substantial when compared to the Questions on Proposed Specific year would involve such a billing error, number and size of other businesses Changes for a total burden of 2,500,000 hours. covered by the Rule (e.g., service In response to each of the following Based on the estimated growth of the bureaus, common carriers, and billing questions, please provide: (1) detailed industry, the Commission calculates the entities). Furthermore, to the extent that comment, including data, statistics, current burden to be 2,800,000 hours. the Rule’s requirements are expressly consumer complaint information and The Commission proposes to expand mandated by TDDRA, the Commission other evidence, regarding the problem the disclosure requirements that apply has no discretion to adopt alternative referred to in the question; (2) comment to billing entities in the resolution of provisions that would reduce any as to whether the proposed changes do billing disputes, as set forth in the significant impact that such or do not provide an adequate solution proposed amendments to proposed requirements might have on small to the problems they were intended to Sections 308.18(n)(2) (notice to entities, as the Commission noted when address; and (3) suggestions for customer when attempting to collect the Rule was originally promulgated. additional changes that might better charge that was forgiven by another Nonetheless, to ensure that no maximize consumer protections or billing entity), and 308.18(n)(4) (notice significant economic impact on a minimize the burden on industry. to vendor or service bureau of certain substantial number of small entities is 1. Unauthorized charges. Viewed customer information by the billing overlooked, the Commission hereby together, do the new billing error and 58558 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules express authorization sections a vendor? If not, what is a more to reach the entity whose telephone (proposed 308.2(b) and 308.17) of the appropriate method of determining number is listed on the phone bill for proposed Rule adequately address the whether remuneration has been billing inquiries? Does the provision problem of consumers being charged for provided to a vendor? Are there other adequately address the problem that unauthorized telephone-billed circumstances under which payment consumers often cannot reach the entity purchases? Is the ‘‘knew or should have should be presumed? with the authority to provide refunds or known’’ standard for vendors, service 8. Misrepresentation of cost. Does the credits? bureaus, and billing entities sufficient to proposed provision governing 15. Service bureau liability. What address the deceptive practices that the misrepresentation of cost (proposed effect will the additional direct liability Rule intends to prevent? 308.6) adequately address the problem of service bureaus pursuant to proposed 2. PIN number. Does the requirement of consumers being misled regarding the 308.17 and 308.20 have on industry? that a PIN, as defined in proposed cost of services? Will it increase the level of industry’s 308.2(i), be used in connection with a 9. Beepers and pagers. Is there any accountability to consumers? What presubscription agreement adequately non-deceptive way in which beepers or effect will it have on cramming? address the problem of controlling pagers are used or could be used to 16. Billing entity liability. What effect access to audiotext services provided solicit calls to a pay-per-call service? Is will the additional liability of billing through toll-free numbers? the restriction in proposed 308.7 entities pursuant to proposed 308.17 3. Presubscription agreement. Do the appropriate? Is it possible to make and 308.20 have on industry? Will it proposed changes to the definition of adequate disclosures in beeper or pager increase the level of industry’s ‘‘presubscription agreement’’(proposed solicitations? Would it be appropriate to accountability to consumers? What 308.2(j)), together with the provision prohibit these types of solicitations effect will it have on cramming? relating to prohibitions concerning toll- altogether? 17. Information necessary to collect free numbers (proposed 308.13), 10. Nominal cost calls. Do the data debts. Does the proposed Rule adequately address the problem of suggest that $3.00 is an appropriate adequately address in proposed consumers receiving charges on their threshold for designation of ‘‘nominal 308.20(n)(4) the need of vendors and telephone bills under presubscription cost calls’’ (proposed 308.9) for which service bureaus to obtain sufficient agreements to which they were not a no preamble is necessary? If not, what information from the LECs to continue party? ‘‘nominal cost’’ threshold does the data collection activities against customers 4. Service bureau. The proposed support? Should the ‘‘nominal cost’’ who refuse to pay valid charges? definition of ‘‘service bureau’’ (proposed figure be adjusted for inflation? 18. Reporting times. If the period of 308.2(n)) is designed to include billing 11. Fractional minute billing. Under time that LECs or other billing entities aggregators, and to prevent an entity what circumstances are have to respond to a billing error notice from escaping liability under the Rule telecommunications calls or services is shortened from 90 to 60 days, what by hiding behind ‘‘common carrier‘‘ currently billed in increments of less effect, if any, would this have on billing status. Does the revised definition than one minute? In what increments entities? Would this impose additional include the appropriate entities? Are are these calls or services billed? What costs? Do the changes in the proposed there other entities that should be billing increments are technologically 308.20 of the Rule that shorten the times included? feasible? What costs, if any, would be by which the LEC must provide 5. Pay-per-call service. Does the associated with requiring pay-per-call information to the vendor or service proposed definition of ‘‘pay-per-call services to bill in increments of less bureau sufficiently expedite the process service’’(proposed 308.2(g)) rely on the than one minute? so that vendors or service bureaus will appropriate criteria to identify a pay- 12. Toll charges. Does the proposal to be able to pursue collection of valid per-call service? Are the exemptions to prohibit audiotext services from being debts in a timely manner? Are these the proposed definition of pay-per-call billed as toll charges (proposed 308.12) deadlines feasible? service appropriate? Are there adequately address the problem of 19. Chargebacks. Are the proposed additional exemptions that should be consumers being charged for audiotext changes to the dispute resolution included? services in a manner that does not section the most cost effective and 6. De minimis threshold for pay-per- provide them with all of the TDDRA- appropriate ways to deal with industry call services. Does the proposed $.05 per mandated protections? Are there other, concerns regarding the chargeback minute or $.50 per call de minimis less restrictive, means to address the process? threshold strike the appropriate balance problem? 20. Reasonable investigation. Does the between services that should be 13. Express authorization. What costs proposed Rule adequately address in considered pay-per-call and services would be associated with obtaining proposed 308.20 the problem of that should not be considered pay-per- express authorization from consumers consumers becoming the target for a call? Should the proposed threshold be for non-blockable telephone-billed collection action without ever receiving higher or lower? Will some vendors be purchases (proposed 308.17)? Are there an explanation or evidence that the required to undertake additional record methods of obtaining express alleged debt is in fact valid? keeping in order to demonstrate their authorization that would impose lower 21. Evidence of debt. What evidence exemption? Is there a more efficient costs than those methods described in (other than ANI information) is alternative to the de minimis approach? the Notice? Is the proposed Rule currently created or maintained that 7. Rebuttable presumption of payment sufficiently flexible to accommodate would show the delivery of telephone- to a vendor. In the absence of direct technological developments that may billed purchases? If no such evidence is evidence of payment, is a rebuttable make it easier to obtain express created or maintained, what would be presumption the best method of authorization? the costs, if any, associated with determining whether remuneration has 14. Billing statement disclosures. Do creating and maintaining such evidence. been provided to a vendor? If so, has the the modifications regarding the What would be the benefits? Commission described the appropriate disclosures on billing statements 22. TDDRA blocking. What records do circumstances under which it should (proposed 308.18) adequately address LECs maintain with respect to 900- presume that payment has been made to the problem of consumers being unable number blocking? Do these records Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58559 indicate the date a consumer-requested PART 308ÐRULE CONCERNING PAY- (2) A reflection on a billing statement block became effective? What measures PER-CALL SERVICES AND OTHER of a telephone-billed purchase for which do LECs take to ensure that blocks are TELEPHONE-BILLED PURCHASES the customer requests additional not turned off by someone other than clarification, including documentary the subscriber? Do LECs make blocking Subpart AÐScope and Definitions evidence thereof. information available to billing entities Sec. (3) A reflection on a billing statement who are conducting ‘‘reasonable 308.1 Scope of regulations in this part. of a telephone-billed purchase that was investigations’’ of disputed charges for 308.2 Definitions. not accepted by the customer or was not telephone-billed purchases? Should Subpart BÐPay-Per-Call Services provided to the customer in accordance LECs be required to do so? What would 308.3 General requirements for advertising with the stated terms of the transaction. be the costs and benefits associated with disclosures. (4) A reflection on a billing statement such a requirement? 308.4 Advertising disclosures. of a telephone-billed purchase for a call made to an 800, 888, 877, or other toll- 23. Applicability to third-party debt 308.5 Advertising to children prohibited. 308.6 Misrepresentation of cost prohibited. free telephone number. collectors. The proposed definition of 308.7 Other advertising restrictions. (5) The failure to reflect properly on ‘‘billing entity’’ does not include an 308.8 Special rule for infrequent a billing statement a payment made by exemption for third-party debt publications. the customer or a credit issued to the collectors attempting to collect debts for 308.9 Preamble message. customer with respect to a telephone- telephone-billed purchases. Should 308.10 Deceptive billing practices. billed purchase. there be such an exemption? What, if 308.11 Prohibition on services to children. (6) A computation error or similar 308.12 Prohibition concerning toll charges. any, costs or benefits would be error of an accounting nature on a associated with such an exemption? 308.13 Prohibitions concerning toll-free numbers. billing statement of a telephone-billed Questions Relating to the Paperwork 308.14 Monthly or other recurring charges. purchase. Reduction Act 308.15 Refunds to customers. (7) Failure to transmit a billing 308.16 Service bureau liability. statement for a telephone-billed The Commission solicits comments Subpart CÐPay-Per Call Services and Other purchase to a customer’s last known on the reporting and disclosure Telephone-Billed Purchases address if that address was furnished by the customer at least twenty (20) days requirements above to the extent that 308.17 Express authorization required. they constitute ‘‘collections of 308.18 Disclosure requirements for billing before the end of the billing cycle for information’’ within the meaning of the statements. which the statement was required. PRA. The Commission requests 308.19 Access to information. (8) A reflection on a billing statement comments that will enable it to: 308.20 Dispute resolution procedures. of a telephone-billed purchase identified in a manner that violates the 1. Evaluate whether the proposed Subpart DÐGeneral Provisions requirements of § 308.18. collections of information are necessary 308.21 Severability. (9) A reflection on a customer’s billing for the proper performance of the 308.22 Actions by States. statement of a charge incurred pursuant functions of the agency, including Authority: Pub. L. 102–556, 106 Stat. 4181 to a purported presubscription whether the information will have (15 U.S.C. 5701, et seq.); Sec. 701, Pub. L. agreement that does not meet the practical utility; 104–104, 110 Stat. 56 (1996). requirements of § 308.2(j). 2. Evaluate the accuracy of the (10) A reflection on a customer’s agency’s estimate of the burden of the Subpart AÐScope and Definitions billing statement of a telephone-billed proposed collections of information, § 308.1 Scope of regulations in this part. purchase not blockable pursuant to 47 including the validity of the U.S.C. 228(c) that was not expressly methodology and assumptions used; This Rule implements Titles II and III authorized by that customer. of the Telephone Disclosure and 3. Enhance the quality, utility, and (11) A reflection on a billing Dispute Resolution Act of 1992, in clarity of the information to be statement of a charge that is inconsistent relevant part at 15 U.S.C. 5711–14, collected; and with any blocking option chosen by a 5721–24, as amended by the customer pursuant to 47 U.S.C. 228(c). 4. Minimize the burden of the Telecommunications Act of 1996, Sec. (c) Bona fide educational service collections of information on those who 701, Pub. L. 104–104, 110 Stat. 56 means any pay-per-call service are to respond, including through the (1996). dedicated to providing information or use of appropriate automated, § 308.2 Definitions. instruction relating to education, electronic, mechanical, or other subjects of academic study, or other technological collection techniques or (a) Billing entity means any person related areas of school study. other forms of information technology who transmits a billing statement or any (d) Commission means the Federal (e.g., permitting electronic submission other statement of debt to a customer for Trade Commission. of responses). a telephone-billed purchase, or any (e) Customer means any person who person who assumes responsibility for Section J. Proposed Rule acquires or attempts to acquire goods or receiving and responding to billing error services through a telephone-billed List of Subjects in 16 CFR Part 308 complaints or inquiries. purchase, or who receives a billing (b) Billing error means any of the statement for a telephone-billed Advertising, 900 telephone numbers, following: purchase. Pay-per-call services, Telephone, (1) A reflection on a billing statement (f) Pay-per-call purchase means any Telephone-billed purchases, Toll-free of a telephone-billed purchase that was attempt to purchase, or any actual numbers, Trade practices. not made by the customer nor made purchase of pay-per-call services. Accordingly, it is proposed that part from the telephone of the customer who (g) Pay-per-call service means: 308 of title 16 of the Code of Federal was billed for the purchase or, if made, (1) Any service covered by the Regulations, be revised to read as was not in the amount reflected on such definition of ‘‘pay-per-call services’’ follows: statement. provided in Section 228(i) of the 58560 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

Communications Act of 1934, as practice otherwise precluded or limited credit or charge card is the sole method amended;1 or by regulations of the Federal used to pay for the charge. (2) Any service that provides, or that Communications Commission. (k) Program-length commercial means is purported to provide, audio (h) Person means any individual, any commercial or other advertisement information or audio entertainment, partnership, corporation, association or fifteen (15) minutes in length or longer including simultaneous voice unincorporated association, government or intended to fill a television or radio conversation services, where the action or governmental subdivision or agency, broadcasting or cablecasting time slot of of placing a call, receiving a call, or group, or other entity. fifteen (15) minutes in length or longer. subsequent dialing, touch-tone entry, or (i) Personal identification number (l) Providing carrier means a local comparable action of the caller results means a number or code unique to the exchange or interexchange common in a charge to a customer, and where all individual, that is not valid unless it: carrier providing telephone services or a portion of such charge results in a (1) Is requested by a consumer; (other than local exchange services) to a payment, directly or indirectly, to the (2) Is provided exclusively to the vendor for a telephone-billed purchase person who provides or purports to consumer who will be billed for services that is the subject of a billing error provide such information or provided pursuant to that complaint or inquiry. entertainment services. presubscription agreement; and (m) Reasonably understandable (3) Services meeting the criteria of (3) Has been delivered, in writing, to volume means at an audible level that § 308.2(g)(2) will not be considered pay- the consumer who will be billed for the renders the message intelligible to the per-call services if: agreement, simultaneously with a clear receiving audience, and, in any event, at (i) The provider of the audio and conspicuous disclosure of all least the same audible level as that information or an audio entertainment material terms and conditions of the principally used in the advertisement or service demonstrates that the person presubscription agreement, including the pay-per-call service. from whom payment is being sought has the service provider’s name and (n) Service bureau means: (1) Any person, including a common entered into a presubscription address, a business telephone number carrier, who provides one or more of the agreement, meeting the requirements of which the consumer may use to obtain following services to vendors: voice § 308.2(j), to be charged for the additional information or to register a storage, voice processing, call information or service; complaint, and the rates for the service. (ii) The provider of audio information processing, billing aggregation, call (j)(1) Presubscription agreement or audio entertainment services statistics (call and minute counts), call means a contractual agreement to demonstrates that, on average, the revenue arrangements (including purchase goods or services, including payment to the providers of audio revenue-sharing arrangements with audio information or audio information or audio entertainment common carriers), or pre-packaged pay- entertainment services, in which: services will not exceed $0.05 per per-call investment opportunities; or (i) The service provider clearly and minute or $0.50 per call for that (2) Any person, other than a common conspicuously discloses to the particular service; or carrier, who provides access to (iii) The services provided are calls consumer who will be billed for the telephone service to vendors of pay-per- utilizing telecommunications services service, all material terms and call services. for the deaf, or are tariffed directory conditions associated with the use of (o) Slow and deliberate manner means services provided by a common carrier the service, including the service at a rate that renders the message or its affiliate; provider’s name and address, a business intelligible to the receiving audience, (4) Nothing in this definition shall be telephone number which the consumer and, in any event, at a cadence or rate construed to permit any conduct or may use to obtain additional no faster than that principally used in information or to register a complaint, the advertisement or the pay-per-call 1 Section 228(i) of the Communications Act of and the rates for the service; service. 1934, as amended by Section 701 of the (ii) The service provider agrees to (p) Sweepstakes, including games of Telecommunications Act of 1996, states: notify the consumer who will be billed chance, means a game or promotional (1) The term pay-per-call services means any for the service of any future rate mechanism that involves the elements service— changes; (A) In which any person provides or purports to of a prize and chance and does not provide— (iii) The consumer who will be billed require consideration. (i) Audio information or audio entertainment for the service agrees to utilize the (q) Telephone-billed purchase means produced or packaged by such person; service on the terms and conditions any pay-per-call purchase or any (ii) Access to simultaneous voice conversation disclosed by the service provider; and purchase that is either charged to a services; or (iv) The service provider requires the (iii) Any service, including the provision of a customer’s telephone bill, or that is product, the charges for which are assessed on the use of a valid personal identification completed solely as a consequence of basis of the completion of the call; number to prevent unauthorized charges the completion of the call or a (B) For which the caller pays a per-call or per- by persons other than the person who subsequent dialing, touch tone entry, or time-interval charge that is greater than, or in will be billed for the service. comparable action of the caller. Such addition to, the charge for transmission of the call; and (2) Disclosure of a credit card or term does not include: (C) Which is accessed through use of a 900 charge card number, along with (1) A purchase pursuant to a telephone number or other prefix or area code authorization to bill that number, made presubscription agreement that meets designated by the [Federal Communications] during the course of a call to purchase the requirements of § 308.2(j); Commission in accordance with subsection (b)(5) goods or services, including audio (2) Local exchange telephone services (47 U.S.C. 228(b)(5)). (2) Such term does not include calls utilizing information or audio entertainment or interexchange telephone services or telecommunications devices for the deaf, or services, shall constitute a any service that the Federal directory services provided by a common carrier or presubscription agreement if the credit Communications Commission its affiliate or by a local exchange carrier or its or charge card is subject to the dispute determines by rule— affiliate, or any service for which users are assessed charges only after entering into a presubscription or resolution requirements of the Fair (i) Is closely related to the provision comparable arrangement with the provider of such Credit Billing Act and the Truth in of local exchange telephone services or service. Lending Act, as amended, and if the interexchange telephone services; and Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58561

(ii) Is subject to billing dispute § 308.4 Advertising disclosures. advertisement in which there is no resolution procedures required by (a) Cost of the call. (1) The vendor audio presentation of information Federal or State statute or regulation; or shall clearly and conspicuously disclose regarding the pay-per-call service, (3) The purchase of goods or services the cost of the call, in Arabic numerals, including the pay-per-call number. In an that is otherwise subject to billing in any advertisement for the pay-per- advertisement in which the pay-per-call dispute resolution procedures required call service, as follows: number is presented only in the audio by Federal statute or regulation. (i) If there is a flat fee for the call, the portion, the cost of the call shall be (r) Variable option rate basis refers to advertisement shall state the total cost delivered immediately following the the rate structure of a pay-per-call of the call. first and last delivery of the pay-per-call service where the rate billed to the (ii) If the call is billed on a time- number, except that in a program-length customer depends on the specific sensitive basis, the advertisement shall commercial, the disclosure shall be options chosen by the caller during the state the cost per minute and any delivered immediately following each call. minimum charges. If the length of the delivery of the pay-per-call number. (s) Variable time rate basis refers to program can be determined in advance, (ii) In a print advertisement, the the rate structure of a pay-per-call the advertisement shall also state the disclosure shall be placed adjacent to service where the rate billed to the maximum charge that could be incurred each presentation of the pay-per-call customer changes during the call due to if the caller listens to the complete number. However, in an advertisement passage of time or due to other factors program. displaying more than one pay-per-call unrelated to specific options chosen by (iii)(A) If the call is billed on a number with the same cost, the the caller. variable option rate basis, the disclosure need only appear adjacent to (t) Vendor means any person who advertisement shall state, in accordance the largest presentation of the pay-per- sells or offers to sell a pay-per-call with § 308.4(a)(1)(i) and (ii), the cost of call number. Each letter or numeral of service or who sells or offers to sell the initial portion of the call, any the disclosure shall be, at a minimum, goods or services via a telephone-billed minimum charges, and the range of rates one-half the size of each letter or purchase. A person who provides only that may be charged depending on the numeral of the pay-per-call number to transmission services or only billing and options chosen by the caller; which the disclosure is adjacent. collection services shall not be (B) If the call is billed on a variable (iii) In a radio advertisement, the considered a vendor. time rate basis, the advertisement shall disclosure shall be made at least once, state, in accordance with and shall be delivered immediately Subpart BÐPay-Per-Call Services §§ 308.4(a)(1)(i) and (ii), the cost of each following the first delivery of the pay- different portion of the call; per-call number. In a program-length § 308.3 General requirements for (iv) The advertisement shall disclose commercial, the disclosure shall be advertising disclosures. any other fees that will be charged for delivered immediately following each The following requirements apply to the service. delivery of the pay-per-call number. disclosures required in advertisements (v) If the caller may be transferred to (b) Sweepstakes; games of chance. (1) under § 308.4: another pay-per-call service, the The vendor that advertises a prize or (a) The disclosures shall be made in advertisement shall disclose the cost of award, or a service or product, at no cost the same language as that principally the other call, in accordance with or for a reduced cost, to be awarded to used in the advertisement. § 308.4(a)(1)(i), (ii), (iii), and (iv). the winner of any sweepstakes, (b) Television, video, and print (2) For purposes of § 308.4(a), including games of chance, shall clearly disclosures shall be of a color or shade disclosures shall be made ‘‘clearly and and conspicuously disclose in the that readily contrasts with the conspicuously’’ as set forth in § 308.3 advertisement the odds of being able to background of the advertisement. and as follows: receive the prize, award, service, or (c) In print advertisements, (i) In a television or videotape product at no cost or reduced cost. If the disclosures shall be parallel with the advertisement, the video disclosure odds are not calculable in advance, the base of the advertisement. shall appear adjacent to each video advertisement shall disclose the factors (d) Audio disclosures, whether in presentation of the pay-per-call number. used in calculating the odds. Either the television or radio, shall be delivered in However, in an advertisement advertisement or the preamble required a slow and deliberate manner and in a displaying more than one pay-per-call by § 308.9 for such service shall clearly reasonably understandable volume. number with the same cost, the video and conspicuously disclose that no call (e) Nothing contrary to, inconsistent disclosure need only appear adjacent to to the pay-per-call service is required to with, or in mitigation of, the required the largest presentation of the pay-per- participate, and shall also disclose the disclosures shall be used in any call number. Each letter or numeral of existence of a free alternative method of advertisement in any medium; nor shall the video disclosure shall be, at a entry, and either instructions on how to any audio, video, or print technique be minimum, one-half the size of each enter, or a local or toll-free telephone used that is likely to detract letter or numeral of the pay-per-call number or address to which customers significantly from the communication of number to which the disclosure is may call or write for information on the disclosures. adjacent. In addition, the video how to enter the sweepstakes. Any (f) In any program-length commercial, disclosure shall appear on the screen for description or characterization of the required disclosures shall be made at the duration of the presentation of the prize, award, service, or product that is least three (3) times (unless more pay-per-call number. An audio being offered at no cost or reduced cost frequent disclosure is otherwise disclosure shall be made at least once, shall be truthful and accurate. required) near the beginning, middle, simultaneously with a video (2) For purposes of § 308.4(b) and end of the commercial. presentation of the disclosure. However, disclosures shall be made ‘‘clearly and (g) In any advertising medium not no audio presentation of the disclosure conspicuously’’ as set forth in § 308.3 specifically addressed in this Rule, all is required in an advertisement fifteen and as follows: advertising disclosures must be clear (15) seconds or less in length in which (i) In a television or videotape and conspicuous and not avoidable by the pay-per-call number is not presented advertisement, the disclosures may be consumers acting reasonably. in the audio portion, or an made in either the audio or video 58562 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules portion of the advertisement. If the (2) For purposes of § 308.4(d), directed primarily to individuals under disclosures are made in the video disclosures shall be made ‘‘clearly and 18; portion, they shall appear on the screen conspicuously’’ as set forth in § 308.3 (iv) Whether the advertisement in sufficient size and for sufficient time and as follows: appears on a cable or broadcast to allow customers to read and (i) In a television or videotape television station directed primarily to comprehend the disclosures. advertisement, each letter or numeral of individuals under 18; (ii) In a print advertisement, the the video disclosure shall be, at a (v) Whether the advertisement disclosures shall appear in a sufficient minimum, one-half the size of each appears on the same videotape as a size and prominence and such location letter or numeral of the largest commercially-prepared videotape to be readily noticeable, readable, and presentation of the pay-per-call number. directed primarily to individuals under comprehensible. The video disclosure shall appear on the 18, or preceding a movie directed (c) Federal programs. (1) The vendor screen for sufficient time to allow primarily to individuals under 18 that advertises a pay-per-call service customers to read and comprehend the shown in a movie theater; and that is not operated or expressly disclosure. An audio disclosure shall be (vi) Whether the advertisement, authorized by a Federal agency, but that made at least once, simultaneously with regardless of when or where it appears, provides information on a Federal a video presentation of the disclosure. is directed primarily to individuals program, shall clearly and However, no audio presentation of the under 18 in light of its subject matter, conspicuously disclose in the disclosure is required in an visual content, age of models, language, advertisement that the pay-per-call advertisement fifteen (15) seconds or characters, tone, message, or the like. less in length in which the pay-per-call service is not authorized, endorsed, or § 308.5 Advertising to children prohibited. approved by any Federal agency. number is not presented in the audio (a) The vendor shall not direct Advertisements providing information portion, or an advertisement in which advertisements for such pay-per-call on a Federal program shall include, but there is no audio presentation of services to children under the age of 12, not be limited to, advertisements that information regarding the pay-per-call unless the service is a bona fide contain a seal, insignia, trade or brand service, including the pay-per-call educational service. name, or any other term or symbol that number. (ii) In a print advertisement, each (b) For the purposes of this regulation, reasonably could be interpreted or letter or numeral of the disclosure shall advertisements directed to children construed as implying any Federal be, at a minimum, one-half the size of under 12 shall include any pay-per-call government connection, approval, or each letter or numeral of the largest advertisement appearing during or endorsement. presentation of the pay-per-call number. immediately adjacent to programming (2) For purposes of § 308.4(c), (3) For the purposes of this regulation, for which competent and reliable disclosures shall be made ‘‘clearly and advertisements directed primarily to audience composition data demonstrate conspicuously’’ as set forth in § 308.3 individuals under 18 shall include any that more than 50% of the audience is and as follows: pay-per-call advertisement appearing composed of children under 12, and any (i) In a television or videotape during or immediately adjacent to pay-per-call advertisement appearing in advertisement, the disclosure may be programming for which competent and a periodical for which competent and made in either the audio or video reliable audience composition data reliable readership data demonstrate portion of the advertisement. If the demonstrate that more than 50% of the that more than 50% of the readership is disclosure is made in the video portion, audience is composed of individuals composed of children under 12. it shall appear on the screen in under 18, and any pay-per-call (c) For the purposes of this regulation, sufficient size and for sufficient time to advertisement appearing in a periodical if competent and reliable audience allow customers to read and for which competent and reliable composition or readership data do not comprehend the disclosure. The readership data demonstrate that more demonstrate that more than 50% of the disclosure shall begin within the first than 50% of the readership is composed audience or readership is composed of fifteen (15) seconds of the of individuals under 18. children under 12, then the Commission advertisement. (4) For the purposes of this regulation, shall consider the following criteria in (ii) In a print advertisement, the if competent and reliable audience determining whether an advertisement disclosure shall appear in a sufficient composition or readership data do not is directed to children under 12: size and prominence and such location demonstrate that more than 50% of the (1) Whether the advertisement to be readily noticeable, readable, and audience or readership is composed of appears in a publication directed to comprehensible. The disclosure shall individuals under 18, then the children under 12, including, but not appear in the top one-third of the Commission shall consider the limited to, books, magazines, and comic advertisement. following criteria in determining books; (iii) In a radio advertisement, the whether an advertisement is directed (2) Whether the advertisement disclosure shall begin within the first primarily to individuals under 18: appears during or immediately adjacent fifteen (15) seconds of the (i) Whether the advertisement appears to television programs directed to advertisement. in publications directed primarily to children under 12, including, but not (d) Advertising to individuals under individuals under 18, including, but not limited to, children’s programming as the age of 18. (1) The vendor shall limited to, books, magazines, and comic defined by the Federal Communications ensure that any pay-per-call books; Commission, animated programs, and advertisement directed primarily to (ii) Whether the advertisement after-school programs; individuals under the age of 18 shall appears during or immediately adjacent (3) Whether the advertisement contain a clear and conspicuous to television programs directed appears on a television station or disclosure that all individuals under the primarily to individuals under 18, channel directed to children under 12; age of 18 must have the permission of including, but not limited to, mid- (4) Whether the advertisement is such individual’s parent or legal afternoon weekday television shows; broadcast during or immediately guardian prior to calling such pay-per- (iii) Whether the advertisement is adjacent to radio programs directed to call service. broadcast on radio stations that are children under 12, or broadcast on a Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58563 radio station directed to children under (e) Referral to toll-free telephone (iii)(A) If the call is billed on a 12; numbers. The vendor is prohibited from variable option rate basis, the preamble (5) Whether the advertisement referring in advertisements to an 800, shall state, in accordance with appears on the same video as a 888, or 877 number, or any other § 308.9(a)(2)(i) and (ii), the cost of the commercially-prepared video directed telephone number advertised as or initial portion of the call, any minimum to children under 12, or preceding a widely understood to be toll-free, if that charges, and the range of rates that may movie directed to children under 12 number is used in a manner that be charged depending on the options shown in a movie theater; violates the prohibition concerning toll- chosen by the caller; (6) Whether the advertisement or free numbers set forth in § 308.13. (B) If the call is billed on a variable promotion appears on product (f) Nothing in this section shall be time rate basis, the preamble shall state, packaging directed to children under 12; construed to permit any conduct or in accordance with § 308.9(a)(2)(i) and and practice otherwise precluded or limited (ii), the cost of each different portion of (7) Whether the advertisement, by regulations of the Federal the call; regardless of when or where it appears, Communications Commission. (iv) Any other fees that will be is directed to children under 12 in light charged for the service shall be of its subject matter, visual content, age § 308.8 Special rule for infrequent disclosed, as well as fees for any other publications. of models, language, characters, tone, pay-per-call service to which the caller message, or the like. (a) The vendor that advertises a pay- may be transferred; per-call service in a publication that (3) Informs the caller that charges for § 308.6 Misrepresentation of cost meets the requirements set forth in prohibited. the call begin, and that to avoid charges § 308.8(c) may include in such the call must be terminated, three (3) (a) Deceptive representation of cost. It advertisement, in lieu of the cost seconds after a clearly discernible signal is a deceptive act or practice, and a disclosures required by § 308.4(a), a or tone indicating the end of the violation of this Rule for any vendor to clear and conspicuous disclosure that a preamble; misrepresent the cost of a pay-per-call call to the advertised pay-per-call (4) Informs the caller that anyone service. service may result in a substantial under the age of 18 must have the (b) Signal indicating end of free time. charge. permission of a parent or legal guardian If any portion of a telephone call to a (b) The vendor that places an in order to complete the call; and pay-per-call service is offered as free, alphabetical listing in a publication that (5) Informs the caller, in the case of the vendor shall provide a clearly meets the requirements set forth in a pay-per-call service that is not discernible signal or tone indicating the § 308.8(c) is not required to make any of operated or expressly authorized by a end of the free time, and shall inform the disclosures required by §§ 308.4(a) Federal agency but that provides the caller that to avoid charges, the call through (d) in the alphabetical listing, information on a Federal program, or must be terminated within three (3) provided that such listing does not that uses a trade or brand name or any seconds of such signal or tone. contain any information except the other term that reasonably could be § 308.7 Other advertising restrictions. name, address, and telephone number of interpreted or construed as implying the vendor. any Federal government connection, (a) Electronic tones in advertisements. (c) The publication referred to in approval, or endorsement, that the pay- The vendor is prohibited from using § 308.8(a) and (b) must be: per-call service is not authorized, advertisements that emit electronic (1) Widely distributed; tones that can automatically dial a pay- (2) Printed annually or less endorsed, or approved by any Federal per-call service. frequently; and agency. (b) Telephone solicitations. The (3) One that has an established policy (b) No charge to caller for preamble vendor shall ensure that any telephone of not publishing specific prices in message. The vendor is prohibited from message conveyed during an inbound or advertisements. charging a caller any amount outbound call that solicits a person to whatsoever for such a service if the place a call to a pay-per-call service § 308.9 Preamble message. caller hangs up at any time prior to discloses the cost of the call in a slow (a) The vendor shall include, in each three (3) seconds after the signal or tone and deliberate manner and in a pay-per-call message, an introductory indicating the end of the preamble reasonably understandable volume, in disclosure message (‘‘preamble’’) in the described in § 308.9(a). However, the accordance with §§ 308.4(a)(1)(i) same language as that principally used three-second delay, and the message through (v). in the pay-per-call message, that clearly, concerning such delay described in (c) Solicitations via facsimile in a slow and deliberate manner and in § 308.9(a)(3), is not required if the machine. The vendor shall ensure that a reasonably understandable volume: vendor offers the caller an affirmative any facsimile message that solicits calls (1) Identifies the name of the vendor means (such as pressing a key on a to a pay-per-call service contains all the and describes the service being telephone keypad) of indicating a relevant disclosures required by this provided; decision to incur the charges. Rule, and that such disclosures are (2) Specifies the cost of the service as (c) Nominal cost calls. The preamble provided in the manner required for follows: described in § 308.9(a) is not required print advertisements in §§ 308.3 and (i) If there is a flat fee for the call, the when the entire cost of the pay-per-call 308.4(a)(2)(ii). preamble shall state the total cost of the service, whether billed as a flat rate or (d) Solicitations via beeper, pager, or call; on a time sensitive basis, is three (3) similar device. The vendor shall ensure (ii) If the call is billed on a time- dollars or less. that any beeper or pager message that sensitive basis, the preamble shall state (d) Data service calls. The preamble solicits calls to a pay-per-call service the cost per minute and any minimum described in § 308.9(a) is not required contains all the relevant disclosures charges; if the length of the program can when the entire call consists of the non- required by this Rule, and that such be determined in advance, the preamble verbal transmission of information. disclosures are provided in the manner shall also state the maximum charge (e) Bypass mechanism. The vendor required for print advertisements in that could be incurred if the caller that offers to frequent callers or regular §§ 308.3 and 308.4(a)(2)(ii). listens to the complete program; customers to such services the option of 58564 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules activating a bypass mechanism to avoid § 308.13 Prohibitions concerning toll-free telephone-billed purchase where the listening to the preamble during numbers. vendor, service bureau, or billing entity subsequent calls shall not be deemed to Any person is prohibited from using knew or should have known that the be in violation of § 308.9(a), provided an 800, 888, or 877 number, or any other charge was not expressly authorized by that any such bypass mechanism shall telephone number advertised as or the person from whom payment is being be disabled for a period of no less than widely understood to be toll-free in a sought. thirty (30) days immediately after the manner that would result in: institution of an increase in the price for (a) Any customer being assessed, by § 308.18 Disclosure requirements for billing statements. the service or a change in the nature of virtue of a caller completing the call, a the service offered. charge for the call; The vendor shall ensure that any (b) The caller being connected to an billing statement for its charges shall: § 308.10 Deceptive billing practices. access number for, or otherwise (a) Display any charges for telephone- (a) Deceptive billing for pay-per-call transferred to, a pay-per-call service; billed purchases in a portion of the services in violation of the Rule. It is a (c) Any customer being charged for customer’s bill that is identified as not deceptive act or practice and a violation information or entertainment conveyed being related to local and long-distance of this Rule for any vendor to collect or during the call, unless that person has telephone charges; attempt to collect, directly or indirectly: entered into a presubscription (b) For each telephone-billed (1) Charges for pay-per-call services in agreement, meeting the requirements of purchase charge so displayed, identify excess of the amount described in the § 308.2(j), to be charged for the the type of service or product and the preamble for such pay-per-call services; information or entertainment; or amount of the charge; or (d) Any person being charged for a (c) For each pay-per-call purchase call back for the provision of audio or charge so displayed, accurately specify (2) Charges for pay-per-call services data information services, entertainment the telephone number dialed by the that are provided in violation of this services, simultaneous voice caller, as well as the date, time, and, for Rule. conversation services, or products. calls billed on a time-sensitive basis, the (b) Deceptive billing for time-based duration of the call; and charges after disconnection by the § 308.14 Monthly or other recurring (d) Display the local or toll-free charges. caller. It is a deceptive practice and a telephone number where customers can violation of this Rule for the vendor to The vendor is prohibited from readily obtain answers to their questions fail to stop the assessment of time-based providing a pay-per-call service that and information on their rights and pay-per-call service charges results in a monthly or other recurring obligations with regard to their immediately upon disconnection by the charge, unless the vendor and the telephone-billed purchases, and can caller. person to be billed for the service have obtain the name and mailing address of entered into a presubscription the vendor. § 308.11 Prohibition on services to agreement, meeting the requirements of children. § 308.2(j), that authorizes monthly or § 308.19 Access to information. The vendor shall not direct pay-per- other recurring charges for that service. Any common carrier that provides call services to children under the age § 308.15 Refunds to customers. telecommunication services to any of 12, unless such service is a bona fide vendor or service bureau shall make The vendor shall be liable for refunds educational service. The Commission available to the Commission, upon or credits to customers who have been shall consider the following criteria in written request, any records and billed for pay-per-call services, and who determining whether a pay-per-call financial information maintained by have paid the charges for such services, service is directed to children under 12: such carrier relating to the arrangements pursuant to pay-per-call services that (a) Whether the pay-per-call service is (other than for the provision of local have been found to have violated any advertised in the manner set forth in exchange service) between such carrier provision of this Rule or any other § 308.5(b) and (c); and and any vendor or service bureau. (b) Whether the pay-per-call service, Federal rule or law. § 308.20 Dispute resolution procedures. regardless of when or where it is § 308.16 Service bureau liability. advertised, is directed to children under (a) Initiation of billing review. To be A service bureau shall be liable for 12, in light of its subject matter, content, guaranteed the protections provided violations of the Rule by any vendor of language, featured personality, under § 308.20, a customer shall initiate pay-per-call services using its call characters, tone, message, or the like. a billing review with respect to a processing facilities or other services telephone-billed purchase by providing where the service bureau knew or § 308.12 Prohibition concerning toll the billing entity with notice of a billing charges. should have known of the violation. error no later than sixty (60) days after The vendor shall not offer a pay-per Subpart CÐPay-Per-Call Services and the billing entity transmitted the first call service that would result in any Other Telephone-Billed Purchases billing statement that contains the customer being assessed a charge for disputed charge. If the billing error is any local exchange telephone service or § 308.17 Express authorization required. the reflection on a billing statement of interexchange telephone service or any Any telephone-billed purchase, other a telephone-billed purchase not service that the Federal than a pay-per-call purchase that is provided to the customer in accordance Communications Commission blockable pursuant to 47 U.S.C. 228(c), with the stated terms of the transaction, determines by rule— requires the express authorization of the the 60-day period shall begin to run (a) Is closely related to the provision person to be billed for the purchase. It from the date the goods or services are of local exchange telephone services or is a deceptive act or practice and a delivered or, if not delivered, should interexchange telephone services; and violation of this Rule for any vendor, have been delivered, if such date is later (b) Is subject to billing dispute service bureau, or billing entity to than the date the billing statement was resolution procedures required by collect or attempt to collect, directly or transmitted. The customer’s billing error Federal or State statute or regulation. indirectly, payment for such a notice shall: Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58565

(1) Set forth or otherwise enable the and providing carrier, as applicable, that amount determined not to be in error billing entity to identify the customer’s are involved in the telephone-billed and that failure to pay such amount may name and the telephone number to purchase, or provide the customer with be reported to a credit reporting agency which the charge was billed; a local or toll-free telephone number or subject the customer to a collection (2) Indicate the customer’s belief that that the customer may call to readily action, if that in fact may happen. The the statement contains an error, and the obtain this information directly. billing entity shall allow the longer of date and amount of such error; and However, the billing entity is not ten (10) days or the number of days the (3) Set forth the reasons for the required to make the disclosure customer is ordinarily allowed (whether customer’s belief, to the extent possible, concerning collection efforts if the by custom, contract, or State law) to pay that the statement contains an error. vendor, its agent, or the providing undisputed amounts. (b) Disclosure of method of providing carrier, as applicable, will not collect or (d) Withdrawal of billing error notice. notice; presumption if oral notice is attempt to collect the disputed charge; A billing entity need not comply with permitted. A billing entity shall clearly or the requirements of § 308.20(c) if the and conspicuously 2 disclose on each (ii) Conduct a reasonable investigation customer has, after giving notice of a billing statement or on other material (including, where appropriate, billing error and before the expiration of accompanying the billing statement: contacting the customer, vendor, service the time limits specified therein, agreed (1) The method (oral or written) by bureau, or providing carrier), after that the billing statement was correct or which the customer may provide a which it shall transmit a written agreed to withdraw voluntarily the billing error notice in the manner set explanation to the customer, setting billing error notice. forth in § 308.20(a); 3 forth the reasons why it has determined (e) Limitation on responsibility for (2) The name of the billing entity that no billing error occurred, make any billing error. After complying with the designated to receive and respond to appropriate adjustments to the provisions of § 308.20(c), a billing entity billing errors; customer’s account, and provide copies has no further responsibility under that (3) If written notice is required, the of documentary evidence of the section if the customer continues to mailing address to which notice should customer’s indebtedness. The make substantially the same allegation be sent; reasonable investigation and written with respect to a billing error. (4) If oral notice is permitted, a local explanation shall, in every case, address (f) Customer’s right to withhold or toll-free telephone number that is each potential billing error, and shall disputed amount; limitation on readily available for customers to address with particularity the relevant collection action. Once the customer has submit a billing error notice. The billing facts asserted by the customer.4 submitted notice of a billing error to a entity and the vendor may, by (3) The action required by billing entity, the customer need not agreement, select a single telephone § 308.20(c)(2) shall be taken no later pay, and no billing entity, providing number to satisfy the requirements of than sixty (60) days after receiving the carrier, service bureau, or vendor may this section as well as § 308.18(d). notice of the billing error and before try to collect, any portion of any (c) Response to customer notice. A taking any action to collect the disputed required payment that the customer billing entity that receives notice of a amount, or any part thereof. After reasonably believes is related to the billing error as described in § 308.20(a) complying with § 308.20(c)(2), if the disputed amount until the billing entity shall: billing entity has determined that any receiving the notice has complied with (1) Send a written acknowledgment to disputed amount is in error, or has for the requirements of § 308.20(c) and until the customer including a statement that other reasons determined not to sustain the customer has received the written any disputed amount need not be paid the disputed charge, the billing entity explanation and documentary evidence pending investigation of the billing shall: setting forth that no billing error has error. This shall be done no later than (i) Within thirty (30) days of such occurred, pursuant to § 308.20(c)(2)(ii) forty (40) days after receiving the notice, determination, notify the appropriate or § 308.20(n)(2). The billing entity, unless the action required by providing carrier, vendor, or service providing carrier, service bureau, or § 308.20(c)(2) is taken within such 40- bureau as applicable, of its disposition vendor are not prohibited from taking day period; and of the customer’s billing error and the any action to collect any undisputed (2)(i) Correct any billing error and reasons therefor, and provide sufficient portion of the bill, or from reflecting a credit the customer’s account for any information for the appropriate entity to disputed amount and related charges on disputed amount and any related identify the customer account at issue; a billing statement, provided that the charges, and notify the customer of the and billing statement clearly states that correction. The billing entity also shall (ii) Promptly notify the customer in payment of any disputed amount or disclose to the customer that collection writing of the time when payment is related charges is not required pending efforts may occur despite the credit, and due of any portion of the disputed the billing entity’s compliance with shall provide the names, mailing § 308.20(c). addresses, and business telephone 4 There shall be a rebuttable presumption that (g) Prohibition on charges for numbers of the vendor, service bureau, goods or services were actually transmitted or initiating billing review. A billing delivered to the extent that a vendor, service entity, providing carrier, service bureau, bureau, or providing carrier produces documents 2 The standard for ‘‘clear and conspicuous’’ as prepared and maintained in the ordinary course of or vendor may not impose on the used in this Section shall be the standard business showing the date on, and the place to, customer any charge related to the enunciated by the Board of Governors of the Federal which the goods or services were transmitted or billing review, including charges for Reserve System in its Official Staff Commentary on delivered. If a billing entity relies on this documentation or investigation. Regulation Z, which requires simply that the presumption in responding to a billing error notice, disclosures be in a reasonably understandable form. it shall provide the customer with the opportunity (h) Restrictions on credit reporting— See 12 CFR part 226, Supplement I, Comment to rebut this presumption with a declaration signed (1) Adverse credit reports prohibited. 226.5(a)(1)–1. under penalty of perjury. The billing entity shall Once the customer has submitted notice 3 If oral notice is permitted, any customer who not require this declaration to be notarized. In of a billing error to a billing entity, a orally communicates an allegation of a billing error enforcing violations of this Rule, the Commission to a billing entity shall be presumed to have may rebut this presumption with evidence billing entity, providing carrier, service properly initiated a billing review in accordance indicating that, in numerous instances, the goods or bureau, vendor, or other agent may not with the requirements of 308.20(a). services were not actually transmitted or delivered. report or threaten directly or indirectly 58566 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules to report adverse information to any the customer has been given a refund; separate statement or on the customer’s person because of the customer’s or billing statement. If any of the withholding payment of the disputed (2) Transmit a credit statement to the disclosures are provided on the back of amount or related charges, until the billing entity through the vendor’s the billing statement, the billing entity billing entity has met the requirements normal channels for billing telephone- shall include a reference to those of § 308.20(c) and allowed the customer billed purchases. The billing entity disclosures on the front of the as many days thereafter to make shall, within seven (7) business days statement. payment of any amount determined not after receiving a credit statement, credit (ii) At the billing entity’s option, to be in error, as prescribed by the customer’s account with the amount additional information or explanations § 308.20(c)(3)(ii). of the refund. may be supplied with the disclosures (2) Reports on continuing disputes. If (k) Right of customer to assert claims required by § 308.20(m), but none shall a billing entity receives further notice or defenses. Any billing entity or be stated, utilized, or placed so as to from a customer within the time providing carrier who seeks to collect mislead or confuse the customer or allowed for payment under charges from a customer for a telephone- contradict, obscure, or detract attention § 308.20(h)(1) that any portion of the billed purchase that is the subject of a from the information required to be billing error is still in dispute, a billing dispute between the customer and the disclosed. The disclosures required by entity, providing carrier, vendor, or vendor shall be subject to all claims § 308.20(m) shall appear separately and other agent may not report to any person (other than tort claims) and defenses above any other disclosures except that the customer’s account is arising out of the transaction and those required under 47 CFR delinquent because of the customer’s relating to the failure to resolve the 64.1510(a)(2)(i). failure to pay that disputed amount dispute that the customer could assert (n) Multiple billing entities. (1) If a unless the billing entity, providing against the vendor, if the customer has telephone-billed purchase involves carrier, vendor, or other agent also made a good faith attempt to resolve the more than one billing entity, only one reports that the amount is in dispute dispute with the vendor or providing set of disclosures need be given, and the and notifies the customer in writing of carrier (other than the billing entity). billing entities shall agree among the name and address of each person to The billing entity or providing carrier themselves which billing entity must whom the vendor, billing entity, shall not be liable under this paragraph receive and respond to billing error providing carrier, or other agent has for any amount greater than the amount notices. reported the account as delinquent. billed to the customer for the purchase (2) If any billing entity has forgiven a (3) Reporting of dispute resolutions (including any related charges). disputed charge for a telephone-billed required. A billing entity, providing (l) Retaliatory actions prohibited. A purchase, no other billing entity may carrier, vendor, or other agent shall billing entity, providing carrier, vendor, attempt to collect such charge without report in writing any subsequent or other agent may not accelerate any first conducting the reasonable resolution of any matter reported part of the customer’s indebtedness or investigation and providing the pursuant to § 308.20(h)(2) to all persons restrict or terminate the customer’s customer with the written explanation to whom such matter was initially access to pay-per-call services solely and documentary evidence as specified reported. because the customer has exercised in by § 308.20(c)(2)(ii). (i) Forfeiture of right to collect good faith rights provided by this (3) If a billing entity other than the disputed amount. Any billing entity, Section. one designated to receive and respond providing carrier, vendor, or other agent (m) Notice of billing error rights—(1) to billing errors receives notice of a who fails to comply with the Billing notice. With each billing billing error as described in § 308.20(a), requirements of § 308.20(b), (c), (f), (g), statement that contains charges for a that billing entity shall either: or (h) forfeits any right to collect from telephone-billed purchase, a billing (i) Promptly transmit to the customer the customer the amount indicated by entity shall include a statement that sets the name, mailing address, and business the customer, under § 308.20(a)(2), to be forth the procedure that a customer telephone number of the billing entity in error, and any late charges or other must follow to notify the billing entity designated to receive and respond to related charges thereon, up to fifty (50) of a billing error. The statement shall billing errors; or dollars per transaction. Nothing in this also disclose: (ii) Transmit the billing error notice Section shall be construed to limit the (i) The customer’s right to withhold within fifteen (15) days to the billing liability of any billing entity, providing payment of any disputed amount; entity designated to receive and respond carrier, or other agent with respect to: (ii) That any action to collect any to billing errors. The time requirements (1) Providing full refunds or credits disputed amount will be suspended, in § 308.20(c) shall not begin to run for charges that are in error; pending completion of the billing until the billing entity designated to (2) Civil penalties for violations of review; and receive and respond to billing errors § 308.20; or (iii) That, to be guaranteed the receives notice of the billing error, (3) Liability for violations of any other protections provided under the Dispute either from the customer or from the provision of this Rule. Resolution Procedures of the Federal billing entity to whom the customer (j) Prompt notification of returns and Trade Commission’s Rule Concerning transmitted the notice. crediting of refunds. When a vendor Pay-Per-Call Services and Other (4) If a customer fails to pay for a other than the billing entity accepts the Telephone-Billed Purchases, a customer telephone-billed purchase and fails to return of property or forgives a debt for must initiate a billing review no later initiate a billing review within the sixty services in connection with a telephone- than sixty (60) days after the billing (60) days provided under § 308.20(a), billed purchase, the vendor shall, entity transmitted the first billing the billing entity that transmitted the within seven (7) business days from statement that contains a charge for first billing statement containing the accepting the return or forgiving the such telephone-billed purchase. unpaid charge shall, no later no later debt, either: (2) General disclosure requirements. than one hundred and twenty (120) days (1) Mail or deliver a cash refund (i) The disclosures required by after such statement was transmitted, directly to the customer’s address, and § 308.20(m)(1) shall be made clearly and provide the vendor or service bureau notify the appropriate billing entity that conspicuously and may be made on a with: Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58567

(i) Notice of the failure to pay; § 308.22 Actions by States. Commission with the required notice (ii) The amount of the unpaid charge; (a) As provided by 15 U.S.C. 5712, immediately upon instituting its action. and whenever an attorney general of any (c) Nothing contained in this section (iii) Sufficient information to identify State has reason to believe that the shall prohibit an authorized State the customer’s account. interests of the residents of that State official from proceeding in State court have been or are being threatened or on the basis of an alleged violation of (o) Multiple customers. If there is any general civil or criminal statute of more than one customer involved in a adversely affected because any person has engaged or is engaging in a pattern such State. telephone-billed purchase, the (d) Nothing contained in this section disclosures may be made to any or practice which violates any section of this Rule relating to the provision of shall prevent the attorney general from customer who is primarily liable on the exercising the powers conferred on the account. pay-per-call services, other than § 308.20, the State may bring a civil attorney general by the laws of such (p) Deceptive statements to billing action on behalf of its residents in an State to conduct investigations or to entities by vendors, service bureaus, and appropriate district court to enjoin such administer oaths or affirmations or to providing carriers. It is a deceptive act pattern or practice, to enforce compel the attendance of witnesses or or practice and a violation of this Rule compliance with this Rule (except for the production of documentary and for any vendor, service bureau, or § 308.20), or to obtain such further and other evidence. providing carrier to provide false or other relief as the court may deem (e) Whenever the Commission has misleading information to a billing appropriate. instituted a civil action for violation of entity conducting an investigation of a any provision of this Rule, no State may, telephone-billed purchase charge under (b) Any attorney general or other during the pendency of such action § 308.20(c) or § 308.20(n). officer of a State authorized by the State instituted by the Commission, to bring an action under this Rule shall subsequently institute a civil action Subpart DÐGeneral Provisions serve written notice on the Commission, against any defendant named in the if feasible, prior to its initiating such § 308.21 Severability. Commission’s complaint for violation of action. The notice shall be sent to the any provision as alleged in the The provisions of this Rule are Office of the Director, Bureau of Commission’s complaint. separate and severable from one Consumer Protection, Federal Trade another. If any provision is stayed or Commission, Washington, DC 20580, By direction of the Commission. determined to be invalid, it is the and shall include a copy of the Donald S. Clark, Commission’s intention that the complaint and any other pleadings to be Secretary. remaining provisions shall continue in filed with the court. If prior notice is not Note: The following appendix will not effect. feasible, the State shall serve the appear in the Code of Federal Regulations.

APPENDIXÐLIST OF COMMENTERS AND ACRONYMS

Acronym Commenter

ALLIANCE ...... Alliance of Young Families. ALLIANCE±2 ...... Supplemental comments (May 23, 1997) of Alliance of Young Families. AARP ...... American Association of Retired Persons. AMERITECH ...... Ameritech. ATN ...... Atlantic Tele-Network. ATN±2 ...... Supplemental comments (September 3, 1997) of ATN. AT&T ...... AT&T. AT&T±2 ...... Supplemental comments (August 8, 1997) of AT&T. AUDIOTEX ...... Audiotex Connection Inc. BELL ...... W. Marie Bell. CINCINNATI ...... Cincinnati BBB. CVS ...... Communications Venture Services, Inc. CU ...... Consumers Union. DMA ...... Direct Marketing Association. FLORIDA ...... Florida Public Service Commission. GORDON ...... Honorable Bart Gordon, U.S. House of Representatives. GORDON±2 ...... Supplemental comments (September 4, 1997) of Honorable Bart Gordon. HFT ...... HFT and LO-AD Communications Corp. UK ...... Independent Committee for the Supervision of Standards of Telephone Information Services. ISA ...... Interactive Services Association. ITA ...... International Telemedia Association. MCI ...... MCI Telecommunications Corporation. NAAG ...... National Association of Attorneys General. NCL ...... National Consumers League. PILGRIM ...... Pilgrim Telephone, Inc. PMAA ...... Promotion Marketing Association of America. SNET ...... Southern New England Telephone Company. SW ...... Southwestern Bell and Pacific Bell. TPI ...... Tele-Publishing, Inc. TSIA ...... TeleServices Industry Association. TSIA±2 ...... Supplemental Comments (July 24, 1997) of TSIA. TURJANICA ...... William L. Turjanica. US WEST ...... U S West, Inc. 58568 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

APPENDIXÐLIST OF COMMENTERS AND ACRONYMSÐContinued

Acronym Commenter

WISCONSIN ...... Wisconsin Department of Justice.

[FR Doc. 98–28974 Filed 10–29–98; 845 am] BILLING CODE 6750±01±P federal register October 30,1998 Friday Safety Standards;ProposedRule Manufactured HomeConstructionand 24 CFRPart3280 Development Housing andUrban Department of Part IV 58569 58570 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

DEPARTMENT OF HOUSING AND speech impairments may access that regularly, and to prepare proposed URBAN DEVELOPMENT number toll-free via TTY by calling the amendments to update them on a 2-year Federal Information Relay Service at cycle. Where a reference standard 24 CFR Part 3280 (800) 877–8399. change would impose additional SUPPLEMENTARY INFORMATION: compliance burdens or affect the [Docket No. FR 4376±P±01] performance of the homes, HUD will I. Background RIN 2502±AH23 always consider the advisability of The National Manufactured Housing separate rulemaking. Manufactured Home Construction and Construction and Safety Standards Act Since these proposed amendments Safety Standards of 1974 (42 U.S.C. 5401 et seq.) (the Act) only involve reference standards, the AGENCY: Office of the Assistant authorizes the Secretary of HUD to establish and amend the Federal presentation of the changes and Secretary for Housing—Federal Housing discussion is in the form of tables. Commissioner, HUD. Manufactured Home Construction and Safety Standards (the Standards), These tables will list the reference ACTION: Proposed rule. codified in 24 CFR part 3280. The standards by their designation, edition date, title, and the sections of the SUMMARY: purposes of the Act are ‘‘to reduce the HUD is proposing to amend FMHCSS in which it can be found. the Federal Manufactured Home number of personal injuries and deaths Table 1 lists all the reference standards Construction and Safety Standards and the amount of insurance cost and currently in the FMHCSS. Table 2 lists (FMHCSS) to update many of the property damage resulting from all the reference standards that this rule standards that are incorporated by manufactured home accidents and to proposes to include in the FMHCSS. An reference therein. These reference improve the quality and durability of indicator with each reference standard standards, which are developed by manufactured homes’’ (42 U.S.C. 5401). will provide the action being taken on voluntary consensus or industry groups, Additionally, OMB Circular A–119, as each standard by this proposed rule. provide necessary technical standards revised on February 19, 1998 (63 FR Table 3 lists those organizations for the FMHCSS. These proposed 8546) for consistency with the National providing the reference standards to be amendments would keep the FMHCSS Technology Transfer and Advancement incorporated. Table 4 lists new current with the industries that use Act of 1995 (Pub. L. 104–113; 110 Stat. these reference standards by 775) (NTTAA), requires Federal reference standards that previously were incorporating the latest edition of these agencies to use appropriate technical not referenced in the FMHCSS, and standards and new relevant standards. standards that are developed or adopted provides specific comments about some by private sector standards entities. of the standards. (Note: The reference DATES: Comment Due Date: December Section 15(b)(7) of OMB Circular A–119 standards in Table 4 are also listed in 29, 1998. encourages agencies to review, in a Table 2.) Table 5 lists those reference ADDRESSES: Interested persons are timely manner, their regulations that standards that would be deleted from invited to submit comments regarding may reference obsolete and outdated the FMHCSS. this proposed rule to the Rules Docket standards. In accordance with the Act Clerk, Office of the General Counsel, and these purposes, HUD is issuing II. Comments Requested Room 10276, Department of Housing these proposed amendments to the and Urban Development, 451 Seventh This proposed rule invites public FMHCSS for public comment. comment prior to the final issuance of Street SW, Washington, DC 20410. Through this proposed rule, HUD changes to the standards referenced in Communications should refer to the identifies those standards incorporated part 3280. Commenters are urged to above docket number and title. A copy by reference in the FMHCSS for which identify and address the particular of each communication submitted will it has evaluated updated voluntary standards for which comment is being be available for public inspection and consensus and industry standards and submitted. Commenters also may offer copying between 7:30 a.m. and 5:30 recommends adoption of updated p.m. weekdays at the above address. standards in accordance with section 11 suggestions for more appropriate or Facsimile (FAX) comments will not be of OMB Circular A–119. This proposed more current substitutions of specific accepted. rule only includes updates for those proposed standards. FOR FURTHER INFORMATION CONTACT: reference standards for which HUD is III. Reference Standards Currently In David R. Williamson, Director, Office of ready to accept a more recent edition. In Effect (Table 1) Consumer and Regulatory Affairs, Room those areas for which this rule is not 9156, Department of Housing and Urban proposing a more recent edition, HUD Table 1 lists those reference standards Development, 451 Seventh Street SW, considers future rulemaking to be more currently in effect in the FMHCSS. The Washington, DC 20410; telephone (202) appropriate. HUD intends to review the last column in Table 1 indicates those 708–6423 (this is not a toll-free currency and applicability of the sections of part 3280 in which the number). Persons with hearing or incorporated reference standards applicable standard is referenced.

TABLE 1.ÐLIST OF STANDARDS CURRENTLY REFERENCED IN 24 CFR PART 3280

24 CFR part 3280 Standards designation Date Title reference

AA ...... 1986 Specification for Aluminum Structures, Construction Manual 3280.304(b)(1). Section 1, Fifth Edition. AAMA 1503.1 ...... 1988 Voluntary Test Method for Thermal Transmittance and Con- 3280.508(e). densation Resistance of Windows, Doors, and Glazed Wall Sections. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58571

TABLE 1.ÐLIST OF STANDARDS CURRENTLY REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 Standards designation Date Title reference

AAMA 1701.2 ...... 1985 Primary Window and Sliding Glass Door Voluntary Standard for 3280.403(b) Utilization in Manufactured Housing. 3280.403(e) 3280.403(e)(2) 3280.404(b) AAMA 1702.2 ...... 1985 Swinging Exterior Passage Doors Voluntary Standard for Utiliza- 3280.405(b) tion in Manufactured Housing. 3280.405(e) 3280.405(e)(2) AAMA 1704 ...... 1985 Voluntary Standard Egress Window Systems for Utilization in 3280.404(b) Manufactured Housing. 3280.404(e) AFPA ...... 1991 National Design Specifications for Wood Construction With Sup- 3280.304(b)(1) plement, Design Values for Wood Construction. AFPA ...... 1992 Wood Structural Design Data ...... 3280.304(b)(1) AFPA ...... 1992 Design Values for Joists and Rafters, American Softwood Lum- 3280.304(b)(1) ber Standard Sizes. AISC ...... 1989 Specification for Structural Steel Buildings Allowable Stress De- 3280.304(b)(1) sign and Plastic Design. 3280.305(i)(1) AISI ...... 1989 Specification for the Design of Cold-Formed Steel Structural 3280.304(b)(1) Members. 3280.305(i)(1) AISI ...... 1974 Stainless Steel Cold-Formed Structural Design Manual ...... 3280.304(b)(1) 3280.305(i)(1) AISI ...... 1973 Manual for Structural Applications of Steel Cables for Buildings 3280.304(b)(1) AITC A190.1 ...... 1992 For Wood Products-Structural Glued Laminated Timber ...... 3280.304(b)(1) ANSI A208.1 ...... 1989 Wood Particleboard ...... 3280.304(b)(1) ANSI C73.17 ...... 1972 Dimensions of Caps, Plugs and Receptacles, Grounding Type ... 3280.803(g) ANSI Z21.1b ...... 1993 Household Cooking Gas Appliances ...... 3280.703 ANSI Z21.5.1 ...... 1992 Gas Clothes Dryers Type I ...... 3280.703 ANSI Z21.10 ...... 1992 Gas Water Heaters ...... 3280.707(d)(2). ANSI Z21.15 ...... 1992 Manually Operated Gas Valves for Appliances, Appliance Con- 3280.703. nector Valves and Hose End Valves. ANSI Z21.19 ...... 1992 Refrigerators Using Gas Fuel ...... 3280.703. ANSI Z21.20 ...... 1992 Automatic Gas Ignition Systems and Components ...... 3280.703. ANSI Z21.21 ...... 1992 Automatic Valves for Gas Appliances ...... 3280.703. ANSI Z21.22a ...... 1990 Relief Valves and Automatic Gas Shutoff Devices for Hot Water 3280.604(b)(2). Supply Systems. 3280.703. ANSI Z21.23a ...... 1991 Gas Appliance Thermostats ...... 3280.703. ANSI Z21.24 ...... 1992 Metal Connectors for Gas Appliances ...... 3280.703. ANSI Z21.40 ...... 1982 Gas Fired Absorption Summer Air Conditioning Appliances ...... 3280.703 3280.714(a)2. ANSI Z21.47 ...... 1992 Gas-Fired Central Furnaces ...... 3280.703. ANSI Z34.1 ...... 1982 For CertificationÐThird-Party Certification Program ...... 3280.405(e)(1). ANSI Z34.1 ...... 1987 For CertificationÐThird-Party Certification Program ...... 3280.403(e)(1). ANSI Z97.1 ...... 1984 Safety Performance Specifications and Methods of Test for 3280.113(b). Safety Glazing Materials Used in Buildings. 3280.304(b)(1). 3280.403(d)(1). 3280.607(b)(3)(iii). ANSI Z124.1 ...... 1991 Plastic Bathtubs Units With Addenda ...... 3280.604(b)(2). ANSI Z124.2a ...... 1990 Plastic Shower Receptors and Shower Stalls With Addendum .... 3280.604(b)(2). ANSI Z124.3a ...... 1990 Plastic Lavatories With Addendum ...... 3280.604(b)(2). ANSI Z124.4a ...... 1990 Plastic Water Closets, Bowls, and Tanks With Addendum ...... 3280.604(b)(2). ANSI/A190.1 AITC ...... 1992 For Wood Products, Structural Glued Laminated Timber ...... 3280.304(b)(1). ASME/A112.1.2 ...... 1991 Air Gaps in Plumbing Systems ...... 3280.604(b)(2) ANSI/A112.14.1 ...... 1975 Backflow Valves ...... 3280.604(b)(2). ANSI/A112 ASME 18.1M ...... 1989 Plumbing Fixture Fittings ...... 3280.604(b)(2). ANSI/A112 ASME 19.1M ...... 1987 Enameled Cast Iron Plumbing Fixtures ...... 3280.604(b)(2). ANSI/A112 ASME 19.2M ...... 1990 Vitreous China Plumbing Fixtures ...... 3280.604(b)(2). ANSI/A112 ASME 19.3M ...... 1987 Stainless Steel Plumbing Fixtures (Designed for Residential 3280.604(b)(2). Use). ANSI/A112 ASME 19.4M ...... 1984 Porcelain Enameled Formed Steel Plumbing Fixtures ...... 3280.604(b)(2). ANSI/A112 ASME 19.5M ...... 1979 Trim for Water Closet, Bowls, Tanks and Urinals ...... 3280.604(b)(2). ANSI/A112 ASME 19.7M ...... 1987 Whirlpool Bathtub Appliances ...... 3280.604(b)(2). ANSI/A112 ASME 19.8M ...... 1989 Suction Fittings for Use in Swimming Pools, Wading Pools, 3280.604(b)(2). Spas, Hot Tubs and Whirlpool Bathtub Appliances. ANSI/A112 ASME 21.3M ...... 1985 Hydrants for Utility and Maintenance Use ...... 3280.604(b)(2). ANSI/A112 ASME 26.1 ...... 1975 Water Hammer Arresters ...... 3280.604(b)(2) ANSI/B1. ASME 20.1 ...... 1983 Pipe Threads, General Purpose (Inch) ...... 3280.604(b)(2). 3280.703. 3280.705(e). 3280.706(d). ANSI/B16.3 ASME ...... 1992 Malleable Iron Threaded Fittings ...... 3280.604(b)(2). ANSI/B16.4 ASME ...... 1992 Gray Iron Threaded Fittings ...... 3280.604(b)(2). ANSI/B16.15 ASME ...... 1985 Cast Bronze Threaded Fittings, Classes 125 and 250 ...... 3280.604(b)(2). 58572 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

TABLE 1.ÐLIST OF STANDARDS CURRENTLY REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 Standards designation Date Title reference

ANSI/B16.18 ASME ...... 1984 Cast Copper Alloy Solder-Joint Pressure Fittings ...... 3280.604(b)(2). ANSI/B16.22 ASME ...... 1989 Wrought Copper and Copper Alloy Solder-Joint Pressure Fitting 3280.604(b)(2). ANSI/B16.23 ASME ...... 1992 Cast Copper Alloy Solder-Joint Drainage FittingsÐDWV ...... 3280.604(b)(2). ANSI/B16.26 ASME ...... 1988 Cast Copper Alloy Fittings for Flared Copper Tubes ...... 3280.604(b)(2). ANSI/B16.29 ASME ...... 1986 Wrought Copper and Wrought Copper Alloy Solder-Joint Drain- 3280.604(b)(2). age FittingsÐDWV. ANSI/B36.10 ASME ...... 1979 Welding and Seamless Wrought Steel Pipe ...... 3280.604(b)(2). 3280.703. 3280.705(b)(1). 3280.706(b)(1). ANSI/A135.AHA 4 ...... 1982 Basic Hardboard ...... 3280.304(b)(1). ANSI/A135.AHA 5 ...... 1988 Prefinished Hardboard Paneling ...... 3280.304(b)(1). ANSI/A135.AHA 6 ...... 1990 Hardboard Siding ...... 3280.304(b)(1). ANSI 210/ARI 240 ...... 1989 Unitary Air-Conditioning and Air-Source Heat Pump Equipment 3280.511(b) 3280.703 3280.714(a)(1) 3280.714(a)(1)(ii). 3280.714(a)(1) (iii). ANSI/14 NSF ...... 1990 Plastic Piping Components and Related Materials ...... 3280.604(b)(2). ANSI/24 NSF ...... 1988 Plumbing System Components for Manufactured Homes and 3280.604(b)(2). Recreation Vehicles. ANSI/I.S. 1 NWWDA ...... 1987 Wood Flush Doors ...... 3280.304(b)(1). 3280.405(c)(1). ANSI/I.S. 2 NWWDA ...... 1987 Wood Windows ...... 3280.304(b)(1). ANSI/I.S. 3 NWWDA ...... 1988 Wood Sliding Patio Doors ...... 3280.304(b)(1). ANSI/I.S. 4 NWWDA ...... 1981 Water Repellent Preservative Non-Pressure Treatment for 3280.304(b)(1). Millwork. APA E 30M ...... 1993 Design/Construction Guide, Residential and Commercial ...... 3280.304(b)(1). APA S 811M ...... 1990 Design and Fabrication of Plywood Curved Panels ...... 3280.304(b)(1). APA S 812P ...... 1992 Design and Fabrication of Glued Plywood Lumber Beams ...... 3280.304(b)(1). APA U 813K ...... 1990 Design and Fabrication of Plywood Stressed-Skin Panels ...... 3280.304(b)(1). APA U 814G ...... 1990 Design and Fabrication of Plywood Sandwich Panels ...... 3280.304(b)(1). APA H 815D ...... 1989 Design and Fabrication of All-Plywood Beams ...... 3280.304(b)(1). APA Y 510Q ...... 1993 Plywood Design Specification ...... 3280.304(b)(1). APA-PRP E±108P, E445N ...... 1989 Performance Standards and Policies for Structural Use Panels .. 3280.304(b)(1). APA E 30M ...... 1993 APA Design/Construction Guide, Residential and Commercial .... 3280.304(b)(1). ASCE 7 ...... 1988 American Society of Civil Engineering Minimum Design Loads 3280.304(b)(1). for Buildings and Other Structures. 3280.305(c)(1)(ii)(A). ASHRAE ...... 1989 ASHRAE Handbook of Fundamentals ...... 3280.508(a), (b). 3280.511(a)(1). ASME ...... 1986 ASME Boiler and Pressure Vessel Code, VIII, Division 1 ...... 3280.704(b)(2). ASSE 1001 ...... 1990 Performance Requirements for Pipe Applied Atmospheric Type 3280.604(b)(2). Vacuum Breakers. ASSE 1002 ...... 1986 Performance Requirements for Water Closet Flush Tank Fill 3280.604(b)(2). Valves (Ballcocks). ASSE 1006 ...... 1986 Plumbing Requirements for Residential Use (Household) 3280.604(b)(2). Dishwashers. ASSE 1007 ...... 1986 Performance Requirements for Home Laundry Equipment ...... 3280.604(b)(2). ASSE 1008 ...... 1986 Performance Requirements for Household Food Waste Disposer 3280.604(b)(2). Units. ASSE 1011 ...... 1982 Performance Requirements for Hose Connection Vacuum 3280.604(b)(2). Breakers. ASSE 1014 ...... 1990 Performance Requirements for Handheld Showers ...... 3280.604(b)(2). ASSE 1016 ...... 1988 Performance Requirements for Individual Thermostatic Pressure 3280.604(b)(2). Balancing and Combination Control for Bathing Facilities. ASSE 1017 ...... 1986 Performance Requirements for Temperature Activated Mixing 3280.604(b)(2). Valves for Primary Domestic Use. ASSE 1019 ...... 1978 Performance Requirements for Wall Hydrants, Frost Proof Auto- 3280.604(b)(2). matic Draining, Anti-Backflow Types. ASSE 1023 ...... 1979 Performance Requirements for Hot Water Dispensers, House- 3280.604(b)(2). hold Storage Type Electrical. ASSE 1025 ...... 1978 Performance Requirements for Diverters for Plumbing Faucets 3280.604(b)(2). with Hose Spray, Anti-Siphon Type, Residential Applications. ASSE 1037 ...... 1990 Performance Requirements for Pressurized Flushing Devices 3280.604(b)(2). (Flushometers) for Plumbing Fixtures. ASTM A53 ...... 1993 Standard Specification for Pipe, Steel, Black and Hot-Dipped 3280.604(b)(2). Zinc-Coated, Welded and Seamless. 3280.703. ASTM A74 ...... 1992 Standard Specification for Cast Iron Soil Pipe and Fittings ...... 3280.604(b)(2). ASTM A539 ...... 1990 Standard Specification for 1983 Electric-Resistance-Welded 3280.703 Coiled Steel Tubing for Gas and Fuel Oil Lines. 3280.705(b)(4). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58573

TABLE 1.ÐLIST OF STANDARDS CURRENTLY REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 Standards designation Date Title reference

ASTM B42 ...... 1993 Standard Specification for Seamless Copper Pipe, Standard 3280.604(b)(2) Sizes. 3280.703. ASTM B43 ...... 1991 Standard Specification for Seamless Red Brass Pipe, Standard 3280.604(b)(2) Sizes. 3280.705(b)(1). ASTM B88 ...... 1993 Standard Specification for Seamless Copper Water Tube ...... 3280.604(b)(2) 3280.703 3280.705(b)(3) 3280.706(b)(3). ASTM B251 ...... 1993 Standard Specification for General Requirements for Wrought 3280.604(b)(2) Seamless Copper and Copper Alloy Tube. 3280.703. ASTM B280 ...... 1993 Standard Specification for Seamless Copper Tube for Air Condi- 3280.703 tioning and Refrigeration Field Service. 3280.705(b)(3) 3280.706(b)(3). ASTM B306 ...... 1992 Standard Specification for Copper Drainage Tube (DWV) ...... 3280.604(b)(2). ASTM C36 ...... 1993 Standard Specification for Gypsum Wallboard ...... 3280.304(b)(1). ASTM C564 ...... 1988 Standard Specification for Rubber Gaskets for Cast Iron Soil 3280.604(b)(2) Pipe and Fittings. 3280.611(d)(5). ASTM D781 ...... 1973 Standard Test Methods for Puncture and Stiffness of Paper- 3280.304(b)(1) board, and Corrugated and Solid Fiberboard. 3280.305(g)(5). ASTM D2235 ...... 1988 Standard Specification for Solvent Cement for Acrylonitrile-Buta- 3280.604(b)(2). diene -Styrene (ABS) Plastic Pipe and Fittings. ASTM D2564 ...... 1991 Standard Specification for Solvent Cements for Poly (Vinyl Chlo- 3280.604(b)(2). ride) (PVC) Plastic Piping Systems. ASTM D2661 ...... 1991 Standard Specification for Acrylonitrile-Butadiene-Styrene (ABS) 3280.604(b)(2). Schedule 40 Plastic Drain, Waste, and Vent Pipe and Fittings. ASTM D2665 ...... 1991 Standard Specification for Poly (Vinyl Chloride) (PVC) Plastic 3280.604(b)(2). Drain, Waste, and Vent Pipe and Fittings. ASTM D2846 ...... 1992 Standard Specification for Chlorinated Poly (Vinyl Chloride) 3280.604(b)(2). (CPVC) Plastic Hot-and Cold-Water Distribution Systems. ASTM D3309 ...... 1992 Standard Specification for Polybutylene (PB) Plastic Hot-and 3280.604(b)(2). Cold-Water Distribution Systems. ASTM D3311 ...... 1992 Standard Specification for Drain, Waste, and Vent (DWV) Plastic 3280.604(b)(2). Fittings Patterns. ASTM D3953 ...... 1991 Standard Specification for Strapping, Flat Steel and Seals ...... 3280.306(g)(2) 3280.306(b)(2)(v). ASTM D4442 ...... 1992 Standard Test Methods for Direct Moisture Content Measure- 3280.304(b)(1). ment of Wood and Wood-Base Materials. ASTM D4444 ...... 1992 Standard Test Methods for Use and Calibration of Hand-Held 3280.304(b)(1). Moisture Meters. ASTM E±84 ...... 1991 Standard Test Method for Surface Burning Characteristics of 3280.203(a). Building Materials. ASTM E96 ...... 1993 Standard Test Methods for Water Vapor Transmission of 3280.504(a). Materials. ASTM E162 ...... 1990 Standard Test Method for Surface Flammability of Materials 3280.203(a). Using a Radiant Heat Energy Source. ASTM E773 ...... 1988 Standard Test Methods for Seal Durability of Sealed Insulating 3280.403(d)(2). Glass Units. ASTM E774 ...... 1992 Standard Specification for Sealed Insulating Glass Units ...... 3280.403(d)(2). ASTM E1333 ...... 1990 Standard Test Method for Determining Formaldehyde Levels 3280.406(b). from Wood Products Under Defined Test Conditions Using a Large Chamber. ASTM F628 ...... 1991 Standard Specification for Acrylonitrile-Butadiene-Styrene (ABS) 3280.604(b)(2). Schedule 40, Plastic Drain, Waste and Vent Pipe with a Cel- lular Core. CISPI 301 ...... 1990 Standard Specification for Hubless Cast Iron Soil Pipe and Fit- 3280.604(b)(2). tings for Sanitary and Storm Drain, Waste, and Vent Piping Applications. CISPI HSN ...... 1985 Specification for Neoprene Rubber Gaskets for HUB and Spigot 3280.611(d)(5)(iv). Cast Iron Soil Pipe and Fittings. FS WWP541E ...... 1980 Plumbing Fixtures (General Specifications) ...... 3280.604(b)(2). FS ZZR765B ...... 1970 Silicone Rubber, Low and High Temperature and Tear Resist- 3280.611(d)(5)(iv). ant, Conforming to Rubber, Silicone. HPMA HP SG ...... 1986 Structural Design Guide for Hardwood Plywood Wall Panels ...... 3280.304(b)(1). HPMA HP 1 ...... 1993 Interim Voluntary Standard for Hardwood and Decorative Ply- 3280.304(b)(1). wood. HUD UM 25d ...... 1973 Application and Fastening Schedule: Power-Driven, Mechani- 3280.304(b)(1). cally Driven and Manually Driven Fasteners. HUD 5945 USER ...... 1992 Overall U-Values and Heating/Cooling Loads Manufactured 3280.508(b). Homes, PNL 8006. IAPMO PS 2 ...... 1989 Material and Property Standard for Cast Brass and Tubing P- 3280.604(b)(2). Traps. 58574 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

TABLE 1.ÐLIST OF STANDARDS CURRENTLY REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 Standards designation Date Title reference

IAPMO PS 4 ...... 1990 Material and Property Standard for Drains for Prefabricated and 3280.604(b)(2). Precast Showers. IAPMO PS 5 ...... 1984 Material and Property Standard for Special Cast Iron Fittings ..... 3280.604(b)(2). IAPMO PS 9 ...... 1984 Material and Property Standard for Diversion Tees and Twin 3280.604(b)(2). Waste Elbow. IAPMO PS 14 ...... 1989 Material and Property Standard for Flexible Metallic Water Con- 3280.604(b)(2). nectors. IAPMO PS 23 ...... 1989 Material and Property Standard for Drainage Dishwasher 3280.604(b)(2). Airgaps. IAPMO PS 31 ...... 1991 Material and Property Standards for Backflow Prevention As- 3280.604(b)(2). semblies. IAPMO TSC 9 ...... 1992 Standard for Gas Supply Connectors for Manufactured Mobile 3280.703. Homes. IAPMO TSC 22 ...... 1985 Standard for Porcelain Enameled Formed Steel Plumbing Fix- 3280.604(b)(2). tures. IAS 3 ...... 1987 AGA Requirements for Gas Connectors for Connection of Fixed 3280.703. Appliances for Outdoor Installation, Park Trailers and Manu- factured (Mobile) Homes to the Gas Supply. IIT J 6461 ...... 1989 Development of Mobile Home Fire Test Methods to Judge the 3280.207(a)(4). Fire-Safe Performance of Foam Plastic. MIL L1054E ...... 1975 Liners, Case, and Sheet, Overwrap; Water-Vapor Proof or Wa- 3280.611(d)(5)(iv). terproof, Flexible. NFPA 31 ...... 1992 Installation of Oil-Burning ...... 3280.703. 1983 Equipment ...... 3280.707(f). NFPA 54 ...... 1992 Natural Fuel Gas Code ...... 3280.703. NFPA 58 ...... 1992 Standard for the Storage and Handling of Liquefied Petroleum 3280.703. Gases. 3280.704(b)(5)(i). NFPA 70 ...... 1993 National Electrical Code ...... 3280.801(a). 3280.801(b). NFPA 90B ...... 1993 Warm Air Heating and Air Conditioning Systems ...... 3280.703. NWWDA I.S. 3 ...... 1988 Wood Sliding Patio Doors ...... 3280.304(b)(1). NWWDA I.S. 4 ...... 1981 Water Repellent Preservative Non Pressure Treatment for Mill- 3280.405(c)(1). work. 3280.304(b)(2). PS 1 ...... 1983 Voluntary Product Standard, Construction and Industrial Ply- 3280.304(b)(1). wood. PS 2 ...... 1992 Performance Standard for Wood-Based Structural Use Panels .. 3280.304(b)(1). PS 20 ...... 1994 American Softwood Lumber Standard ...... 3280.304(b)(1). SAE J533b ...... 1972 Flares for Tubing ...... 3280.703. 3280.705(f)(1). 3280.705(f)(2). SJI ...... 1992 Standard Specification Load Tables and Weight Tables for Steel 3280.304(b)(1). Joists and Steel Joist Girders. TPI ...... 1985 Design Specifications for Metal Plate Connected Wood Trusses 3280.304(b)(1). UL 94 ...... 1991 Tests for Flammability of Plastic Materials for Parts in Devices 3280.715(e)(1). and Appliances. UL 103 ...... 1989 Chimneys, Factory-Built Residential Type and Building Heating 3280.703. Appliance. UL 109 ...... 1993 Tube Fittings for Flammable and Combustible Fluids, Refrigera- 3280.703. tion Service and Marine Use. UL 127 ...... 1992 Factory-Built Fireplaces ...... 3280.703. UL 174 ...... 1991 Household Electric Storage Tank Water Heaters ...... 3280.703. UL 181 ...... 1990 Factory-Made Air Ducts and ...... 3280.703. 1984 Connectors ...... 3280.715(e). UL 217 ...... 1993 Single and Multiple Station Smoke Detectors ...... 3280.208(c). UL 307A ...... 1990 Liquid Fuel-Burning Heating Appliances for Manufactured 3280.703. Homes and Recreational Vehicles. 3280.707(f). UL 307B ...... 1987 Gas Burning Heating Appliances for Mobile Homes and Rec- 3280.703. reational Vehicles. UL 311 ...... 1990 Roof Jacks for Manufactured Homes and Recreational Vehicles 3280.703. UL 441 ...... 1991 Gas Vents ...... 3280.703. UL 465 ...... 1987 Central Cooling Air Conditioners ...... 3280.703. UL 569 ...... 1990 Pigtail and Flexible Hose Connectors for LP-Gas ...... 3280.703. UL 737 ...... 1991 Fireplace Stoves ...... 3280.703. UL 1025 ...... 1991 Electric Air Heaters ...... 3280.703. UL 1042 ...... 1993 Electric Baseboard Heating Equipment ...... 3280.703. UL 1096 ...... 1988 Electric Central Air Heating Equipment ...... 3280.703. UL 1482 ...... 1988 Room Heaters Solid-Fuel Type ...... 3280.703. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58575

IV. Proposed Changes To Reference however, they are listed, along with the would impose new or significantly Standards (Table 2) reason for deletion, in Table 5. When altered requirements are on hold and are the most recent edition of a reference indicated by ‘‘H.’’ New reference Table 2 is the list of updated standard is being proposed, it is standards proposed to be incorporated standards being proposed. Those indicated by a ‘‘U.’’ If the current are indicated by an ‘‘N’’; the new reference standards that would be edition would be retained because it is standards are listed in Table 5. The deleted from HUD’s incorporation by the most current, it is indicated by a indicator is located just above the first reference do not appear in this table; ‘‘NC.’’ Updated reference standards that letter of the standards designation.

TABLE 2.ÐLIST OF PROPOSED STANDARDS TO BE REFERENCED IN 24 CFR PART 3280

24 CFR part 3280 ref- Standards designation Date Title erence

U AA ...... 1997 Specification for Aluminum Structures, Construction Manual 3280.304. Section 1. N AAMA/NWWDA 101/I.S.2±97 ..... 1997 Voluntary Specifications for Aluminum, Vinyl (PVC) and Wood 3280.304(b)(1). Windows and Glass Doors. 3280.405(c)(2). U AAMA 1503 ...... 1998 Voluntary Test Method for Thermal Transmittance and Con- 3280.508(e). densation Resistance of Windows, Doors, and Glazed Wall * 1503 used to be 1503.1 Sections. N AAMA 1600 ...... 1990 Voluntary Specification for Skylights ...... 3280.403(b). U AAMA 1701.2 ...... 1995 Primary Window and Sliding Glass Door Voluntary Standard for 3280.403(b). Utilization in Manufactured-Housing. 3280.403(e). 3280.403(e)(2). U AAMA 1702.2 ...... 1995 Swinging Exterior Passage Doors Voluntary Standard for Utiliza- 3280.405(b). tion in Manufactured Housing. 3280.405(e). 3280.405(e)(2). H AAMA 1704 ...... 1985 Voluntary Standard Egress Window Systems for Utilization in 3280.404(b). Manufactured Housing. 3280.404(e). U AFPA ...... 1997 National Design Specifications for Wood Construction, 1997 Edi- 3280.304(b)(1) tion, With Supplement, Design Values for Wood Construction. U AFPA ...... 1993 Design Values for Joists and Rafters, American Softwood Lum- 3280.304(b)(1). ber Standard Sizes. NC AFPA ...... 1992 Wood Structural Design Data, 1986 Edition with 1992 Revisions 3280.304(b)(1). NC AFPA ...... 1993 Span Tables for Joist and Rafters ...... 3280.304(b)(1). NC AISC ...... 1981 Specification for Structural Steel Buildings-Allowable Stress De- 3280.304(b)(1). sign and Plastic Design June 1, 1989. 3280.305(i)(1). U AISI ...... 1996 Specification for the Design of Cold-Formed Steel Structural 3280.304(b)(1). Members. 3280.305(i)(1). NC AISI ...... 1974 Stainless Steel Cold-Formed Structural Design Manual ...... 3280.304(b)(1). 3280.305(i)(1). NC AISI ...... 1973 Manual for Structural Applications of Steel Cables for Buildings 3280.304(b)(1). NC ANSI A190.1 AITC ...... 1992 For Wood Products-Structural Glue Laminated Timber ...... 3280.304(b)(1). U ANSI A208.1 ...... 1993 Wood Particleboard ...... 3280.304(b)(1). N ANSI A208.2 ...... 1994 Medium Density Fiberboard ...... 3280.304(b)(1). NC ANSI C72.1 ...... 1972 Electric Storage Water Heaters ...... 3280.707(d). NC ANSI C73.17 ...... 1972 Dimension of Caps, Plugs and Receptacles, Ground Type ...... 3280.803(g). U ANSI Z21.1 ...... 1996 Household Cooking Gas Appliances with supplement Z21.1a 3280.703. 1997. U ANSI Z21.5.1 ...... 1995 Gas Clothes Dryers Volume 1, Type 1 with supplement 3280.703. Z21.5.1a 1996. 58576 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

TABLE 2.ÐLIST OF PROPOSED STANDARDS TO BE REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 ref- Standards designation Date Title erence

U ANSI Z21.10 ...... 1993 Gas Water HeatersÐVolume 1 Storage Water Heaters with 3280.707(d)(2). Input Ratings of 75,000 BTU per hour or Less with supple- ment 1a 1994, 1b 1994, & 1c 1994. U ANSI Z21.15 ...... 1997 Manually Operated Gas Valves for Appliances, Appliance Con- 3280.703. nector Valves and Hose End Valves. U ANSI Z21.19 ...... 1995 Refrigerators Using Gas Fuel with supplement .19a in 1992 and 3280.703. .19b in 1995. U ANSI Z21.20 ...... 1997 Automatic Gas Ignition Systems and Components ...... 3280.703. U ANSI Z21.21 ...... 1995 Automatic Valves for Gas Appliances ...... 3280.703. NC ANSI Z21.22 ...... 1986 Relief Valves and Automatic Gas Shutoff Devices for Hot Water 3280.604(a). Supply Systems With Addendum Z21.22a±1990. 3280.703. U ANSI Z21.23 ...... 1993 Gas Appliance Thermostats with supplement 23a in 1994 and 3280.703. 23b in 1997. U ANSI Z21.24 ...... 1997 Connectors for Gas Appliances ...... 3280.703. U ANSI Z21.40.1 ...... 1996 Gas Fired Heat Activated, Air Conditioning and Heat Pump Ap- 3280.703. pliances with supplement .1a in 1997. 3280.714(a)(2). U ANSI Z21.47 ...... 1993 Gas-Fired Central Furnaces with supplements .47a in 1995 .47b 3280.703. in 1997. U ANSI Z21.64 ...... 1990 Direct Vent Central Furnaces With Addendum Z21.64a±1992 .... 3280.703. U ANSI Z34.1 ...... 1993 Third Party Certification ...... 3280.403(e)(1). 3280.405(e)(1). U ANSI Z124.1 ...... 1995 Plastic Bathtubs Units ...... 3280.604(a). U ANSI Z124.2 ...... 1995 Plastic Shower Receptors and Shower Stalls ...... 3280.604(a). U ANSI Z124.3 ...... 1995 Plastic Lavatories ...... 3280.604(a). U ANSI Z124.4 ...... 1996 Plastic Water Closets, Bowls, and Tanks ...... 3280.604(a). U ANSI/A135.4 AHA ...... 1995 Basic Hardboard ...... 3280.304(b)(1). U ANSI/A135.5 AHA ...... 1995 Prefinished Hardboard Paneling ...... 3280.304(b)(1). U ANSI 210/ARI 249 Air ...... 1994 Unitary Air-Conditioning & Source Heat Pump Equipment ...... 3280.511(b). 3280.703. 3280.714(a)(1). 3280.714(a)(1)(ii). 3280.714(a)(1)(iii). NC ANSI A112.1 ASME .2 ...... 1991 Air Gaps in Plumbing Systems ...... 3280.604(a). U ANSI A112. ASME 14.1 ...... 1990 Backflow Valves ...... 3280.604(a). * Reaffirmed 1990 U ANSI A112 ASME 18.1M ...... 1996 Plumbing Fixture Fittings ...... 3280.604(a). U ANSI A112 ASME 19.1M ...... 1994 Enameled Cast Iron Plumbing Fixtures ...... 3280.604(a). U ANSI A112 ASME 19.2M ...... 1995 Vitreous China Plumbing Fixtures ...... 3280.604(a). NC ANSI A112 ASME 19.3M ...... 1987 Stainless Steel Plumbing Fixtures Designed for Residential Use 3280.604(a). U ANSI/A112 ASME 19.4M ...... 1994 Porcelain Enameled Formed Steel Plumbing Fixtures ...... 3280.604(a). NC ANSI/A112 ASME 19.5M ...... 1979 Trim for Water Closet, Bowls, Tanks and Urinals ...... 3280.604(a). * Reaffirmed 1990 U ANSI/A112 ASME 19.7 ...... 1995 Whirlpool Bathtub Appliances ...... 3280.604(a). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58577

TABLE 2.ÐLIST OF PROPOSED STANDARDS TO BE REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 ref- Standards designation Date Title erence

NC ANSI/A112. ASME 19.8 ...... 1987 Suction Fittings for Use in Swimming Pools, Wading Pools, 3280.604(a). Spas, Hot Tubs and Whirlpool Bathtub Appliances. * Reaffirmed 1996 NC ANSI/A112 ASME 21.3M ...... 1985 Hydrants for Utility and Maintenance Use ...... 3280.604(a). * Reaffirmed 1995 NC ANSI/A112 ASME 26.1 ...... 1975 Water Hammer Arresters ...... 3280.604(a). NC ANSI/B1.20 ASME .1 ...... 1983 Pipe Threads, General Purpose (Inch) ...... 3280.604(a). * Reaffirmed 1992 3280.703. 3280.705(e). 3280.706(d). NC ANSI B16.3 ASME ...... 1992 Malleable Iron Threaded Fittings ...... 3280.604(a). NC ANSI B16.4 ASME ...... 1992 Gray Iron Threaded Fittings ...... 3280.604(a). NC ANSI B16.15 ASME ...... 1985 Cast Bronze Threaded Fittings ...... 3280.604(a). U ANSI/B16.18 ASME ...... 1994 Cast Copper Alloy Solder-Joint Pressure Fittings ...... 3280.604(a). U ANSI/B16.22 ASME ...... 1995 Wrought Copper and Copper Alloy Solder-Joint Pressure Fitting 3280.604(a). U ANSI/B16.29 ASME ...... 1994 Wrought Copper and Wrought Copper Alloy Solder-Joint Drain- 3280.604(a). age fittings DWV. U ANSI/B36.10 ASME M ...... 1996 Welding and Seamless Wrought Steel Pipe ...... 3280.604(a). 3280.703. 3280.705(b)(1). 3280.706(b)(1). U ANSI/14 NSF ...... 1996 Plastic Piping Components and Related Materials ...... 3280.604(a). U ANSI/24 NSF ...... 1988 Plumbing System Components for Manufactured Homes and 3280.604(a). Recreation Vehicles. * Reaffirmed 1996 N ANSI/61 NSF ...... 1997 Drinking Water Systems Components-Health Effects ...... 3280.604(b)(2). U ANSI/TPI 1 ...... 1995 National Design Standard for Metal Plate Connected Wood 3280.304(b)(1). Truss Construction. NC APA E 30M ...... 1993 Design/Construction Guide m Residential and Commercial ...... 3280.394(b)(1). NC APA S 811M ...... 1990 Design and Fabrication of Curved Panels ...... 3280.304(b)(1). NC APA S 812P ...... 1992 Design and Fabrication of Glued Plywood Lumber Beams ...... 3280.304(b)(1). NC APA U 813K ...... 1990 Design and Fabrication of Plywood Stressed Skin Panels ...... 3280.304(b)(1). NC APA U 814G ...... 1990 Design and Fabrication of Plywood Sandwich Panels ...... 3280.304(b)(1). U APA H 815E ...... 1995 Design and Fabrication of All Plywood Beams, Supplement 5 .... 3280.304(b)(1). U APA 51 ...... 1997 Plywood Design Specification ...... 3280.304(b)(1). U APA E 30M ...... 1996 APA Design Construction Guide, Residential and Commercial 3280.304(b)(1)(ii)(A). Structures. 3280.305(c)(2)(iii)(A). 3280.362(2)(c)(i)(E). H ASCE 7 ...... 1988 American Society of Civil Engineers, Minimum Design Loads for 3280.5 Buildings. 3280.304(b)(1) 3280.305(c)(1). U ASHRAE ...... 1997 ASHRAE Handbook of Fundamentals I.P. Edition ...... 3280.508 3280.511. NC ASME ...... 1992 ASME Boiler and Pressure Vessel Code, VIII, Pressure Vessels 3289.704(b)(2). Division 1. 58578 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

TABLE 2.ÐLIST OF PROPOSED STANDARDS TO BE REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 ref- Standards designation Date Title erence

NC ASSE 1001 ...... 1990 Performance Requirements for Pipe Applied Atmospheric Type 3280.604(a). Vacuum Breakers. NC ASSE 1002 ...... 1986 Performance Requirements for Water Closet Flush Tank Fill 3280.604(a). Valves (Ballcocks). NC ASSE 1006 ...... 1986 Plumbing Requirements for Residential Use (Household) Dish- 3280.604(a). washers. NC ASSE 1007 ...... 1986 Performance Requirements for Home Laundry Equipment ...... 3280.604(a). NC ASSE 1008 ...... 1986 Performance Requirements for Household Food Waste Disposer 3280.604(a). Units. U ASSE 1011 ...... 1993 Performance Requirements for Hose Connection Vacuum 3280.604(a). Breakers. NC ASSE 1014 ...... 1990 Performance Requirements for Hand Held Showers ...... 3280.604(a). NC ASSE 1016 ...... 1988 Performance Requirements For Individual Thermostatic Pres- 3280.604(a). sure Balancing and Combination Control for Bathing Facilities. NC ASSE 1017 ...... 1986 Performance Requirements for Temperature Activated Mixing 3280.604(a). Valves for Primary Domestic Use. U ASSE 1019 ...... 1995 Performance Requirements for Vacuum Breaker Wall Hydrants, 3280.604(a). Freeze Resistant, Automatic Draining Type. NC ASSE 1023 ...... 1979 Performance Requirements for Hot Water Dispensers, House- 3280.604(a). hold Storage Type. NC ASSE 1025 ...... 1978 Performance Requirements for Diverters for Plumbing for Fau- 3280.604(a). cets with Hose Spray, Anti-Siphon Type Residential Applica- tions. NC ASSE 1037 ...... 1990 Performance Requirements for Pressurized Flushing Devices 3280.604(a). (Flushometers) for Plumbing Fixtures. N ASSE 1051 ...... 1996 Air Admittance Valves for Plumbing Drainage Systems-Fixture 3280.604 and Branch Devices. 3280.611(d). U ASTM A53±96 ...... 1996 Standard Specification for Pipe, Steel, Black and Hot-Dipped, 3280.604(a) Zinc-Coated, Welded and Seamless. 3280.703. U ASTM A74±96 ...... 1996 Standard Specification for Cast Iron Soil Pipe and Fittings ...... 3280.604(a). U ASTM A539±96 ...... 1996 Standard Specification for Electric-Resistance-Welded Coiled 3280.703 Steel Tubing for Gas and Fuel Oil Lines. 3280.705(b)(4). U ASTM B42±96 ...... 1996 Standard Specification for Seamless Copper Pipe, Standard 3280.604(a) Sizes. 3280.703. NC ASTM B43± ...... 1991 Standard Specification for Seamless Red Brass Pipe Standard 3280.604(a) Sizes. 3280.705(b)(1). U ASTM B88±96 ...... 1996 Standard Specification for Seamless Copper Water Tube ...... 3280.604(a) 3280.703 3280.705(b)(3) 3280.706(b)(3). U ASTM B251±97 ...... 1997 Standard Specification for General Requirements for Wrought 3280.604(a) Seamless Copper and Copper-Alloy Tube. 3280.703. U ASTM B280±95a ...... 1995 Standard Specification for Seamless Copper Tube for Air Condi- 3280.703 tioning and Refrigeration Field Service. 3280.705(b)(3) 3280.706(b)(3). U ASTM B306±96 ...... 1996 Standards Specification for Copper Drainage Tube (DWV) ...... 3280.604(a). U ASTM C36±97 ...... 1997 Standard Specification for Gypsum Wallboard ...... 3280.304(b)(1). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58579

TABLE 2.ÐLIST OF PROPOSED STANDARDS TO BE REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 ref- Standards designation Date Title erence

U ASTM C564±95a ...... 1995 Standard Specification for Rubber Gaskets for Cast Iron Soil 3280.604(a). Pipe and Fittings. 3280.611(d)(5). N ASTM C920±95 ...... 1995 Standard Specification for Elastomeric Joint Sealants ...... 3280.611(d)(5). * Replaces Fed ZZR765B±1970 ...... H ASTM D781±73 ...... 1973 Standard Test Methods for Puncture and Stiffness of Paper 3280.304(b)(1). Board and Solid Fiberboard. 3280.305(g)(5). U ASTM D2235±96a ...... 1996 Standard Specification for Solvent Cement for Acrylic-Butadiene- 3280.604(a). Styrene (ABS) Plastic Pipe & Fittings. U ASTM D2564±96a ...... 1996 Standard Specification for Solvent Cements for Poly (Vinyl Chlo- 3280.604(a). ride) (PVC) Plastic Piping Systems. U ASTM D2661±97 ...... 1997 Standard Specification for Acrylonitrile-Butadiene-Styrene (ABS) 3280.604(a). Schedule 40 Plastic Drain, Waste and Vent Pipe and Fittings. U ASTM D2665±97 ...... 1997 Standard Specification for Poly (Vinyl Chloride) (PVC) Plastic 3280.604(a). Drain, Waste, and Vent Pipe & Fittings. U ASTM D2846/D2846M±97 ...... 1997 Standard Specification for Chlorinated Poly (Vinyl) Chloride 3280.604(a). (CPVC) Plastic Hot- and Cold-Water Distribution Systems. U ASTM D3311±94 ...... 1994 Standard Specification for Drain, Waste, and Vent (DWV) Plastic 3280.604(a). Fittings Patterns. NC ASTM D3953±91 ...... 1991 Standard Specification for Steel Strapping, Flat Steel and Seals 3280.306(g) 3280.306(b)(2)(v) . NC ASTM D4442±92 ...... 1992 Standard Test Methods for Direct Moisture Content Measure- 3280.304(b)(1). ment of Wood and Wood-Base Materials. * Reapproved 1997 ...... NC ASTM D4444 ...... 1992 Standard Test Method for Use and Calibration of Hand-Held 3280.304(b)(1). Moisture Meters. U ASTM D4635±95 ...... 1995 Standard Specification for Polyethylene Films Made From Low- 3280.611(d)(5). Density Polyethylene for General Use & Packaging Applications. * Replaces MIL L1054E±1975 ...... U ASTM E84±97a ...... 1997 Standard Test Method for Surface Burning Characteristics of 3280.203(a). Building Materials. U ASTM E96±95 ...... 1995 Standard Test Methods for Water Vapor Transmission of 3280.504(a). Materials. 3280.504(c). U ASTM E162±94 ...... 1994 Standard Test Method for Surface Flammability of Materials 3280.203(a). Using a Radiant Heat Energy Source. U ASTM E773±97 ...... 1997 Standard Test Methods for Accelerated Weathering of Sealed 3280.403(d)(2). Insulating Glass Units. U ASTM E774±97 ...... 1997 Standard Specification for the Classification of Durability of 3280.403(d)(3). Sealed Insulating Glass Units. U ASTM E1333±96 ...... 1996 Standard Test Method for Determining Formaldehyde Con- 3280.406(b). centrations in Air and Emission Rates from Wood Products Using a Large Chamber. U ASTM F628±97 ...... 1997 Standard Specification for Acrylonitrile-Butadiene-Styrene (ABS) 3280.604(a). Schedule 40, Plastic Drain Waste, and Vent Pipe with a Cel- lular Core. N ASTM F876±96 ...... 1996 Standard Specification for Crosslinked Polyethylene (PEX) 3280.604(a) Tubing. N ASTM F877±96 ...... 1996 Standard Specification for Crosslinked Polyethylene (PEX) Plas- 3280.604(a). tic Hot and Cold Water Distribution Systems. 58580 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

TABLE 2.ÐLIST OF PROPOSED STANDARDS TO BE REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 ref- Standards designation Date Title erence

N ASTM F1807±97 ...... 1997 Specification for Metal Insert Fittings Utilizing a Copper Crimp 3280.604(a). Ring for SDR±9 Crosslinked Polyethylene Tubing. U CISPI 301±97 ...... 1997 Standard Specification for Hubless Cast Iron Soil Pipe and Fit- 3280.604(a). tings for Sanitary and Storm Drain, Waste, and Vent Piping Applications. U CISPI 310 ...... 1997 Specification for Coupling For Use in Connection With Hubless 3280.604(a). Cast Iron Soil Pipe & Fittings for Sanitary and Storm Drain, Waste, and Vent Piping. NC CISPI HSN ...... 1985 Specification for Neoprene Rubber Gaskets for Hub and Spigot 3280.611(d)(5). Cast Iron Soil Pipe & Fittings. U HPVA HP SG±96 ...... 1996 Structural Design Guide for Hardwood Plywood Wall Panels De- 3280.304(b)(1). sign Guide. U HPVA HP 1 ...... 1995 For Hardwood and Decorative Plywood ...... 3280.304(b)(1). NC HUD±FHA UM±25d±73 ...... 1973 Application and Fastening Schedule: Power-Driven, Mechani- 3280.304(b)(1). cally Driven and Manually Driven Fasteners, Use of Materials Bulletin UM±25d. NC HUD 0005 User 945 ...... 1992 Overall U-Values and Heating/Cooling Loads Manufactured 3280.508(b). Homes PNL 8006. NC IAPMO PS 2±89 ...... 1989 Material and Property Standard for Cast Brass and Tubing P- 3280.604(a). Trap. NC IAPMO PS 4±90 ...... 1990 Material and Property Standard for Drains for Prefabricated and 3280.604(a). Precast Showers. U IAPMO PS 31±95 ...... 1995 Material and Property Standards for Backflow Prevention 3280.604(a). Assemblies. U IAPMO TCS 9±97 ...... 1997 Gas Supply Connectors for Manufactured Homes ...... 3280.703. U IAPMO TCS 22±97 ...... 1997 Porcelain Enameled Formed Steel Plumbing Fixtures ...... 3280.604(a). NC IAS 3 ...... 1987 AGA Requirements for Gas Connectors for Connection of Fixed 3280.703. Appliances for Outdoor Installation, Park Trailers and Manu- factured (Mobile) Homes to the Gas Supply. NC ITT J 6461 ...... 1989 Development of Mobile Home Fire Test Methods to Judge the 3280.207(a)(4). Fire-Safe Performance of Foam Plastic Sheathing and Cavity Insulation. U NFPA 31 ...... 1997 Installation of Oil-Burning Equipment ...... 3280.703. 3280.707(f). U NFPA 54 ...... 1996 Natural Fuel Gas Code ...... 3280.703. U NFPA 58 ...... 1995 Standard for the Storage and Handling of Liquefied Petroleum 3280.703. Gases. 3280.704(b)(5)(i). U NFPA 70 ...... 1996 National Electrical Code ...... 3280.801(a). 3280.801(b). U NFPA 90B ...... 1996 Standard for the Warm Air Heating and Air Conditioning 3280.703. Systems. N NFRC±100 ...... 1997 Procedure for Determining Fenestration Product U Factors April 3280.508(e). 1997 Edition. U NFPA 220 ...... 1995 Standard on Types of Building Construction ...... 3280.202(a)(4). 3280.202(a)(5). U PS 1±95 ...... 1995 Voluntary Product Standard, Construction and Industrial 3280.304(b)(1). Plywood. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58581

TABLE 2.ÐLIST OF PROPOSED STANDARDS TO BE REFERENCED IN 24 CFR PART 3280ÐContinued

24 CFR part 3280 ref- Standards designation Date Title erence

N PS 2±92 ...... 1992 Voluntary Product Standard Performance Standard for Wood- 3380.304(b)(1). Based Structural-Use Panels. *Replaces APA PRP 108±86 N PS 20 ...... 1994 American Softwood Lumber Standard ...... 3280.304(b)(1). U SAE J533b ...... 1992 Flares for Tubing ...... 3280.703 3280.705(f)(1) 3280.705(f)(2). NC SJI ...... 1992 Standard Specification Load Tables and Weight Tables for Steel 3280.304(b)(1). Joist and Steel Joist Girders. NC TPI ...... 1985 Design Specification for Metal Plate Connected Wood Trusses .. 3280.304(b)(1). U UL 94 ...... 1997 Test for Flammability of Plastic Materials for Parts in Devices 3280.715(e)(1). and Appliances. U UL 103 ...... 1996 Factory-Built Chimneys for Residential Type and Building Heat- 3280.703. ing Appliances. U UL 109 ...... 1997 Tube Fittings for Flammable and Combustible Fluids, Refrigera- 3280.703. tion Service & Marine Use. U UL 127 ...... 1998 Factory-Built Fireplaces ...... 3280.703. U UL 174 ...... 1997 Household Electric Storage Tank Water Heaters ...... 3280.703. U UL 181 ...... 1996 Factory Made Air Ducts and Air Connectors ...... 3280.703 3280.715(e). U UL 217 ...... 1997 Single and Multiple Station Smoke Alarms ...... 3280.208(c). U UL 307A ...... 1997 Liquid Fuel-Burning Heating Appliances for Manufactured 3280.703 Homes and Recreational Vehicles. 3280.707(f). U UL 307B ...... 1997 Gas Burning Heating Appliances for Manufactured Homes and 3280.703. Recreational Vehicles. U UL 311 ...... 1995 Roof Jacks for Manufactured Homes and Recreational Vehicles 3280.703. U UL 441 ...... 1997 Gas Vents ...... 3280.703. U UL 559 ...... 1993 Heat Pumps ...... 3280.703. U UL 569 ...... 1990 Pigtail and Flexible Hose Connectors for LP-Gas ...... 3280.703 3280.705. U UL 737 ...... 1997 Fireplace Stoves ...... 3280.703. U UL 1042 ...... 1997 Electric Baseboard Heating Equipment ...... 3280.703. N UL 1278 ...... 1994 Movable and Wall-or Ceiling-Hung Electric Room Heaters ...... 3280.703. *Replaces UL 1025±1991 U UL 1482 ...... 1997 Solid-Fuel Type Room Heaters ...... 3280.703. N UL 2021 ...... 1997 Fixed and Location-Dedicated Electric Room Heaters ...... 3280.703. * Replaces UL 1025±1991

V. Reference Standards Organizations facsimile (FAX) number. Requests for may be obtained from the Office of (Table 3) copies of the currently referenced Consumer and Regulatory Affairs, Table 3 contains the list of standards, or the proposed reference Department of Housing & Urban organizations issuing reference standards, should be addressed to the Development, 451 Seventh Street SW, standards that are incorporated into the organization that issues the standards. Washington, DC 20410. FMHCSS, and provides their acronym, Reference standards that are not address, telephone number, and available from their issuing organization 58582 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

TABLE 3. LIST OF ORGANIZATIONS PROVIDING STANDARDS REFERENCED IN 24 CFR PART 3280

AA Aluminum Association, 900 19th Street NW, Washington, DC 20006 ...... tel (202) 862±5100. fax (202) 862±5164 AAMA American Architectural Materials Association, 1540 East Dundee Road, Suite 310, Palatine, Illinois tel (708) 202±1350. 60067. fax (708) 202±1480. AFPA American Forest and Paper Association, 1111 19th Street NW, Washington, DC 20036 ...... tel (202) 463±2700. fax (202) 463±5180. AHA American Hardboard Association, 1210 West Northwest Highway, Palatine, Illinois 60067 ...... tel (847) 934±8800. fax (847) 934±8803. AISC American Institute of Steel Construction, 1 East Wacker Drive, Suite 3100, Chicago, Illinois 60601 .. tel (312) 670±2400. fax (312) 670±5403. AISI American Iron & Steel Institute, 1101 17th Street NW, Washington, DC 20036 ...... tel (202) 452±7100. fax (202) 463±6573. AITC American Institute of Timber Construction, 7012 South Revere Parkway, Suite 140, Englewood, Col- tel (303) 792±9559. orado 80112. fax (303) 792±0669. ANSI American National Standards Institute, 11 West 42nd Street, New York, New York 10036 ...... tel (212) 642±4900. fax (212) 398±0023. APA APA The Engineered Wood Association, 7011 South 19th Street, Tacoma, Washington 98411 ...... tel (253) 565±6600. fax (253) 565±7265. ASCE American Society of Civil Engineers, 1015 15th Street NW, Washington, DC 20005 ...... tel (202) 789±2200. fax (202) 289±6797. ASHRAE American Society for Heating, Refrig. & Air Conditioning Engineers, 1791 Tuillie Circle NE, Atlanta, tel (404) 636±8400. Georgia 30329. fax (404) 321±5478. ASME American Society of Mechanical Engineers, 345 East 47th Street, New York, New York 10017 ...... tel (212) 705±8570. fax (212) 705±8599. ASSE American Society of Sanitary Engineering, P.O. Box 40362, Bay Village, Ohio 44140 ...... tel (216) 835±3040. fax (216) 835±3488. ASTM American Society for Testing and Materials, 100 Barr Harbor Drive, West Conshohocken, Pennsyl- tel (610) 832±9500. vania 19428. fax (610) 832±9555. CISPI Cast Iron Soil Pipe Institute, 5959 Shallow Ford Road, Suite 419, Chattanooga, Tennessee 37421 .. tel (423) 892±0137. fax (423) 892±0817. FED General Services Administration, Specifications Building 197, Washington, DC 20407 ...... tel (202) 963±3177. fax (202) 557±8515. HPVA Hardwood Plywood and Veneer Association, 1825 Michael Faraday Drive, Reston, Virginia 22090 ... tel (703) 435±2900. fax (703) 435±2537. HUD Department of Housing and Urban Development, Office of Consumer & Regulatory Affairs, 451 Sev- tel (202) 708±6423. enth Street SW, Washington, DC 20410. fax (202) 708±4213. HUD USER HUD User, P.O. Box 6091, Rockville, Maryland 20849 ...... tel (301) 519±5154. fax (800) 245±2691. IAS International Approval Services, 8501 East Pleasant Valley Road, Cleveland, Ohio 44131 ...... tel (216) 524±4990. fax (216) 642±3463. IAPMO International Association of Plumbing and Mechanical Officials, 20001 Walnut Drive South, Walnut, tel (909) 595±8449. California 91789. fax (909) 594±1537. IIT IIT Research Institute, 10 West 35th Street, Chicago, Illinois 60616 ...... tel (312) 567±3000. fax (312) 567±4167. MIL Defense Printing Service Detachment Office, 700 Robbins Avenue, Building 4D, Philadelphia, Penn- tel (215) 697±2667. sylvania 19111. fax (215) 697±1462. NFPA National Fire Protection Association, Batterymarch Park, Quincy, Massachusetts 02269 ...... tel (617) 770±3000. fax (617) 770±0700. NFRC National Fenestration Rating Council, Incorporated, 1300 Spring Street, Suite 120, Silver Spring, tel (301) 589±6372. MD 20910. fax (301) 588±0854. NSF NSF International, P.O. Box 130140, Ann Arbor, Michigan 48113 ...... tel (313) 769±8010. fax (313) 769±0109. NWWDA National Wood Window & Door Association, 1400 East Touhy Avenue, Des Plaines, Illinois 60018 .. tel (847) 299±5200. fax (847) 299±1286. PS National Institute of Standards & Technology, Voluntary Product Standards, Gaithersburg, Maryland tel (301) 975±2000. 20810. fax (301) 926±1559. SAE Society of Automotive Engineers, 400 Commonwealth Drive, Warrendale, Pennsylvania 15096 ...... tel (412) 776±4841. fax (412) 776±0243. SJI Steel Joist Institute, 1205 48th Avenue North, Suite A, Myrtle Beach, South Carolina 29577 ...... tel (803) 626±1995. fax (803) 449±1343. TPI Truss Plate Institute, 583 D'Onofrio Drive, Suite 200, Madison, Wisconsin 53719 ...... tel (608) 833±5900. fax (608) 833 4360. UL Underwriters Laboratories, 333 Pfingsten Road, Northbrook, Illinois 60062 ...... tel (847) 272±8800. fax (847) 509±6257.

VI. New Reference Standards (Table 4) section 11 of OMB Circular A–119, HUD reference standards for which HUD is is proposing to incorporate the latest ready to accept a more recent edition. In In order to remain abreast of the edition of those reference standards and those areas for which this rule is not industries that use those reference incorporate new relevant reference proposing a more recent edition, HUD standards incorporated into the standards. However, this proposed rule considers future rulemaking to be more FMHCSS, and to be in accord with only includes updates for those appropriate. Those new reference Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules 58583 standards not previously incorporated Those reference standards being deleted into the FMHCSS are listed in Table 4. from the FMHCSS are listed in Table 5.

TABLE 4.ÐLIST OF NEW REFERENCE STANDARDS BEING PROPOSED

AAMA/NWWDA 101/I.S.2± 1997 Voluntary Specifications for Aluminum, Vinyl (PVC) and Wood 3280.304(b)(1). 97. Windows and Glass Doors. 3280.405(c)(2). The AAMA/NWWDA 101/I.S.2±97 standard would replace the NWWDA standards I.S.1, .2, .3, and .4. AAMA 1600 ...... 1990 Voluntary Specification for Skylights ...... 3280.403(b). ANSI/NSF 61 ...... 1997 Drinking Water Systems Components-Health Effects ...... 3280.604(b)(2). The requirements of the ANSI/NSF 61 standard were previously part of NSF 14, but would now be addressed separately. ASSE 1051 ...... 1996 Air Admittance Valves for Plumbing Drainage Systems-Fixture 3280.604. and Branch Devices. 3280.611(d). The ASSE 1051 standard would provide an alternative to the prescriptive requirements for anti-siphon trap vent devices that are specified in § 3280.611(d). ANSI A208.2 ...... 1994 Medium Density Fiberboard ...... 3280.304(b)(1). The ANSI A208.2 standard would incorporate the MDF standard that is used by the industry and establish it as the base level for the per- formance of this product. It would also codify a mandatory formaldehyde emission level for MDF. However, as this standard is currently being used by the industry, its incorporation is not believed to have either an economic or environmental impact. ASTM C920±95 ...... 1995 Standard Specification for Elastomeric Joint Sealants ...... 3280.611(d)(5). ASTM F876±96 ...... 1996 Standard Specification for Crosslinked Poluethylene (PEX) Tub- 3280.604(a). ing. ASTM F877±96 ...... 1996 Standard Specification for Crosslinked Poluethylene (PEX) Plas- 3280.604(a) tic Hot and Cold Water Distribution Systems. ASTM F1807±97 ...... 1997 Specification for Metal Insert Fittings Utilizing a Copper Crimp 3280.604(a). Ring for SDR±9 Crosslinked Polyethylene Tubing. ASTM F876, F877, and F1807 are being incorporated to provide an appropriate reference for the Crosslinked Polyethylene (PEX) systems currently being installed in manufactured homes. Present PEX installations require that HUD and DAPIAs verify that each system, which is the tubing and specific connectors, is listed for its intended use. With the availability of an appropriate fitting standard, this should no longer be nec- essary in all cases. Where fittings other than the metal insert type are desired, an appropriate listing of the system would still be required. HUD will consider incorporating other fitting standards recommended in response to this proposed rule change. NFRC±100 ...... 1997 Procedure for Determining Fenestration Product U Factors April 3280.508(e). 1997 Edition. The NFRC±100 standard would provide an alternative for those window manufacturers who used this method in order to comply with the mandatory requirements of other programs. PS 20 ...... 1994 American Softwood Lumber Standard ...... 3280.304(b)(1). UL 2021 ...... 1997 Fixed and Location-Dedicated Electric Room Heaters ...... 3280.703. *Replaces UL 1025±1991

TABLE 5.ÐLIST OF OBSOLETE REFERENCE STANDARDS BEING DELETED

ANSI/IS 1 NWWDA ...... 1987 Wood Flush Doors ...... 3280.304(b)(1). * Discontinued-replaced by AAMA/NWWDA 101/I.S.2±1997 ...... 3280.405(c)(2). ANSI/IS 2 NWWDA ...... 1987 Wood Windows ...... 3280.304(b)(1). * Discontinued-replaced by AAMA/NWWDA 101/I.S. 2±1997 ...... ANSI/IS 3 NWWDA ...... 1988 Wood Sliding Patio Doors ...... 3280.202(a)(4). * Discontinued-replaced by AAMA/NWWDA 101/I.S. 2±1997 ANSI/IS 4 NWWDA ...... 1981 Water Repellent Preservative Non-Pressure Treatment for Mill- 3280.304(b)(1). work. * Discontinued-replaced by AAMA/NWWDA 101/I.S. 2±1997 ...... APA PRP 108 ...... 1986 Performance Standards and Policies for Structural-Use Panels .. 3280.304(b)(1). * Discontinued-same as PS 2±1992 ...... ASTM D3309±92 ...... 1992 Standard Specification for Polybutylene (PB) Plastic Hot- & 3280.604(a). Cold-Water Distribution Systems. Polybutylene tubing is no longer being produced, and it is no longer being installed in manufactured homes. Accordingly, HUD is proposing to remove the standard ASTM D3309±92 from its standards. FED WWP541E ...... 1980 Plumbing Fixtures ...... 3280.604(a). * Discontinued-Replaced by ANSI Z124.1 1995 FED ZZR765B ...... 1970 Rubber Silicone ...... 3280.611(d)(5). * Discontinued-Replaced by ASTM C920±1995 IAPMO PS 5±94 ...... 1994 Material and Property Standard Special Cast Iron Fittings ...... 3280.604(a). * Discontinued MIL L1054E ...... 1975 Liners, Case, and Sheet Overwrap Water-Vapor Proof or Water- 3280.611(d)(5). proof Flexible. * Discontinued replaced by ASTM D4635±1995 UL 1025 ...... 1991 Electric Air Heaters ...... 3280.703. * Discontinued replaced by UL 1278±1994 and UL 2021±1997 58584 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Proposed Rules

VII. Findings and Certifications potential effects of this proposed rule the States, or on the distribution of and determined that it would not place power and responsibilities among the A. Unfunded Mandates Reform Act major burdens on manufactured home various levels of government. As a This rule does not impose any Federal manufacturers or their suppliers. In its result, the rule is not subject to review mandates on any State, local, or tribal evaluation, HUD noted that new or under the Order. governments, or on the private sector, updated references are being proposed VIII. Incorporation by Reference within the meaning of the Unfunded only for the purpose of remaining Mandates Reform Act of 1995 (Pub. L. abreast of the manufactured home Before HUD issues a final rule, these 104–4; approved March 22, 1995). industry. The inclusion of reference reference standards will be approved by B. Impact on the Environment standard changes that would impose the Director of the Federal Register for significant new requirements is not incorporation by reference in A Finding of No Significant Impact being addressed with this proposed accordance with 5 U.S.C. 552(a) and 1 with respect to the environment was rule. While HUD does not anticipate CFR Part 51. Copies of these standards made in accordance with HUD that this proposed rule would have a may be obtained from the organizations regulations in 24 CFR part 50 that significant economic impact on a listed in Table 3. implement section 102(2)(C) of the substantial number of small entities, National Environmental Policy Act of Catalog of Federal Domestic Assistance HUD specifically requests comments 1969 (42 U.S.C. 4223). The Finding is regarding alternatives to compliance The Catalog of Federal Domestic available for public inspection between that may be less burdensome on such Assistance number for Manufactured 7:30 a.m. and 5:30 p.m. weekdays in the entities. Home Construction and Safety Office of the Rules Docket Clerk, Office Standards is 14.171. of General Counsel, Room 10276, D. Federalism Impact Department of Housing and Urban List of Subjects in 24 CFR Part 3280 Development, 451 Seventh Street SW, The General Counsel, as the Fire Prevention, Housing Standards, Washington, DC 20410. Designated Official under section 6(a) of Incorporation by References, Executive Order 12612, Federalism, has Manufactured Homes. C. Impact on Small Entities determined that the policies contained The Secretary, in accordance with the in this proposed rule are covered by Authority: 42 U.S.C. 3535(d), 5403 and Regulatory Flexibility Act (5 U.S.C. section 604(d) of the National 5424. 605(b)), has reviewed this proposed rule Manufactured Housing Construction Dated: September 25, 1998. before publication and by approving it and Safety Standards Act of 1974, and Ira Peppercorn, certifies that this rule is not anticipated therefore, would not have substantial General Deputy Assistant Secretary for to have a significant economic impact direct effects on States or their political Housing. on a substantial number of small subdivisions, or the relationship [FR Doc. 98–29092 Filed 10–29–98; 8:45 am] entities. HUD has evaluated the between the Federal Government and BILLING CODE 4210±72±P federal register October 30,1998 Friday Rules Federal AcquisitionRegulations;Final 48 CFRChapter1,etal. Administration and Space National Aeronautics Administration General Services Defense Department of Part V 58585 58586 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

DEPARTMENT OF DEFENSE ACTION: Summary presentation of final DATES: For effective dates and comment and interim rules, and technical dates, see separate documents which GENERAL SERVICES amendments and corrections. follow. ADMINISTRATION FOR FURTHER INFORMATION CONTACT: The SUMMARY: This document summarizes FAR Secretariat, Room 4035, GS NATIONAL AERONAUTICS AND the Federal Acquisition Regulation Building, Washington, DC 20405, (202) SPACE ADMINISTRATION (FAR) rules issued by the Civilian 501–4755, for information pertaining to Agency Acquisition Council and the status or publication schedules. For 48 CFR Chapter 1 Defense Acquisition Regulations Council in this Federal Acquisition clarification of content, contact the Federal Acquisition Circular 97±09; Circular (FAC) 97–09. A companion analyst whose name appears in the table Introduction document, the Small Entity Compliance below in relation to each FAR case or AGENCIES: Department of Defense (DoD), Guide (SECG), follows this FAC. The subject area. Please cite FAC 97–09 and General ServicesAdministration (GSA), FAC, including the SECG, may be specific FAR case number(s). Interested and National Aeronautics and located on the Internet at http:// parties may also visit our website at SpaceAdministration (NASA). www.arnet.gov/far. http://www.arnet.gov/far.

Item Subject FAR case Analyst

I ...... Taxpayer Identification Numbers (Interim) ...... 97±003 Olson. II ...... Electronic Commerce in Federal Procurement (Interim) ...... 97±304 Nelson. III ...... Alternate Dispute ResolutionÐ1996 ...... 97±015 O'Neill. IV ...... Pay-As-You-Go Pension Costs ...... 89±012 Olson. V ...... Rehabilitation Act, Workers With Disabilities ...... 96±610 O'Neill. VI ...... Civil Defense Costs ...... 97±036 Nelson. VII ...... Costs Related to Legal/Other Proceedings ...... 95±020 Nelson. VIII ...... Service Contracts ...... 97±302 Olson. IX ...... Payment Due Dates ...... 97±609 Olson. X ...... Technical Amendments.

SUPPLEMENTARY INFORMATION: Services Administration is planning to until the Administrator of OFPP Summaries for each FAR rule follow. establish an Internet based system by designates the single, Governmentwide For the actual revisions and/or early 1999 that can be used by ordering point of entry. Federal procurement amendments to these FAR cases, refer to officials to obtain this information. In systems that employ electronic the specific item number and subject set the meantime, the information can be commerce shall apply nationally and forth in the documents following these obtained from most FSS contract price internationally recognized standards item summaries. lists or by requesting it directly from the that broaden interoperability and ease Federal Acquisition Circular 97–09 FSS contractor prior to placing an the electronic interchange of amends the Federal Acquisition order.) information. Regulation (FAR) as specified below: Item II—Electronic Commerce in Item III—Alternative Dispute Item I—Taxpayer Identification Federal Procurement (FAR Case 97– Resolution—1996 (FAR Case 97–015) Numbers (FAR Case 97–003) 304) This final rule amends FAR 6.302–3, This interim rule amends FAR Parts 1, This interim rule revises FAR Subpart 24.202, 33.2, and the clause at 52.233– 4, 13, 14, 15, and 52 to implement 4.5 and makes associated changes to 1 to implement the Administrative Subsection (i) of the Debt Collection FAR Parts 2, 5, 13, and 14, to implement Dispute Resolution Act of 1996 (Pub. L. Improvement Act of 1996 (Pub. L. 104– Section 850 of the National Defense 104–320) and Section 4321(a)(7) of the 134) and Section 1022 of the Taxpayer Authorization Act for Fiscal Year 1998 Clinger-Cohen Act of 1996 (Pub. L. 104– Relief Act of 1997 (Pub. L. 105–32). The (Pub. L. 105–85) to eliminate the 106). The rule makes clear the authority rule clarifies requirements for obtaining preference for electronic commerce to contract with a neutral person as an Taxpayer Identification Number (TIN) within Federal agencies to be conducted exception to requirements for full and information from contractors and on the Federal Acquisition Computer open competition; revises requirements forwarding the information to payment Network (FACNET) Architecture. In for certification of a claim under the offices; specifies that TIN information addition, this interim rule promotes the Administrative Dispute Resolution Act may be used by the Government to use of cost-effective procedures and to conform to the requirements under collect and report on any delinquent processes that employ electronic the Contract Disputes Act; and specifies amounts arising out of the contractor’s commerce in the conduct and that certain dispute resolution relationship with the Government; and administration of Federal procurement communications are exempt from clarifies and updates requirements for systems. In order to facilitate access to disclosure under the Freedom of reporting contract information and Federal procurements, Section 850 Information Act. payment information to the Internal mandates that a single Governmentwide Revenue Service. point of entry be used. Once the Item IV—Pay-As-You-Go Pension Costs (Orders under Federal Supply Administrator of the Office of Federal (FAR Case 89–012) Schedule (FSS) contracts. Ordering Procurement Policy (OFPP) designates The interim rule published as Item I officials are required to provide the FSS the single Governmentwide point of of FAC 84–44 is converted to a final rule contractor’s TIN (and other information) entry, the FAR will be changed with amendments at FAR 15.408, to the payment office for each order accordingly. FACNET qualifies as the 31.001, 31.205–6, and the clause at under an FSS contract. The General single, Governmentwide point of entry 52.215–15. The rule amends the FAR for Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58587 consistency with 48 CFR 9904.412, Cost period that begins in one fiscal year and DEPARTMENT OF DEFENSE accounting standard for composition ends in the next fiscal year. This and measurement of pension cost (CAS authority remains the same for civilian GENERAL SERVICES 412), and 48 CFR 9904.413, Adjustment agencies other than NASA. ADMINISTRATION and allocation of pension cost (CAS 413). CAS 412 and CAS 413 relate to Item IX—Payment Due Dates (FAR Case NATIONAL AERONAUTICS AND accounting for pension costs under 97–609) SPACE ADMINISTRATION negotiated Government contracts. This final rule amends FAR Subpart 48 CFR Parts 1, 4, 13, 14, 15, and 52 Item V—Rehabilitation Act, Workers 32.9 to clarify that agencies may amend With Disabilities (FAR Case 96–610) the clauses at FAR 52.232–25, Prompt [FAC 97±09; FAR Case 97±003; Item I] The interim rule published as Item V Payment, and 52.232–26, Prompt of FAC 97–05 is converted to a final rule Payment for Fixed-Price Architect- RIN 9000±AI14 without change. The rule implements Engineer Contracts, to specify a period Department of Labor regulations at 41 shorter than 30 days (but not less than Federal Acquisition Regulation; CFR 60–741 regarding affirmative action 7 days) for making contract invoice Taxpayer Identification Numbers to employ, and advance in employment, payments. qualified individuals with disabilities. AGENCIES: Department of Defense (DoD), Item X—Technical Amendments General Services Administration (GSA), Item VI—Civil Defense Costs (FAR Case and National Aeronautics and Space 97–036) Amendments are being made at Administration (NASA). sections 1.106, 6.302–3, 14.205–1, This final rule deletes the civil ACTION: Interim rule with request for 14.407–4, 15.404–1, 19.102, 19.1004, defense cost principle at FAR 31.205–5, comments. as this guidance is no longer deemed 32.705–1, 33.104, 36.601–4, 41.103, necessary. The acceptability of civil 52.212–5, 52.244–6, and 53.228 in order SUMMARY: The Civilian Agency defense costs will remain governed by to update references and make editorial Acquisition Council and the Defense the allocability, allowability, and changes. Acquisition Regulations Council have reasonableness criteria discussed in Dated: October 22, 1998. agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to FAR Part 31. Edward C. Loeb, implement Subsection (i) of the Debt Item VII—Costs Related to Legal/Other Director, Federal Acquisition Policy Division. Collection Improvement Act of 1996 Proceedings (FAR Case 95–020) FAC 97–09 and Section 1022 of the Taxpayer Relief This final rule amends FAR 31.205– Act of 1997, and to clarify the 47, Costs related to legal and other Federal Acquisition Circular (FAC) Government requirements for reporting proceedings, to clarify the allowability 97–09 is issued under the authority of of contract information and payment of costs incurred for qui tam suits in the Secretary of Defense, the information to the Internal Revenue which the Government does not Administrator of General Services, and Service (IRS). This regulatory action was intervene. This rule is consistent with the Administrator for the National not subject to Office of Management and audit guidance issued by the Defense Aeronautics and Space Administration. Budget review under Executive Order Contract Audit Agency on August 24, 12866, dated September 30, 1993, and is 1995. Certain Government contracting Unless otherwise specified, all not a major rule under 5 U.S.C. 804. Federal Acquisition Regulation (FAR) personnel and contractors may have had EFFECTIVE DATE: October 30, 1998. common misinterpretations of the and other directive material contained Comment Date: Comments should be language at FAR 31.205–47 prior to in FAC 97–09 are effective December 29, submitted to the FAR Secretariat at the August 24, 1995. For qui tam legal fees 1998, except for Items I, II, V, and X address shown below on or before incurred prior to August 24, 1995, if the which are effective October 30, 1998. December 29, 1998, to be considered in Government contracting personnel and Dated: October 23, 1998. the formulation of a final rule. the contractor shared a common Eleanor R. Spector, ADDRESSES: Interested parties should misinterpretation of the language at FAR Director, Defense Procurement. submit written comments to: General 31.205–47, the contracting officer, in Services Administration FAR Secretariat consultation with his or her legal Ida M. Ustad, (MVR), 800 F Street, NW, Room 4035, advisors, should determine the Deputy Associate Administrator, Office of Attn: Ms. Laurie Duarte, Washington, appropriate treatment of those costs on Acquisition Policy, General Services DC 20405. a case-by-case basis. Administration. E–Mail comments submitted over the Item VIII—Service Contracts (FAR Case Dated: October 16, 1998. Internet should be addressed to: 97–302) Tom Luedtke, farcase.97–[email protected] This final rule revises FAR 32.703–3 Acting Associate Administrator for Please cite FAC 97–09, FAR case 97– and amends 37.106 to implement Procurement, National Aeronautics and 003 in all correspondence related to this Section 801 of the National Defense Space Administration. case. Authorization Act for Fiscal Year 1998 [FR Doc. 98–28954 Filed 10–29–98; 8:45 am] FOR FURTHER INFORMATION CONTACT: The (Pub. L. 105–85). Section 801 provides BILLING CODE 6820±EP±U FAR Secretariat, Room 4035, GS that the Secretary of Defense, the Building, Washington, DC 20405, (202) Secretary of a military department, or 501–4755, for information pertaining to the Secretary of Transportation with status or publication schedules. For respect to the Coast Guard, when it is clarification of content, contact Mr. not operating as a service in the Navy, Jeremy Olson at (202) 501–0692. Please may enter into a contract for cite FAC 97–09, FAR case 97–003. procurement of severable services for a SUPPLEMENTARY INFORMATION: 58588 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

A. Background with 5 U.S.C. 610. Such comments must Dated: October 22, 1998. Subsection (i) of the Debt Collection be submitted separately and should cite Edward C. Loeb, Improvement Act of 1996 (Pub. L. 104– 5 U.S.C 601, et seq. (FAR Case 97–003), Director, Federal Acquisition, Policy Division. 134) amends 31 U.S.C. 7701 by in correspondence. Therefore, 48 CFR Parts 1, 4, 13, 14, requiring that the head of each Federal C. Paperwork Reduction Act 15, and 52 are amended as set forth agency require each contractor doing below: business with the Government to The Paperwork Reduction Act (44 1. The authority citation for 48 CFR furnish its Taxpayer Identification U.S.C. 3501, et seq.) is deemed to apply Parts 1, 4, 13, 14, 15, and 52 continues Number (TIN) and by requiring the because the interim rule contains to read as follows: Government to disclose its intent to use information collection requirements. Authority: 40 U.S.C. 486(c); 10 U.S.C. such number for purposes of collecting The interim rule decreases the chapter 137; and 42 U.S.C. 2473(c). and reporting on any delinquent collection requirements currently amounts. Section 1022 of the Taxpayer approved under Office of Management PART 1ÐFEDERAL ACQUISITION Relief Act of 1997 (Pub. L. 105–32) and Budget (OMB) Control Number REGULATIONS SYSTEM amends 26 U.S.C. 6041A(d) to add 9000–0046, since the rule deletes the 1.106 [Amended] payments for services provided by provisions at FAR 52.214–2 and 52.215– corporations to the types of payments 4. 2. Section 1.106 is amended in the that the Government is required to table following the introductory report to the IRS using Form 1099. OMB Control Numbers 9000–0097 paragraph by removing the FAR This interim rule expands the scope and 9000–0136 approved the segments at 52.214–2 and 52.215–4 and of FAR Subpart 4.9 to require the information collection requirements that their corresponding OMB Control contractor to provide a TIN for debt existed in the FAR at 52.204–3 and Numbers. collection purposes. Prior to this 52.212–3, respectively, prior to revision, FAR Subpart 4.9 required the implementation of this interim rule. PART 4ÐADMINISTRATIVE MATTERS contractor to provide a TIN only to Revisions to these provisions required 3. Section 4.203 is revised to read as facilitate Government reporting of by the interim rule have no net impact follows: certain contract information and on the collection requirements currently payment information to the IRS. The approved. 4.203 Taxpayer identification information. rule also deletes the provisions at FAR (a) If the contractor has furnished a 52.214–2, Type of Business D. Determination to Issue an Interim Taxpayer Identification Number (TIN) Organization–Sealed Bidding, and Rule when completing the solicitation 52.215–4, Type of Business A determination has been made under provision at 52.204–3, Taxpayer Organization, since the information Identification, or paragraph (b) of the requested in these provisions is the authority of the Secretary of Defense solicitation provision at 52.212–3, duplicative of the information requested (DoD), the Administrator of General Offeror Representations and in the provisions at FAR 52.204–3, Services (GSA), and the Administrator Certifications—Commercial Items, the Taxpayer Identification, and 52.212–3, of the National Aeronautics and Space contracting officer shall, unless Offeror Representations and Administration (NASA) that urgent and otherwise provided in agency Certifications–Commercial Items, as compelling reasons exist to promulgate procedures, attach a copy of the amended by this rule. In addition, this this interim rule without prior completed solicitation provision as the rule clarifies and updates the opportunity for public comment. This last page of the copy of the contract sent requirement for Government agencies to rule implements Subsection (i) of the to the payment office. obtain contract information and Debt Collection Improvement Act of payment information to facilitate 1996 (Pub. L. 104–134), which was (b) If the TIN or type of organization issuance of Form 1099 and other reports effective upon enactment on April 25, is derived from a source other than the to the IRS. 1996; and Section 1022 of the Taxpayer provision at 52.204–3 or 52.212–3(b), Relief Act of 1997 (Pub. L. 105–32), the contracting officer shall annotate the B. Regulatory Flexibility Act last page of the contract or order which applies to payments made after forwarded to the payment office to state The interim rule is not expected to December 31, 1997. An interim rule is have a significant economic impact on the contractor’s TIN and type of necessary to ensure that changes are organization, unless this information is a substantial number of small entities made to the FAR to address the within the meaning of the Regulatory otherwise provided to the payment statutory requirements to notify office in accordance with agency Flexibility Act, 5 U.S.C. 601, et seq., contractors that the TIN may be used for because the rule merely clarifies procedures. debt collection purposes, and to add existing requirements for contractors to (c) If the contractor provides its TIN payments for services provided by submit TINs, requires the Government or type of organization to the to advise contractors of the potential corporations to the types of payments contracting officer after award, the debt collection usage of the TIN, and subject to IRS Form 1099 reporting contracting officer shall forward the clarifies and updates requirements for requirements. However, pursuant to information to the payment office Government reporting of contract Public Law 98–577 and FAR 1.501, within 7 days of its receipt. information and payment information to public comments received in response (d) Federal Supply Schedule the IRS. An Initial Regulatory Flexibility to this interim rule will be considered contracts. Each contracting officer that Analysis has, therefore, not been in the formation of the final rule. places an order under a Federal Supply performed. Comments are invited from List of Subjects in 48 CFR Parts 1, 4, 13, Schedule contract (see Subpart 8.4) small businesses and other interested 14, 15, and 52 shall provide the TIN and type of parties. Comments from small entities organization information to the payment concerning the affected FAR subparts Government procurement. office in accordance with paragraph (b) also will be considered in accordance of this section. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58589

(e) Basic ordering agreements and 4.902 General. Identification, in solicitations that are indefinite-delivery contracts (other than (a) Debt collection. 31 U.S.C. 7701(c) not conducted under the procedures of Federal Supply Schedule contracts). requires each contractor doing business Part 12, unless the TIN, type of (1) Each contracting officer that issues with a Government agency to furnish its organization, and common parent a basic ordering agreement or indefinite- TIN to that agency. 31 U.S.C. 3325(d) information for each offeror will be delivery contract (other than a Federal requires the Government to include, obtained from some other source (e.g., Supply Schedule contract) shall provide with each certified voucher prepared by centralized database) in accordance to contracting officers placing orders the Government payment office and with agency procedures. under the agreement or contract— submitted to a disbursing official, the (i) A copy of the agreement or contract TIN of the contractor receiving payment PART 13ÐSIMPLIFIED ACQUISITION with a copy of the completed under the voucher. The TIN may be PROCEDURES solicitation provision at 52.204–3 or used by the Government to collect and 5. Section 13.106–3 is amended by 52.212–3(b) as the last page of the report on any delinquent amounts adding paragraph (e) to read as follows: agreement or contract; or arising out of the contractor’s (ii) The contractor’s TIN and type of relationship with the Government. 13.106±3 Award and documentation. organization information. (b) Information reporting to the IRS. * * * * * (2) Each contracting officer that places The TIN is also required for Government (e) Taxpayer Identification Number. If an order under a basic ordering reporting of certain contract information an oral solicitation is used, the agreement or indefinite-delivery (see 4.903) and payment information contracting officer shall ensure that the contract (other than a Federal Supply (see 4.904) to the IRS. copy of the award document sent to the Schedule contract) shall provide the payment office is annotated with the TIN and type of organization 4.903 Reporting contract information to the IRS. contractor’s Taxpayer Identification information to the payment office in Number (TIN) and type of organization accordance with paragraph (a) or (b) of (a) 26 U.S.C. 6050M, as implemented (see 4.203), unless this information will this section. in 26 CFR, requires heads of Federal be obtained from some other source 4. Subpart 4.9 is revised to read as executive agencies to report certain (e.g., centralized database). The follows: information to the IRS. contracting officer shall disclose to the (b)(1) The required information Subpart 4.9ÐTaxpayer Identification contractor that the TIN may be used by Number Information applies to contract modifications— (i) Increasing the amount of a contract the Government to collect and report on Sec. awarded before January 1, 1989, by any delinquent amounts arising out of 4.900 Scope of subpart. $50,000 or more; and the contractor’s relationship with the 4.901 Definitions. Government (31 U.S.C. 7701(c)(3)). 4.902 General. (ii) Entered into on or after April 1, 4.903 Reporting contract information to the 1990. PART 14ÐSEALED BIDDING IRS. (2) The reporting requirement also 4.904 Reporting payment information to the applies to certain contracts and 14.201±6 [Amended] IRS. modifications thereto in excess of 6. Section 14.201–6 is amended by 4.905 Solicitation provision. $25,000 entered into on or after January removing and reserving paragraph Authority: 40 U.S.C. 486(c); 10 U.S.C. 1, 1989. (b)(2). chapter 137; and 42 U.S.C. 2473(c). (c) The information to report is— (1) Name, address, and TIN of the PART 15ÐCONTRACTING BY Subpart 4.9ÐTaxpayer Identification contractor; NEGOTIATION Number Information (2) Name and TIN of the common parent (if any); 15.209 [Amended] 4.900 Scope of subpart. (3) Date of the contract action; 7. Section 15.209 is amended by This subpart provides policies and (4) Amount obligated on the contract removing and reserving paragraph (d). procedures for obtaining— action; and (a) Taxpayer Identification Number (5) Estimated contract completion PART 52ÐSOLICITATION PROVISIONS (TIN) information that may be used for date. AND CONTRACT CLAUSES debt collection purposes; and (d) Transmit the information to the 8. Section 52.204–3 is revised to read (b) Contract information and payment IRS through the Federal Procurement as follows: information for submittal to the Data System (see Subpart 4.6 and payment office for Internal Revenue implementing instructions). 52.204±3 Taxpayer identification. Service (IRS) reporting purposes. 4.904 Reporting payment information to As prescribed in 4.905, insert the 4.901 Definitions. the IRS. following provision: Common parent, as used in this 26 U.S.C. 6041 and 6041A, as Taxpayer Identification (Oct 1998) subpart, means that corporate entity that implemented in 26 CFR, in part, require (a) Definitions. owns or controls an affiliated group of payors, including Government agencies, Common parent, as used in this provision, corporations that files its Federal to report to the IRS, on Form 1099, means that corporate entity that owns or income tax returns on a consolidated payments made to certain contractors. controls an affiliated group of corporations basis, and of which the offeror is a 26 U.S.C. 6109 requires a contractor to that files its Federal income tax returns on a member. provide its TIN if a Form 1099 is consolidated basis, and of which the offeror is a member. Taxpayer Identification Number required. The payment office is (TIN), as used in this subpart, means the Taxpayer Identification Number (TIN), as responsible for submitting reports to the used in this provision, means the number number required by the IRS to be used IRS. required by the Internal Revenue Service by the offeror in reporting income tax (IRS) to be used by the offeror in reporting and other returns. The TIN may be 4.905 Solicitation provision. income tax and other returns. The TIN may either a Social Security Number or an The contracting officer shall insert the be either a Social Security Number or an Employer Identification Number. provision at 52.204–3, Taxpayer Employer Identification Number. 58590 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

(b) All offerors must submit the through (b)(5) of this provision to comply DEPARTMENT OF DEFENSE information required in paragraphs (d) with debt collection requirements of 31 through (f) of this provision to comply with U.S.C. 7701(c) and 3325(d), reporting GENERAL SERVICES debt collection requirements of 31 U.S.C. requirements of 26 U.S.C. 6041, 6041A, and ADMINISTRATION 7701(c) and 3325(d), reporting requirements 6050M, and implementing regulations issued of 26 U.S.C. 6041, 6041A, and 6050M, and NATIONAL AERONAUTICS AND implementing regulations issued by the IRS. by the Internal Revenue Service (IRS). If the resulting contract is subject to the (2) The TIN may be used by the SPACE ADMINISTRATION payment reporting requirements described in Government to collect and report on any Federal Acquisition Regulation (FAR) 4.904, delinquent amounts arising out of the 48 CFR Parts 2, 4, 5, 13, 14, and 32 the failure or refusal by the offeror to furnish offeror’s relationship with the Government [FAC 97±09; FAR Case 97±304; Item II] the information may result in a 31 percent (31 U.S.C. 7701(c)(3)). If the resulting reduction of payments otherwise due under contract is subject to the payment reporting RIN 9000±AI10 the contract. requirements described in FAR 4.904, the (c) The TIN may be used by the TIN provided hereunder may be matched Federal Acquisition Regulation; Government to collect and report on any with IRS records to verify the accuracy of the Electronic Commerce in Federal delinquent amounts arising out of the Procurement offeror’s relationship with the Government offeror’s TIN. (31 U.S.C. 7701(c)(3)). If the resulting (3) Taxpayer Identification Number (TIN). AGENCIES: Department of Defense (DoD), contract is subject to the payment reporting b TIN: llllllllllllllll General Services Administration (GSA), requirements described in FAR 4.904, the b TIN has been applied for. and National Aeronautics and Space TIN provided hereunder may be matched b TIN is not required because: with IRS records to verify the accuracy of the Administration (NASA). b Offeror is a nonresident alien, foreign offeror’s TIN. ACTION: Interim rule with request for (d) Taxpayer Identification Number (TIN). corporation, or foreign partnership that does comments. b TIN:. llllllllllllllll not have income effectively connected with b TIN has been applied for. the conduct of a trade or business in the SUMMARY: The Civilian Agency b TIN is not required because: United States and does not have an office or Acquisition Council and the Defense b Offeror is a nonresident alien, foreign place of business or a fiscal paying agent in Acquisition Regulations Council have corporation, or foreign partnership that does the United States; agreed on an interim rule amending the not have income effectively connected with b Offeror is an agency or instrumentality Federal Acquisition Regulation (FAR) to the conduct of a trade or business in the of a foreign government; United States and does not have an office or implement Section 850 of the National b Offeror is an agency or instrumentality place of business or a fiscal paying agent in Defense Authorization Act for Fiscal the United States; of the Federal Government. Year 1998 by removing Federal b Offeror is an agency or instrumentality (4) Type of organization. Acquisition Computer Network b of a foreign government; Sole proprietorship; (FACNET) specific terms and b b Offeror is an agency or instrumentality Partnership; requirements and replacing them with b of the Federal Government. Corporate entity (not tax-exempt); more flexible electronic commerce (e) Type of organization. b Corporate entity (tax-exempt); policies. This regulatory action was not b Sole proprietorship; b b Government entity (Federal, State, or subject to Office of Management and Partnership; local); b Corporate entity (not tax-exempt); Budget review under Executive Order b b Foreign government; Corporate entity (tax-exempt); b 12866, dated September 30, 1993, and is b Government entity (Federal, State, or International organization per 26 CFR not a major rule under 5 U.S.C. 804. local); 1.6049–4; EFFECTIVE DATE: October 30, 1998. b Foreign government; b Other lllllllllllllll b International organization per 26 CFR Comment Date: Comments should be (5) Common parent. submitted to the FAR Secretariat at the 1.6049–4; b Offeror is not owned or controlled by a b Other lllllllllllllll address shown below on or before common parent; December 29, 1998, to be considered in (f) Common parent. b Name and TIN of common parent: b Offeror is not owned or controlled by a the formulation of a final rule. Name llllllllllllllllll common parent as defined in paragraph (a) ADDRESSES: Interested parties should of this provision. TIN llllllllllllllllll b submit written comments to: General Name and TIN of common parent: * * * * * Services Administration, FAR llllllllllllllllll Name Secretariat (MVR), 1800 F Street, NW, TIN llllllllllllllllll 52.214±2 [Reserved] Room 4035, Attn: Ms. Laurie Duarte, (End of provision) 10. Section 52.214–2 is removed and Washington, DC 20405. 9. Section 52.212–3 is amended by reserved. E-Mail comments submitted over the revising the date of the provision and Internet should be addressed to: paragraph (b) to read as follows: 52.215±4 [Reserved] farcase.97–[email protected] Please cite FAC 97–09, FAR case 97– 52.212±3 Offeror representations and 11. Section 52.215–4 is removed and certificationsÐCommercial items. 304, in all correspondence related to reserved. this case. * * * * * [FR Doc. 98–28955 Filed 10–29–98; 8:45 am] FOR FURTHER INFORMATION CONTACT: The Offeror Representations and Certifications— BILLING CODE 6820±EP±U FAR Secretariat, Room 4035, GS Commercial Items (Oct 1998) Building, Washington, DC 20405, (202) * * * * * 501–4755, for information pertaining to (b) Taxpayer Identification Number (TIN) status or publication schedules. For (26 U.S.C. 6109, 31 U.S.C. 7701). (Not clarification of content, contact Ms. applicable if the offeror is required to provide Linda K. Nelson, Procurement Analyst, this information to a central contractor registration database to be eligible for award.) at (202) 501–1900. Please cite FAC 97– (1) All offerors must submit the 09, FAR case 97–304. information required in paragraphs (b)(3) SUPPLEMENTARY INFORMATION: Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58591

A. Background Government. FACNET qualifies as the C. Paperwork Reduction Act This interim rule revises FAR Subpart single, Governmentwide point of entry The Paperwork Reduction Act does 4.5 and makes associated changes to until the Administrator of the Office of not apply because the changes to the FAR Parts 2, 5, 13, 14, and 32 to Federal Procurement Policy designates FAR do not impose recordkeeping implement Section 850 of the National the single, Governmentwide point of requirements or collections of Defense Authorization Act for Fiscal entry. information from offerors, contractors, Year 1998 (Pub. L. 105–85). Section 850 B. Regulatory Flexibility Act or members of the public that require amends Titles 10, 15, 40, and 41 of the the approval of the Office of United States Code to eliminate the This interim rule is not expected to Management and Budget under 44 preference for electronic commerce have a significant negative impact on a U.S.C. 3501, et seq. within Federal agencies to be conducted substantial number of small entities on the Federal Acquisition Computer within the meaning of the Regulatory D. Determination to Issue an Interim Network (FACNET) Architecture. Flexibility Act, 5 U.S.C. 601, et seq., Rule Additionally, Section 850 provides a because the rule is more flexible than A determination has been made under more flexible electronic commerce the current FAR policy regarding the the authority of the Secretary of Defense policy by promoting the use of cost- Federal electronic commerce (DoD), the Administrator of General effective procedures and processes that architecture. It may be easier for some Services (GSA), and the Administrator employ electronic commerce in the small entities to conduct business with of the National Aeronautics and Space conduct and administration of Federal the Federal Government over the World Administration (NASA) that urgent and procurement systems and the use of Wide Web, for instance, than using a compelling reasons exist to promulgate nationally and internationally value-added network to conduct this interim rule without prior recognized standards that broaden business over FACNET. Since this may opportunity for public comment. This interoperability and ease the electronic result in a positive impact on small action is necessary to implement interchange of information. In order to entities, an Initial Regulatory Flexibility Section 850 of Public Law 105–85, facilitate access to Federal procurement Analysis (IRFA) has been performed and which eliminates the preference for opportunities, Section 850 mandates is summarized as follows: electronic commerce within Federal that a single, Governmentwide point of The objectives of the rule are (1) to agencies to be conducted on the Federal entry be used that will provide promote the use of cost-effective procedures Acquisition Computer Network universal public access to procurement and processes that employ electronic (FACNET) Architecture. Section 850 opportunities Governmentwide. In the commerce in the conduct and administration became effective on May 17, 1998. report submitted to Congress by the of Federal procurement systems, and (2) to However, pursuant to Public Law 98– President’s Management Council apply nationally and internationally 577 and FAR 1.501, public comments Electronic Processes Initiatives recognized standards that broaden received in response to this interim rule Committee entitled ‘‘Electronic interoperability and ease the electronic will be considered in the formation of Commerce For Buyers and Sellers,’’ the interchange of information. These objectives the final rule. Committee endorsed a World Wide are stated in Section 850 of Public Law 105– List of Subjects in 48 CFR Parts 2, 4, 5, Web-based electronic system that would 85. The legal authority to use electronic commerce for Government contracting 13, 14, and 32 provide the private sector direct access actions was confirmed in General Accounting Government procurement. to Federal procurement opportunities at Office (GAO) Advisory Opinion B–238449. a single location. The opinion concluded that electronic Dated: October 22, 1998. In an effort to distribute acquisition- transactions can create legally binding Edward C. Loeb, related information to industry more contractual obligations in accordance with 31 Director, Federal Acquisition Policy Division. quickly and economically, an electronic U.S.C. 1501. The interim rule applies to all Therefore, 48 CFR Parts 2, 4, 5, 13, 14, posting system is now being tested by large and small entities that do business or and 32 are amended as set forth below: several Federal agencies. This system are planning to do business with the 1. The authority citation for 48 CFR will permit buyers to post solicitations Government. The ability to use electronic Parts 2, 4, 5, 13, 14, and 32 continues and other pertinent information, in architectures other than FACNET, such as the to read as follows: addition to notices, directly to the World Wide Web, to conduct electronic Internet, thus giving sellers access to commerce will increase competition by Authority: 40 U.S.C. 486(c); 10 U.S.C. this information through a single, improving access to Federal contracting chapter 137; and 42 U.S.C. 2473(c). Governmentwide point of entry. If opportunities for the more than 72,995 vendors currently doing business with the PART 2ÐDEFINITIONS OF WORDS testing demonstrates that this electronic Government, particularly small businesses, AND TERMS posting system is capable of providing as well as many other vendors that find effective access to notices and access to bidding opportunities difficult 2. Section 2.101 is amended by solicitations through a single point of under the current system. adding, in alphabetical order, the entry, consideration will be given by the definition ‘‘Electronic commerce’’; Administrator of OFPP to designating it A copy of the IRFA has been revising the definition ‘‘Federal as the ‘‘single, Governmentwide point of submitted to the Chief Counsel for Acquisition Computer Network entry,’’ and the FAR will be changed Advocacy of the Small Business (FACNET) Architecture’’; and removing accordingly. Administration and may be obtained the definitions ‘‘Full FACNET’’, In the meantime, FACNET is the from the FAR Secretariat. Comments are ‘‘Governmentwide FACNET’’, and Governmentwide system that provides invited. Comments from small entities ‘‘Interim FACNET’’ to read as follows: universal user access, employs concerning the affected FAR subparts nationally and internationally also will be considered in accordance 2.101 Definitions. recognized data formats, and allows the with 5 U.S.C. 610. Such comments must * * * * * electronic data interchange of be submitted separately and should cite Electronic commerce means electronic acquisition information between the 5 U.S.C. 601, et seq. (FAC 97–09, FAR techniques for accomplishing business private sector and the Federal Case 97–304), in correspondence. transactions including electronic mail or 58592 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations messaging, World Wide Web to restrict the use of electronic solicitations are used, or when technology, electronic bulletin boards, commerce. Contracting officers may providing access to a notice of proposed purchase cards, electronic funds supplement electronic transactions by contract action through the single, transfer, and electronic data using other media to meet the Governmentwide point of entry and the interchange. requirements of any contract action notice permits the public to respond to * * * * * governed by the FAR (e.g., transmit hard the solicitation electronically. Federal Acquisition Computer copy of drawings). * * * * * Network (FACNET) Architecture is a (b) Agencies may exercise broad (iv) * * * Contracting offices using Governmentwide system that provides discretion in selecting the hardware and electronic systems for public posting universal user access, employs software that will be used in conducting that are not accessible outside the nationally and internationally electronic commerce. However, as installation shall periodically publicize recognized data formats, and allows the required by Section 30 of the OFPP Act the methods for accessing such electronic data interchange of (41 U.S.C. 426), the head of each agency, information. after consulting with the Administrator acquisition information between the * * * * * private sector and the Federal of OFPP, shall ensure that systems, 5. Section 5.102 is amended by Government. FACNET qualifies as the technologies, procedures, and processes revising paragraphs (a)(2) and (a)(7) to single, Governmentwide point of entry used by the agency to conduct read as follows: pending designation by the electronic commerce— Administrator of the Office of Federal (1) Are implemented uniformly 5.102 Availability of solicitations. Procurement Policy (OFPP). throughout the agency, to the maximum (a) * * * extent practicable; * * * * * (2) Provide copies of a solicitation (2) Are implemented only after issued under other than full and open PART 4ÐADMINISTRATIVE MATTERS considering the full or partial use of competition to firms requesting copies existing infrastructures, (e.g., the that were not initially solicited, but only 3. Subpart 4.5, consisting of sections Federal Acquisition Computer Network after advising the requester of the 4.500 through 4.502, is revised to read (FACNET)); determination to limit the solicitation to as follows: (3) Facilitate access to Government a specified firm or firms as authorized acquisition opportunities by small Subpart 4.5ÐElectronic Commerce in under Part 6 of the FAR; Contracting business concerns, small disadvantaged business concerns, and women-owned * * * * * Sec. small business concerns; (7) If electronic commerce is 4.500 Scope of subpart. employed in the solicitation process, 4.501 Definitions. (4) Include a means of providing widespread public notice of acquisition availability of the solicitation may be 4.502 Policy. limited to the electronic medium. Authority: 40 U.S.C. 486(c); 10 U.S.C. opportunities through the single, chapter 137; and 42 U.S.C. 2473(c). Governmentwide point of entry and a * * * * * means of responding to notices or 6. Section 5.202 is amended by 4.500 Scope of subpart. solicitations electronically; and revising paragraph (a)(13), by removing This subpart provides policy and (5) Comply with nationally and (a)(14), and by redesignating (a)(15) as procedures for the establishment and internationally recognized standards (a)(14). The revised text reads as use of electronic commerce in Federal that broaden interoperability and ease follows: the electronic interchange of acquisition as required by Section 30 of 5.202 Exceptions. the Office of Federal Procurement information, such as standards Policy (OFPP) Act (41 U.S.C. 426). established by the National Institute of * * * * * Standards and Technology. (a) * * * 4.501 Definitions. (c) Before using electronic commerce, (13) The proposed contract action— Electronic data interchange (EDI), as the agency head shall ensure that the (i) Is for an amount not expected to used in this subpart, means a technique agency systems are capable of ensuring exceed the simplified acquisition for electronically transferring and authentication and confidentiality threshold; storing formatted information between commensurate with the risk and (ii) Will be made through FACNET or computers utilizing established and magnitude of the harm from loss, another means that provides access to published formats and codes, as misuse, or unauthorized access to or the notice of proposed contract action authorized by the applicable Federal modification of the information. through the single, Governmentwide Information Processing Standards. point of entry; and Single, Governmentwide point of PART 5ÐPUBLICIZING CONTRACT (iii) Permits the public to respond to entry, as used in this subpart, means the ACTIONS the solicitation electronically; or one point of entry to be designated by 4. Section 5.101 is amended by * * * * * the Administrator of OFPP that will revising paragraph (a)(2)(ii) and the last 7. Section 5.203 is amended by allow the private sector to electronically sentence of (a)(2)(iv) to read as follows: revising paragraph (b) to read as follows: access procurement opportunities Governmentwide. 5.101 Methods of disseminating 5.203 Publicizing and response time. information. * * * * * 4.502 Policy. * * * * * (b) The contracting officer shall (a) The Federal Government shall use (a) * * * establish a solicitation response time electronic commerce whenever (2) * * * that will afford potential offerors a practicable or cost-effective. The use of (ii) The contracting officer need not reasonable opportunity to respond to— terms commonly associated with paper comply with the display requirements each proposed contract action transactions (e.g., ‘‘copy,’’ ‘‘document,’’ of this section when the exemptions at (including actions via FACNET or for ‘‘page,’’ ‘‘printed,’’ ‘‘sealed envelope,’’ 5.202(a)(1), (a)(4) through (a)(9), or which the notice of proposed contract and ‘‘stamped’’) shall not be interpreted (a)(11) apply, when oral or FACNET action is accessible through the single, Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58593

Governmentwide point of entry), in an PART 13ÐSIMPLIFIED ACQUISITION simplified acquisition threshold for amount estimated to be greater than PROCEDURES providing widespread public notice of $25,000, but not greater than the acquisition opportunities and offerors simplified acquisition threshold; or each 11. Section 13.003 is amended by are provided a means of responding to contract action for the acquisition of removing paragraph (c); redesignating the solicitation electronically; or commercial items in an amount paragraphs (d) through (i) as (c) through (h), respectively; and revising newly * * * * * estimated to be greater than $25,000. 15. Section 13.106–1 is amended by The contracting officer should consider redesignated paragraphs (f) and (h)(3) to read as follows: revising paragraphs (c)(1)(ii) and (f) to the circumstances of the individual read as follows: acquisition, such as the complexity, 13.003 Policy. 13.106±1 Soliciting competition. commerciality, availability, and * * * * * urgency, when establishing the (f) Agencies shall maximize the use of * * * * * solicitation response time. electronic commerce when practicable (c) * * * * * * * * and cost-effective (see Subpart 4.5). (1) * * * Drawings and lengthy specifications can (ii) Oral solicitation is more efficient 5.202, 5.203, 5.205, 5.207 [Amended] be provided off-line in hard copy or than soliciting through available 8. In addition to the amendments set through other appropriate means. electronic commerce alternatives; and forth above, in Subpart 5.2, remove the * * * * * * * * * * term ‘‘contract action’’ or ‘‘contract (h) * * * (f) Inquiries. An agency should actions’’ and add ‘‘proposed contract (3) Consider all quotations or offers respond to inquiries received through action’’ or ‘‘proposed contract actions’’, that are timely received. For evaluation any medium (including FACNET) if respectively, in the following places: of quotations or offers received doing so would not interfere with the a. Section 5.202(a)(2), (a)(3), (a)(4), electronically, see 13.106–2(b)(3); and efficient conduct of the acquisition. For (a)(5), (a)(6), (a)(7), (a)(8) (twice), (a)(9), * * * * * an acquisition conducted through (a)(10), (a)(11) (twice), (a)(12) (4 times), 12. Section 13.102 is amended by FACNET, an agency must respond to and (a)(14); revising the introductory text of telephonic or facsimile inquiries only if b. Section 5.203 introductory paragraph (a) to read as follows: it is unable to receive inquiries through paragraph, (a) introductory text, (c), (d), 13.102 Source list. FACNET. (e) (twice), and (g); (a) Each contracting office should 16. Section 13.106–2 is amended by c. Section 5.205(d)(2); maintain a source list (or lists, if more revising the introductory text of paragraph (b)(3) to read as follows: d. Section 5.207(c)(2)(xi), (e)(3) convenient). A list of new supply (twice), and (h). sources may be obtained from the 13.106±2 Evaluation of quotations or 9. Section 5.301 is amended by Procurement Marketing and Access offers. revising paragraph (b)(7) to read as Network (PRO-Net) of the Small * * * * * follows: Business Administration. The list (b) * * * should identify the status of each source (3) For acquisitions conducted using 5.301 General. (when the status is made known to the FACNET or a method that permits contracting office) in the following * * * * * electronic response to the solicitation, categories: (b) * * * the contracting officer may— (7) The contract action— * * * * * 13. Section 13.104 is amended by * * * * * (i) Is for an amount not greater than revising the first sentence of paragraph 17. Section 13.106–3 is amended by the simplified acquisition threshold; (b) to read as follows: revising paragraph (c) to read as follows: (ii) Was conducted by using FACNET, 13.106±3 Award and documentation. or access to the notice of proposed 13.104 Promoting competition. * * * * * contract action was provided through * * * * * the single, Governmentwide point of (b) If using simplified acquisition (c) Notification. For acquisitions that entry; and procedures and not using either do not exceed the simplified acquisition FACNET or providing access to the threshold and for which automatic (iii) Permitted the public to respond notice of proposed contract action notification is not provided through to the solicitation electronically; or through the single, Governmentwide FACNET or an electronic commerce * * * * * point of entry, maximum practicable method that employs widespread 10. Section 5.503 is amended by competition ordinarily can be obtained electronic public notice, notification to revising paragraph (a)(2) to read as by soliciting quotations or offers from unsuccessful suppliers shall be given follows: sources within the local trade area. only if requested or required by 5.301. *** * * * * * 5.503 Procedures. 14. Section 13.105 is amended by (a) * * * revising paragraph (a)(1) to read as 13.307 [Amended] (2) The contracting officer shall use follows: 18. Section 13.307 is amended in the SF 1449 for paper solicitations. The paragraph (b)(1) by removing ‘‘other 13.105 Synopsis and posting electronic means,’’ and inserting SF 1449 shall be used to make awards requirements. ‘‘electronically,’’. or place orders unless the award/order (a) * * * is made by using electronic commerce (1)(i) FACNET is used for an PART 14ÐSEALED BIDDING or by using the Governmentwide acquisition at or below the simplified commercial purchase card for acquisition threshold; or 19. Section 14.205–1 is amended by micropurchases. (ii) The single, Governmentwide point revising the second sentence of * * * * * of entry is used at or below the paragraph (a) to read as follows: 58594 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

14.205±1 Establishment of lists. 501–4755, for information pertaining to List of Subjects in 48 CFR Parts 6, 24, (a) * * * This rule need not be status or publication schedules. For 33, and 52 clarification of content, contact Mr. Jack followed, however, when the Government procurement. requirements of the contracting office O’Neill, Procurement Analyst, at (202) can be obtained through use of 501–3856. Please cite FAC 97–09, FAR Dated: October 22, 1998. simplified acquisition procedures (see case 97–015. Edward C. Loeb, Director, Federal Acquisition Policy Division. part 13); the requirements are SUPPLEMENTARY INFORMATION: nonrecurring; or electronic commerce Therefore, 48 CFR Parts 6, 24, 33, and methods are used that transmit A. Background 52 are amended as set forth below: solicitations or notices of procurement This final rule amends FAR Parts 6, 1. The authority citation for 48 CFR opportunities automatically to all 24, 33, and 52 to implement the Parts 6, 24, 33, and 52 continues to read interested sources. * ** Administrative Dispute Resolution Act as follows: * * * * * of 1996 (Pub. L. 104–320) and Section Authority: 40 U.S.C. 486(c); 10 U.S.C. 14.400 [Amended] 4321(a)(7) of the Clinger-Cohen Act of chapter 137; and 42 U.S.C. 2473(c). 1996 (Pub. L. 104–106). The rule makes 20. Section 14.400 is amended by clear the authority to contract with a PART 6ÐCOMPETITION removing ‘‘contract’’ and inserting neutral person as an exception to REQUIREMENTS ‘‘contracts’’. requirements for full and open 2. Section 6.302–3 is amended by PART 32ÐCONTRACT FINANCING competition, revises requirements for revising paragraph (a)(2)(iii) to read as certification of a claim under the follows: 32.1103 [Amended] Administrative Dispute Resolution Act 21. Section 32.1103 is amended in to conform to the requirements under 6.302±3 Industrial mobilization; paragraph (a) by removing ‘‘13.003(f)’’ the Contract Disputes Act, and specifies engineering, developmental, or research and inserting ‘‘13.003(e)’’. that certain dispute resolution capability; or expert services. [FR Doc. 98–28956 Filed 10–29–98; 8:45 am] communications are exempt from (a) * * * BILLING CODE 6820±EP±U disclosure under the Freedom of (2) * * * Information Act. (iii) To acquire the services of an A proposed rule was published in the expert or neutral person (see 33.201) for DEPARTMENT OF DEFENSE Federal Register at 62 FR 55678, any current or anticipated litigation or October 27, 1997. Comments were dispute. GENERAL SERVICES received from eight sources. All * * * * * ADMINISTRATION comments were considered in the development of the final rule. PART 24ÐPROTECTION OF PRIVACY NATIONAL AERONAUTICS AND AND FREEDOM OF INFORMATION SPACE ADMINISTRATION B. Regulatory Flexibility Act 3. Section 24.202 is amended by 48 CFR Parts 6, 24, 33, and 52 The Department of Defense, the General Services Administration, and adding paragraph (c) read as follows: [FAC 97±09; FAR Case 97±015; Item III] the National Aeronautics and Space 24.202 Prohibitions. Administration certify that this final RIN 9000±AH72 * * * * * rule will not have a significant economic impact on a substantial (c) A dispute resolution Federal Acquisition Regulation; communication that is between a Alternative Dispute ResolutionÐ1996 number of small entities within the meaning of the Regulatory Flexibility neutral person and a party to alternative AGENCIES: Department of Defense (DoD), Act, 5 U.S.C. 601, et seq., because the dispute resolution proceedings, and that General Services Administration (GSA), rule adds guidance pertaining to, but may not be disclosed under 5 U.S.C. and National Aeronautics and Space does not significantly alter the 574, is exempt from disclosure under Administration (NASA). procedures for, alternative dispute the Freedom of Information Act (5 U.S.C. 552(b)(3)). ACTION: Final rule. resolution. Alternative dispute resolution procedures allow voluntary PART 33ÐPROTESTS, DISPUTES, SUMMARY: The Civilian Agency resolution of issues in controversy. AND APPEALS Acquisition Council and the Defense C. Paperwork Reduction Act Acquisition Regulations Council have 4. Section 33.201 is amended by agreed on a final rule amending the The Paperwork Reduction Act does revising the definition ‘‘Alternative Federal Acquisition Regulation (FAR) to not apply because the changes to the dispute resolution (ADR)’’ to read as implement the Administrative Dispute FAR do not impose recordkeeping or follows: Resolution Act of 1996 (Pub. L. 104– information collection requirements, or 33.201 Definitions. 320) and Section 4321(a)(7) of the collections of information from offerors, Clinger-Cohen Act of 1996 (Pub. L. 104– contractors, or members of the public * * * * * 106). This regulatory action was not which require the approval of the Office Alternative dispute resolution (ADR) subject to Office of Management and of Management and Budget under 44 means any type of procedure or Budget review under Executive Order U.S.C. 3501, et seq. However, it does combination of procedures voluntarily 12866, dated September 30, 1993, and is reduce the information collection used to resolve issues in controversy. not a major rule under 5 U.S.C. 804. requirements relating to Certification of These procedures may include, but are EFFECTIVE DATE: December 29, 1998. Claims, OMB Control No. 9000–0035. not limited to, conciliation, facilitation, FOR FURTHER INFORMATION CONTACT: The Accordingly, a request to reduce the mediation, fact-finding, minitrials, FAR Secretariat, Room 4035, GS total burden hours has been submitted arbitration, and use of ombudsmen. Building, Washington, DC 20405, (202) to OMB. * * * * * Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58595

33.204 [Amended] 52.233±1 Disputes. SUPPLEMENTARY INFORMATION: 5. Section 33.204 is amended in the * * * * * A. Background fifth sentence by removing ‘‘Public Law Disputes (Dec 1998) 100–522’’ and inserting ‘‘(5 U.S.C. 571, An interim rule was published in the et seq.)’’. * * * * * Federal Register at 54 FR 13022, March (d)(2)(i) The Contractor shall provide the 6. Section 33.207 is amended by 29, 1989. The issuance of an interim certification specified in paragraph (d)(2)(iii) rule was necessary because the United revising paragraph (a) to read as follows: of this clause when submitting any claim exceeding $100,000. States Court of Appeals had ruled that 33.207 Contractor certification. FAR 31.205–6(j)(5) was inconsistent * * * * * with 48 CFR 9904.412, Cost accounting (a) Contractors shall provide the (g) If the claim by the Contractor is certification specified in paragraph (c) submitted to the Contracting Officer or a standard for composition and of this section when submitting any claim by the Government is presented to the measurement of pension cost (CAS 412), claim exceeding $100,000. Contractor, the parties, by mutual consent, and that the controlling regulation was * * * * * may agree to use alternative dispute CAS 412. 7. Section 33.214 is amended at the resolution (ADR). If the Contractor refuses an Since the 1989 interim FAR rule was offer for ADR, the Contractor shall inform the published, the Office of Federal end of paragraph (a)(3) by inserting Contracting Officer, in writing, of the ‘‘and’’; at the end of paragraph (a)(4) by Procurement Policy, Cost Accounting Contractor’s specific reasons for rejecting the Standards Board, made substantial removing ‘‘; and’’ and inserting a period; offer. by removing paragraph (a)(5); by changes to CAS 412 and 48 CFR * * * * * 9904.413, Adjustment and allocation of revising paragraph (b); and by adding [FR Doc. 98–28957 Filed 10–29–98; 8:45 am] paragraphs (f) and (g) to read as follows: pension cost (CAS 413), relating to BILLING CODE 6820±EP±U accounting for pension costs under 33.214 Alternative dispute resolution negotiated Government contracts. These (ADR). proposed changes were published and * * * * * DEPARTMENT OF DEFENSE made available for public comment on November 5, 1993 (58 FR 58999). Public (b) If the contracting officer rejects a GENERAL SERVICES comments were received and contractor’s request for ADR ADMINISTRATION proceedings, the contracting officer considered in the development of the final CAS rule which was published in shall provide the contractor a written NATIONAL AERONAUTICS AND the Federal Register at 60 FR 16534, explanation citing one or more of the SPACE ADMINISTRATION conditions in 5 U.S.C. 572(b) or such March 30, 1995. The changes in the final CAS rule addressed pension cost other specific reasons that ADR 48 CFR Parts 15, 31 and 52 procedures are inappropriate for the recognition for qualified pension plans resolution of the dispute. In any case [FAC 97±09; FAR Case 89±012; Item IV] subject to the tax-deductibility limits of the Federal Tax Code, problems where a contractor rejects a request of RIN 9000±AC90 an agency for ADR proceedings, the associated with pension plans that are contractor shall inform the agency in Federal Acquisition Regulation; Pay- not qualified plans under the Federal writing of the contractor’s specific As-You-Go Pension Costs Tax Code, and problems associated with reasons for rejecting the request. overfunded pension plans. AGENCIES: Department of Defense (DoD), A proposed FAR rule was published * * * * * General Services Administration (GSA), in the Federal Register at 62 FR 49900, (f)(1) A solicitation shall not require and National Aeronautics and Space September 23, 1997, to provide arbitration as a condition of award, Administration (NASA). consistency with the revised CAS 412 unless arbitration is otherwise required ACTION: Final rule. and CAS 413. The rule proposed to (1) by law. Contracting officers should have revise the definitions at FAR 31.001 to flexibility to select the appropriate ADR SUMMARY: The Civilian Agency conform with the CAS Board’s procedure to resolve the issues in Acquisition Council and the Defense definitions; (2) delete references to controversy as they arise. Acquisition Regulations Council have ‘‘unfunded pension plans’’ since CAS (2) An agreement to use arbitration agreed on a final rule amending the 412 and CAS 413 no longer refer to shall be in writing and shall specify a Federal Acquisition Regulation (FAR) unfunded pension plans; (3) add new maximum award that may be issued by for consistency with the cost accounting language to FAR 31.205–6(j) to address the arbitrator, as well as any other standards for composition and transfer of assets to another account conditions limiting the range of possible measurement of pension cost and within the same fund, to address the outcomes. adjustment and allocation of pension allowability of costs for nonqualified (g) Binding arbitration, as an ADR cost. This regulatory action was not pension plans using the pay-as-you-go procedure, may be agreed to only as subject to Office of Management and cost method, and to address both CAS specified in agency guidelines. Such Budget review under Executive Order requirements and all other situations guidelines shall provide advice on the 12866, dated September 30, 1993. This not covered by CAS; (4) add new appropriate use of binding arbitration is not a major rule under 5 U.S.C. 804. language at FAR 31.205–6(j)(6), which and when an agency has authority to EFFECTIVE DATE: December 29, 1998. was previously reserved, to refer to CAS settle an issue in controversy through FOR FURTHER INFORMATION CONTACT: The 412 and CAS 413 for treatment of binding arbitration. FAR Secretariat, Room 4035, GS pension plans using the pay-as-you-go PART 52ÐSOLICITATION PROVISIONS Building, Washington, DC 20405, (202) cost method; (5) provide other editorial AND CONTRACT CLAUSES 501–4755, for information pertaining to changes to make FAR 31.001 and status or publication schedules. For 31.205–6 consistent with the language 8. Section 52.233–1 is amended by clarification of content, contact Mr. of CAS 412 and CAS 413; and (6) revise revising the date of the clause and Jeremy F. Olson at (202) 501–0692. the clause at FAR 52.215–27, paragraphs (d)(2)(i) and (g) to read as Please cite FAC 97–09, FAR case 89– Termination of Defined Benefit Pension follows: 012. Plans, to conform the clause with the 58596 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations proposed FAR Part 31 changes. Six 1. The authority citation for 48 CFR prior to the current period considered sources submitted comments in Parts 15, 31, and 52 continues to read by a particular actuarial valuation. As of response to the proposed FAR rule. All as follows: such date, the actuarial accrued liability comments were considered in the Authority: 40 U.S.C. 486(c); 10 U.S.C. represents the excess of the present development of this final rule. chapter 137; and 42 U.S.C. 2473(c). value of future benefits and This final rule amends FAR 15.408, administrative expenses over the Solicitation provisions and contract PART 15ÐCONTRACTING BY present value of future normal costs for clauses; FAR 31.001, Definitions; FAR NEGOTIATION all plan participants and beneficiaries. 31.205–6, Compensation for personal 2. Section 15.408 is amended by The excess of the actuarial accrued services; and FAR 52.215–15, Pension revising paragraph (g) to read as follows: liability over the actuarial value of the Adjustments and Asset Reversions. The assets of a pension plan is the unfunded final rule differs from the proposed rule 15.408 Solicitation provisions and actuarial liability. The excess of the by—(1) revising FAR 31.205–6(j)(3)(i)(A) contract clauses. actuarial value of the assets of a pension to address the deferral of pension costs * * * * * plan over the actuarial accrued liability pursuant to a waiver under the (g) Pension Adjustments and Asset is an actuarial surplus and is treated as Employee’s Retirement Income Security Reversions. The contracting officer shall a negative unfunded actuarial liability. Act of 1974 (ERISA); (2) revising FAR insert the clause at 52.215–15, Pension Actuarial assumption means an 31.205–6(j)(3)(v) to clarify that the Adjustments and Asset Reversions, in estimate of future conditions affecting provisions of FAR 31.205–6(j)(4) apply solicitations and contracts for which it pension cost; e.g., mortality rate, if the withdrawal of assets is a pension is anticipated that cost or pricing data employee turnover, compensation plan termination under ERISA; (3) will be required or for which any levels, earnings on pension plan assets, revising FAR 31.205–6(j)(4)(i) and preaward or postaward cost and changes in values of pension plan 52.215–15(b) to clarify the calculation of determinations will be subject to Part 31 assets. the adjustment amounts for both CAS of the FAR. Actuarial cost method means a and non-CAS-covered contracts; and (4) * * * * * technique that uses actuarial making a number of editorial revisions, assumptions to measure the present including changes (e.g., renumbering PART 31ÐCONTRACT COST value of future pension benefits and FAR 52.215–27 as FAR 52.215–15) PRINCIPLES AND PROCEDURES pension plan administrative expenses, resulting from publication of Federal and that assigns the cost of such benefits 3. Section 31.001 is amended by and expenses to cost accounting Acquisition Circular 97–02 on removing the definitions ‘‘Actuarial September 30, 1997 (62 FR 51224). periods. The actuarial cost method liability’’ ‘‘Termination of gain or loss’’ includes the asset valuation method B. Regulatory Flexibility Act and ‘‘Unfunded pension plan’’ ; by used to determine the actuarial value of adding, in alphabetical order, the the assets of a pension plan. The Department of Defense, the definitions ‘‘Actuarial accrued General Services Administration, and liability’’, ‘‘Nonqualified pension plan’’, * * * * * Actuarial valuation means the the National Aeronautics and Space ‘‘Qualified pension plan’’ and determination, as of a specified date, of Administration certify that this final ‘‘Termination of employment gain or the normal cost, actuarial accrued rule will not have a significant loss’’ ; and by revising the definitions of liability, actuarial value of the assets of economic impact on a substantial ‘‘Accrued benefit cost method’’, a pension plan, and other relevant number of small entities within the ‘‘Actuarial assumption’’, ‘‘Actuarial cost values for the pension plan. meaning of the Regulatory Flexibility method’’, ‘‘Actuarial valuation’’, Act, 5 U.S.C. 601, et seq., because most ‘‘Funded pension cost’’, ‘‘Normal cost’’, * * * * * contracts awarded to small entities use ‘‘Pension plan’’, and ‘‘Projected benefit Funded pension cost means the simplified acquisition procedures or are cost method’’, to read as follows: portion of pension cost for a current or awarded on a competitive, fixed-price prior cost accounting period that has basis, and do not require application of 31.001 Definitions. been paid to a funding agency. the cost principle contained in this rule. Accrued benefit cost method means * * * * * an actuarial cost method under which Nonqualified pension plan means any C. Paperwork Reduction Act units of benefits are assigned to each pension plan other than a qualified The Paperwork Reduction Act does cost accounting period and are valued pension plan as defined in this part. not apply because the changes to the as they accrue; i.e., based on the services Normal cost means the annual cost FAR do not impose recordkeeping or performed by each employee in the attributable, under the actuarial cost information collection requirements, or period involved. The measure of normal method in use, to current and future collections of information from offerors, cost under this method for each cost years as of a particular valuation date contractors, or members of the public accounting period is the present value excluding any payment in respect of an which require the approval of the Office of the units of benefit deemed to be unfunded actuarial liability. of Management and Budget under 44 credited to employees for service in that * * * * * U.S.C. 3501, et seq. period. The measure of the actuarial Pension plan means a deferred accrued liability at a plan’s inception compensation plan established and List of Subjects in 48 CFR Parts 15, 31, date is the present value of the units of maintained by one or more employers to and 52 benefit credited to employees for service provide systematically for the payment Government procurement. prior to that date. (This method is also of benefits to plan participants after known as the unit credit cost method their retirements, provided that the Dated: October 22, 1998. without salary projection.) benefits are paid for life or are payable Edward C. Loeb, * * * * * for life at the option of the employees. Director, Federal Acquisition Policy Division. Actuarial accrued liability means Additional benefits such as permanent Therefore, 48 CFR Parts 15, 31, and 52 pension cost attributable, under the and total disability and death payments, are amended as set forth below: actuarial cost method in use, to years and survivorship payments to Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58597 beneficiaries of deceased employees, in compliance with the provisions of 48 9904.412–40(a)(1)) assigned to the may be an integral part of a pension CFR 9904.412, Cost accounting standard current accounting period, but not plan. for composition and measurement of funded during it, shall not be allowable * * * * * pension cost, and 48 CFR 9904.413, in subsequent years (except that a Projected benefit cost method means Adjustment and allocation of pension payment made to a fund by the time set either— cost. The costs of all defined- for filing the Federal income tax return (1) Any of the several actuarial cost contribution pension plans shall be or any extension thereof is considered to methods that distribute the estimated measured, allocated, and accounted for have been made during such taxable total cost of all of the employees’ in accordance with the provisions of 48 year). However, any portion of pension prospective benefits over a period of CFR 9904.412 and 48 CFR 9904.413. cost computed for a cost accounting years, usually their working careers; or Pension costs are allowable subject to period, that exceeds the amount (2) A modification of the accrued the referenced standards and the cost required to be funded pursuant to a benefit cost method that considers limitations and exclusions set forth in waiver granted under the provisions of projected compensation levels. paragraphs (j)(2)(i) and (j)(3) through (8) the Employee’s Retirement Income of this subsection. Security Act of 1974 (ERISA), will be * * * * * (i) Except for nonqualified pension allowable in those future accounting Qualified pension plan means a plans using the pay-as-you-go cost periods in which the funding of such pension plan comprising a definite method, to be allowable in the current excess amounts occurs (see 48 CFR written program communicated to and year, pension costs must be funded by 9904.412–50(c)(5)). for the exclusive benefit of employees the time set for filing of the Federal (B) For nonqualified pension plans, that meets the criteria deemed essential income tax return or any extension except those using the pay-as-you-go by the Internal Revenue Service as set thereof. Pension costs assigned to the cost method, allowable costs are limited forth in the Internal Revenue Code for current year, but not funded by the tax to the amount allocable in accordance preferential tax treatment regarding return time, shall not be allowable in with 48 CFR 9904.412–50(d)(2). contributions, investments, and any subsequent year. For nonqualified (C) For nonqualified pension plans distributions. Any other plan is a pension plans using the pay-as-you-go using the pay-as-you-go cost method, nonqualified pension plan. cost method, to be allowable in the allowable costs are limited to the * * * * * current year, pension costs must be amounts allocable in accordance with Termination of employment gain or allocable in accordance with 48 CFR 48 CFR 9904.412–50(d)(3). loss means an actuarial gain or loss 9904.412–50(d)(3). (ii) Any amount funded in excess of resulting from the difference between (ii) Pension payments must be the pension cost assigned to a cost the assumed and actual rates at which reasonable in amount and must be paid accounting period is not allowable and pension plan participants separate from pursuant to—an agreement entered into shall be accounted for as set forth at 48 employment for reasons other than in good faith between the contractor and CFR 9904.412–50(a)(4), and shall be retirement, disability, or death. employees before the work or services allowable in the future period to which * * * * * are performed; and the terms and it is assigned, to the extent it is 4. Section 31.201–5 is amended by conditions of the established plan. The allocable, reasonable, and not otherwise revising the last sentence to read as cost of changes in pension plans that are unallowable. follows: discriminatory to the Government or are (iii) Increased pension costs caused by not intended to be applied consistently delay in funding beyond 30 days after 31.201±5 Credits. for all employees under similar each quarter of the year to which they ** * See 31.205–6(j)(4) for rules circumstances in the future are not are assignable are unallowable. If a governing refund or credit to the allowable. composite rate is used for allocating Government associated with pension (iii) Except as provided for early pension costs between the segments of adjustments and asset reversions. retirement benefits in paragraph (j)(7) of a company and if, because of differences 5. Section 31.205–6 is amended by this subsection, one-time-only pension in the timing of the funding by the revising paragraphs (j)(1) through (j)(6) supplements not available to all segments, an inequity exists, allowable to read as follows: participants of the basic plan are not pension costs for each segment will be allowable as pension costs unless the limited to that particular segment’s 31.205±6 Compensation for personal supplemental benefits represent a calculation of pension costs as provided services. separate pension plan and the benefits for in 48 CFR 9904.413–50(c). * * * * * are payable for life at the option of the Determinations of unallowable costs (j) Pension costs. (1) A pension plan, employee. shall be made in accordance with the as defined in 31.001, is a deferred (iv) Increases in payments to actuarial cost method used in compensation plan. Additional benefits previously retired plan participants calculating pension costs. such as permanent and total disability covering cost-of-living adjustments are (iv) Allowability of the cost of and death payments and survivorship allowable if paid in accordance with a indemnifying the Pension Benefit payments to beneficiaries of deceased policy or practice consistently followed. Guaranty Corporation (PBGC) under employees may be treated as pension (3) Defined-benefit pension plans. ERISA Section 4062 or 4064 arising costs, provided the benefits are an This paragraph covers pension plans in from terminating an employee deferred integral part of the pension plan and which the benefits to be paid or the compensation plan will be considered meet all the criteria pertaining to basis for determining such benefits are on a case-by-case basis, provided that if pension costs. established in advance and the insurance was required by the PBGC (2) Pension plans are normally contributions are intended to provide under ERISA Section 4023, it was so segregated into two types of plans: the stated benefits. The cost limitations obtained and the indemnification defined-benefit or defined-contribution and exclusions pertaining to defined- payment is not recoverable under the pension plans. The cost of all defined- benefit plans are as follows: insurance. Consideration under the benefit pension plans shall be (i)(A) Except for nonqualified pension foregoing circumstances will be measured, allocated, and accounted for plans, pension costs (see 48 CFR primarily for the purpose of appraising 58598 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations the extent to which the indemnification (5) Defined-contribution pension allocated to all non-CAS-covered contracts payment is allocable to Government plans. This paragraph covers those and subcontracts that are subject to Federal work. If a beneficial or other equitable pension plans in which the Acquisition Regulation (FAR) Subpart 31.2 or relationship exists, the Government will contributions are established in advance for which cost or pricing data were participate, despite the requirements of submitted. and the level of benefits is determined (c) For all other situations where assets 31.205–19(a)(3) and (b), in the by the contributions made. It also covers revert to the Contractor, or such assets are indemnification payment to the extent profit sharing, savings plans, and other constructively received by it for any reason, of its fair share. such plans, provided the plans fall the Contractor shall, at the Government’s (v) Increased pension costs resulting within the definition of a pension plan option, make a refund or give a credit to the from the withdrawal of assets from a in paragraph (j)(1) of this subsection. Government for its equitable share of the pension fund and transfer to another (i) Allowable pension cost is limited gross amount withdrawn. The Government’s employee benefit plan fund, or transfer to the net contribution required to be equitable share shall reflect the Government’s of assets to another account within the made for a cost accounting period after participation in pension costs through those same fund, are unallowable except to taking into account dividends and other contracts for which cost or pricing data were the extent authorized by an advance submitted or that are subject to FAR Subpart credits, where applicable. However, any 31.2. agreement. If the withdrawal of assets portion of pension cost computed for a (d) The Contractor shall include the from a pension fund is a plan cost accounting period that exceeds the substance of this clause in all subcontracts termination under ERISA, the amount required to be funded pursuant under this contract that meet the provisions of paragraph (j)(4) of this to a waiver granted under the provisions applicability requirement of FAR 15.408(g). subsection apply. The advance of ERISA will be allowable in those (End of clause) agreement shall— future accounting periods in which the [FR Doc. 98–28958 Filed 10–29–98; 8:45 am] (A) State the amount of the funding of such excess amounts occurs Government’s equitable share in the (see 48 CFR 9904.412–50(c)(5)). BILLING CODE 6820±EP±U gross amount withdrawn or transferred; (ii) The provisions of paragraphs (j)(3) and (ii) and (iv) of this subsection apply to DEPARTMENT OF DEFENSE (B) Provide that the Government defined-contribution plans. receive a credit equal to the amount of (6) Pension plans using the pay-as- the Government’s equitable share of the GENERAL SERVICES you-go cost method. The cost of pension ADMINISTRATION gross withdrawal or transfer. plans using the pay-as-you-go cost (4) Pension adjustments and asset method shall be measured, allocated, NATIONAL AERONAUTICS AND reversions. (i) For segment closings, and accounted for in accordance with SPACE ADMINISTRATION pension plan terminations, or 48 CFR 9904.412 and 9904.413. Pension curtailment of benefits, the adjustment costs for a pension plan using the pay- 48 CFR Parts 22 and 52 amount shall be the amount measured, as-you-go cost method shall be assigned, and allocated in accordance allowable to the extent they are [FAC 97±09; FAR Case 96±610; Item V] with 48 CFR 9904.413–50(c)(12) for allocable, reasonable, and not otherwise RIN 9000±AH99 contracts and subcontracts that are unallowable. subject to Cost Accounting Standards * * * * * Federal Acquisition Regulation; (CAS) Board rules and regulations (48 Rehabilitation Act, Workers With CFR Chapter 99). For contracts and PART 52ÐSOLICITATION PROVISIONS Disabilities subcontracts that are not subject to CAS, AND CONTRACT CLAUSES the adjustment amount shall be the AGENCIES: Department of Defense (DoD), amount measured, assigned, and 6. Section 52.215–15 is revised to read General Services Administration (GSA), allocated in accordance with 48 CFR as follows: and National Aeronautics and Space 9904.413–50(c)(12), except the Administration (NASA). 52.215±15 Pension adjustments and asset ACTION: numerator of the fraction at 48 CFR reversions. Interim rule adopted as final 9904.413–50(c)(12)(vi) shall be the sum without change. of the pension plan costs allocated to all As prescribed in 15.408(g), insert the non-CAS-covered contracts and following clause: SUMMARY: The Civilian Agency subcontracts that are subject to Subpart Pension Adjustments and Asset Reversions Acquisition Council and the Defense 31.2 or for which cost or pricing data (Dec 1998) Acquisition Regulations Council have were submitted. (a) The Contractor shall promptly notify agreed to adopt the interim rule (ii) For all other situations where the Contracting Officer in writing when it published in the Federal Register at 63 assets revert to the contractor, or such determines that it will terminate a defined- FR 34073, June 22, 1998, as a final rule assets are constructively received by it benefit pension plan or otherwise recapture without change. The rule amends the for any reason, the contractor shall, at such pension fund assets. Federal Acquisition Regulation (FAR) to the Government’s option, make a refund (b) For segment closings, pension plan implement revised Department of Labor terminations, or curtailment of benefits, the or give a credit to the Government for regulations regarding affirmative action adjustment amount shall be the amount to employ and advance in employment its equitable share of the gross amount measured, assigned, and allocated in withdrawn. The Government’s equitable accordance with 48 CFR 9904.413–50(c)(12) qualified individuals with disabilities. share shall reflect the Government’s for contracts and subcontracts that are subject This regulatory action was not subject to participation in pension costs through to Cost Accounting Standards (CAS) Board Office of Management and Budget those contracts for which cost or pricing rules and regulations (48 CFR Chapter 99). review under Executive Order 12866, data were submitted or that are subject For contracts and subcontracts that are not dated September 30, 1993, and is not a to Subpart 31.2. Excise taxes on pension subject to CAS, the adjustment amount shall major rule under 5 U.S.C. 804. be the amount measured, assigned, and EFFECTIVE DATE: October 30, 1998. plan asset reversions or withdrawals allocated in accordance with 48 CFR under this paragraph (j)(4)(ii) are 9904.413–50(c)(12), except the numerator of FOR FURTHER INFORMATION CONTACT: The unallowable in accordance with 31.205- the fraction at 48 CFR 9904.413–50(c)(12)(vi) FAR Secretariat, Room 4035, GS 41(b)(6). shall be the sum of the pension plan costs Building, Washington, DC 20405, (202) Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58599

501–4755, for information pertaining to Authority: 40 U.S.C. 486(c); 10 U.S.C. B. Regulatory Flexibility Act chapter 137; and 42 U.S.C. 2473(c). status or publication schedules. For The Department of Defense, the clarification of content, contact Mr. Jack [FR Doc. 98–28959 Filed 10–29–98; 8:45 am] General Services Administration, and O’Neill, Procurement Analyst, at (202) BILLING CODE 6820±EP±U the National Aeronautics and Space 501–3856. Please cite FAC 97–09, FAR Administration certify that this final case 96–610. rule will not have a significant DEPARTMENT OF DEFENSE SUPPLEMENTARY INFORMATION: economic impact on a substantial number of small entities within the A. Background GENERAL SERVICES ADMINISTRATION meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because most On June 22, 1998, FAR Case 96–610, NATIONAL AERONAUTICS AND contracts awarded to small entities use Rehabilitation Act, Workers with SPACE ADMINISTRATION simplified acquisition procedures or are Disabilities, was published in the awarded on a competitive, fixed-price Federal Register as an interim rule. The 48 CFR Part 31 basis, and do not require application of FAR rule implemented Department of the FAR cost principles. Labor (DoL) regulations at 41 CFR 60– [FAC 97±09; FAR Case 97±036; Item VI] 741 that implement Section 503 of the RIN 9000±AH95 C. Paperwork Reduction Act Rehabilitation Act of 1973 (29 U.S.C. The Paperwork Reduction Act does 793). The rule amended FAR Subpart Federal Acquisition Regulation; Civil not apply because the change to the 22.14 and the clauses at 52.212–5, Defense Costs FAR does not impose recordkeeping or 52.213–4, and 52.222–36 to conform to AGENCIES: Department of Defense (DoD), information collection requirements, or the DoL regulations. No public General Services Administration (GSA), collections of information from offerors, comments were received in response to and National Aeronautics and Space contractors, or members of the public the interim rule. The interim rule is Administration (NASA). which require the approval of the Office being adopted as a final rule without ACTION: Final rule. of Management and Budget under 44 change. U.S.C. 3501, et seq. SUMMARY: The Civilian Agency B. Regulatory Flexibility Act Acquisition Council and the Defense List of Subjects in 48 CFR Part 31 The Department of Defense, the Acquisition Regulations Council have Government procurement. General Services Administration, and agreed on a final rule amending the Dated: October 22, 1998. the National Aeronautics and Space Federal Acquisition Regulation (FAR) to Edward C. Loeb, delete the civil defense cost principle. Administration certify that this final Director, Federal Acquisition Policy Division. rule will not have a significant This regulatory action was not subject to economic impact on a substantial Office of Management and Budget Therefore, 48 CFR Part 31 is amended number of small entities within the review under Executive Order 12866, as set forth below: meaning of the Regulatory Flexibility dated September 30, 1993, and is not a major rule under 5 U.S.C. 804. PART 31ÐCONTRACT COST Act, 5 U.S.C. 601, et seq., because the PRINCIPLES AND PROCEDURES rule merely implements existing EFFECTIVE DATE: December 29, 1998. Department of Labor regulations and FOR FURTHER INFORMATION CONTACT: The 1. The authority citation for 48 CFR imposes no new requirements. FAR Secretariat, Room 4035, GS Part 31 continues to read as follows: Building, Washington, DC 20405, (202) C. Paperwork Reduction Act Authority: 40 U.S.C. 486(c); 10 U.S.C. 501–4755, for information pertaining to chapter 137; and 42 U.S.C. 2473(c). The Paperwork Reduction Act does status or publication schedules. For not apply because the changes to the clarification of content, contact Ms. 31.205±5 [Removed and Reserved] Linda Nelson, Procurement Analyst, at FAR do not impose recordkeeping or 2. Section 31.205–5 is removed and (202) 501–1900. Please cite FAC 97–09, information collection requirements, or reserved. collections of information from offerors, FAR case 97–036. [FR Doc. 98–28960 Filed 10–29–98; 8:45 am] contractors, or members of the public SUPPLEMENTARY INFORMATION: BILLING CODE 6820±EP±U which require the approval of the Office A. Background of Management and Budget under 44 A proposed rule was published in the U.S.C. 3501, et seq. Federal Register on March 20, 1998 (63 DEPARTMENT OF DEFENSE List of Subjects in 48 CFR Parts 22 and FR 13771). The proposed rule deleted GENERAL SERVICES 52 the cost principle at FAR 31.205–5, Civil defense costs. With the end of the ADMINISTRATION Government procurement. Cold War, the special guidance provided in this cost principle is no NATIONAL AERONAUTICS AND Dated: October 22, 1998. SPACE ADMINISTRATION Edward C. Loeb, longer deemed necessary. The acceptability of this type of costs will Director, Federal Acquisition Policy Division. remain governed by the allocability, 48 CFR Part 31 Interim Rule Adopted as Final Without allowability, and reasonableness criteria [FAC 97±09; FAR Case 95±020; Item VII] discussed in FAR Part 31. The proposed Change RIN 9000±AH05 rule is converted to a final rule without Accordingly, the interim rule change. Federal Acquisition Regulation; Costs amending 48 CFR Parts 22 and 52, One comment was received in Related to Legal/Other Proceedings which was published at 63 FR 34073, response to the proposed rule. This June 22, 1998, is adopted as a final rule comment was considered in the AGENCIES: Department of Defense (DoD), without change. development of the final rule. General Services Administration (GSA), 58600 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations and National Aeronautics and Space advisors, should determine the (2) In the event of a settlement of any Administration (NASA). appropriate treatment of those costs on proceeding brought by a third party ACTION: Final rule. a case-by-case basis. under the False Claims Act in which the United States did not intervene, B. Regulatory Flexibility Act SUMMARY: The Civilian Agency reasonable costs incurred by the Acquisition Council and the Defense The Department of Defense, the contractor in connection with such a Acquisition Regulations Council have General Services Administration, and proceeding, that are not otherwise agreed on a final rule amending the the National Aeronautics and Space unallowable by regulation or by separate Federal Acquisition Regulation (FAR) to Administration certify that this final agreement with the United States, may clarify the allowability of costs incurred rule will not have a significant be allowed if the contracting officer, in for qui tam suits in which the economic impact on a substantial consultation with his or her legal Government does not intervene. This number of small entities within the advisor, determines that there was very regulatory action was not subject to meaning of the Regulatory Flexibility little likelihood that the third party Office of Management and Budget Act, 5 U.S.C. 601, et seq., because most would have been successful on the review under Executive Order 12866, contracts awarded to small entities use merits. dated September 30, 1993. This is not a simplified acquisition procedures or are * * * * * major rule under 5 U.S.C. 804. awarded on a competitive fixed-price (e) * * * EFFECTIVE DATE: December 29, 1998. basis, and do not require application of (3) The percentage of costs allowed FOR FURTHER INFORMATION CONTACT: The the cost principle contained in this rule. does not exceed the percentage FAR Secretariat, Room 4035, GS C. Paperwork Reduction Act determined to be appropriate Building, Washington, DC 20405, (202) considering the complexity of 501–4755, for information pertaining to The Paperwork Reduction Act does procurement litigation, generally status or publication schedules. For not apply because the changes to the accepted principles governing the award clarification of content, contact Ms. FAR do not impose recordkeeping or of legal fees in civil actions involving Linda Nelson, Procurement Analyst, at information collection requirements, or the United States as a party, and such (202) 501–1900. Please cite FAC 97–09, collections of information from offerors, other factors as may be appropriate. FAR case 95–020. contractors, or members of the public Such percentage shall not exceed 80 which require the approval of the Office SUPPLEMENTARY INFORMATION: percent. Agreements reached under of Management and Budget under 44 paragraph (c) of this subsection shall be A. Background U.S.C. 3501, et seq. subject to this limitation. If, however, an A proposed rule was published in the List of Subjects in 48 CFR Part 31 agreement described in paragraph (c)(1) of this subsection explicitly states the Federal Register on June 20, 1996 (61 Government procurement. FR 31790). Seven sources submitted amount of otherwise allowable incurred public comments. All comments were Dated: October 22, 1998. legal fees and limits the allowable considered in developing the final rule. Edward C. Loeb, recovery to 80 percent or less of the This final rule clarifies the cost Director, Federal Acquisition Policy Division. stated legal fees, no additional principle at FAR 31.205–47 as it relates Therefore, 48 CFR Part 31 is amended limitation need be applied. The amount to qui tam suits not joined in by the as set forth below: of reimbursement allowed for legal costs Government. The final rule also in connection with any proceeding clarifies, at FAR 31.205–47(e)(3), that PART 31ÐCONTRACT COST described in paragraph (c)(2) of this the maximum reimbursement PRINCIPLES AND PROCEDURES subsection shall be determined by the contractors may receive for legal costs in cognizant contracting officer, but shall 1. The authority citation for 48 CFR connection with agreements reached not exceed 80 percent of otherwise Part 31 continues to read as follows: under FAR 31.205–47(c) is 80 percent of allowable legal costs incurred. otherwise allowable and allocable Authority: 40 U.S.C. 486(c); 10 U.S.C. * * * * * chapter 137; and 42 U.S.C. 2473(c). incurred costs. [FR Doc. 98–28961 Filed 10–29–98; 8:45 am] Industry has commented that this 2. Section 31.205–47 is amended by BILLING CODE 6820±EP±U coverage should be effective revising the introductory text of prospectively. After consideration of paragraph (b); by redesignating (c) as these comments, it is concluded that (c)(1) and adding (c)(2); and by revising DEPARTMENT OF DEFENSE this coverage is properly characterized paragraph (e)(3) to read as follows: as a clarification. Nevertheless, it is GENERAL SERVICES recognized that certain Government 31.205±47 Costs related to legal and other ADMINISTRATION contracting personnel and contractors proceedings. may have had common * * * * * NATIONAL AERONAUTICS AND misinterpretations of the regulatory (b) Costs incurred in connection with SPACE ADMINISTRATION coverage. Indeed, those inconsistencies any proceeding brought by a Federal, are the catalyst behind this clarification. State, local, or foreign government for 48 CFR Parts 32 and 37 On August 24, 1995, the Defense violation of, or a failure to comply with, [FAC 97±09; FAR Case 97±302; Item VIII] Contract Audit Agency issued audit law or regulation by the contractor guidance that clarified audit treatment (including its agents or employees), or RIN 9000±AI09 for qui tam legal fees. For qui tam legal costs incurred in connection with any proceeding brought by a third party in Federal Acquisition Regulation; fees incurred before August 24, 1995, if Service Contracts the Government contracting personnel the name of the United States under the and the contractor shared a common False Claims Act, 31 U.S.C. 3730, are AGENCIES: Department of Defense (DoD), misinterpretation of the regulatory unallowable if the result is— General Services Administration (GSA), coverage, the contracting officer, in * * * * * and National Aeronautics and Space consultation with his or her legal (c) * * * Administration (NASA). Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58601

ACTION: Final rule. Dated: October 22, 1998. DEPARTMENT OF DEFENSE Edward C. Loeb, SUMMARY: The Civilian Agency Director, Federal Acquisition Policy Division. GENERAL SERVICES Acquisition Council and the Defense ADMINISTRATION Acquisition Regulations Council have Therefore, 48 CFR Parts 32 and 37 are agreed on a final rule amending the amended as set forth below: NATIONAL AERONAUTICS AND Federal Acquisition Regulation (FAR) to 1. The authority citation for 48 CFR SPACE ADMINISTRATION expand the authority of the Department Parts 32 and 37 continues to read as of Defense and the Coast Guard to enter follows: 48 CFR Part 32 into contracts that cross fiscal years. This regulatory action was not subject Authority: 40 U.S.C. 486(c); 10 U.S.C. [FAC 97±09; FAR Case 97±609; Item IX] to Office of Management and Budget chapter 137; and 42 U.S.C. 2473(c). RIN 9000±AI11 review under Executive Order 12866, dated September 30, 1993, and is not a PART 32ÐCONTRACT FINANCING Federal Acquisition Regulation; major rule under 5 U.S.C. 804. Payment Due Dates 2. Section 32.703–3 is revised to read EFFECTIVE DATE: December 29, 1998. as follows: AGENCIES: Department of Defense (DoD), FOR FURTHER INFORMATION CONTACT: The General Services Administration (GSA), FAR Secretariat, Room 4035, GS 32.703±3 Contracts crossing fiscal years. and National Aeronautics and Space Building, Washington, DC 20405, (202) Administration (NASA). 501–4755, for information pertaining to (a) A contract that is funded by ACTION: Final rule. status or publication schedules. For annual appropriations may not cross fiscal years, except in accordance with clarification of content, contact Mr. SUMMARY: The Civilian Agency Jeremy F. Olson at (202) 501–0692. statutory authorization (e.g., 41 U.S.C. 11a, 31 U.S.C. 1308, 42 U.S.C. 2459a, 42 Acquisition Council and the Defense Please cite FAC 97–09, FAR case 97– Acquisition Regulations Council have 302. U.S.C. 3515, and paragraph (b) of this subsection), or when the contract calls agreed on a final rule amending the SUPPLEMENTARY INFORMATION: for an end product that cannot feasibly Federal Acquisition Regulation (FAR) to A. Background be subdivided for separate performance clarify that agencies may authorize amendment of the FAR payment clauses Section 801 of the National Defense in each fiscal year (e.g., contracts for expert or consultant services). to specify a period shorter than 30 days Authorization Act for Fiscal Year 1998 for making contract invoice payments, (Pub. L. 105–85) amends 10 U.S.C. (b) The head of an executive agency, provided such period is not less than 7 2410a to authorize the Secretary of except NASA, may enter into a contract, days. This regulatory action was not Defense, the Secretary of a military exercise an option, or place an order subject to Office of Management and department, or the Secretary of under a contract for severable services Budget review under Executive Order Transportation with regard to the Coast for a period that begins in one fiscal 12866, dated September 30, 1993, and is Guard when not operating as a service year and ends in the next fiscal year if not a major rule under 5 U.S.C. 804. in the Navy, to enter into a contract for the period of the contract awarded, EFFECTIVE DATE: December 29, 1998. procurement of severable services for a option exercised, or order placed does FOR FURTHER INFORMATION CONTACT: period that begins in one fiscal year and not exceed one year (10 U.S.C. 2410a The ends in the next fiscal year. and 41 U.S.C. 253l). Funds made FAR Secretariat, Room 4035, 1800 F available for a fiscal year may be Street, NW, Washington, DC 20405, B. Regulatory Flexibility Act obligated for the total amount of an (202) 501–4755, for information The final rule does not constitute a action entered into under this authority. pertaining to status or publication significant FAR revision within the schedules. For clarification of content, meaning of FAR 1.501 and Public Law PART 37ÐSERVICE CONTRACTING contact Mr. Jeremy Olson at (202) 501– 98–577, and publication for public 0692. Please cite FAC 97–09, FAR case comments is not required. However, 3. Section 37.106 is amended by 97–609. comments from small entities revising paragraph (b) to read as follows: SUPPLEMENTARY INFORMATION: concerning the affected FAR subparts A. Background will be considered in accordance with 5 37.106 Funding and term of service contracts. U.S.C. 610. Such comments must be This final rule amends FAR Subpart submitted separately and should cite 5 * * * * * 32.9 to clarify that agencies may amend U.S.C. 601, et seq. (FAC 97–09, FAR (b) The head of an executive agency, the clauses at FAR 52.232–25, Prompt case 97–302), in correspondence. except NASA, may enter into a contract, Payment, and 52.232–26, Prompt Payment for Fixed-Price Architect- C. Paperwork Reduction Act exercise an option, or place an order under a contract for severable services Engineer Contracts, to specify a period The Paperwork Reduction Act does for a period that begins in one fiscal shorter than 30 days (but not less than not apply because the changes to the year and ends in the next fiscal year if 7 days) for making contract invoice FAR do not impose recordkeeping or the period of the contract awarded, payments. information collection requirements, or option exercised, or order placed does B. Regulatory Flexibility Act collections of information from offerors, not exceed one year (10 U.S.C. 2410a The final rule does not constitute a contractors, or members of the public and 41 U.S.C. 253l). Funds made significant FAR revision within the which require the approval of the Office available for a fiscal year may be meaning of FAR 1.501 and Public Law of Management and Budget under 44 obligated for the total amount of an 98–577, and publication for public U.S.C. 3501, et seq. action entered into under this authority. comments is not required. However, List of Subjects in 48 CFR Parts 32 and * * * * * comments from small entities 37 [FR Doc. 98–28962 Filed 10–29–98; 8:45 am] concerning the affected FAR subpart Government procurement. BILLING CODE 6820±EP±U will be considered in accordance with 5 58602 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

U.S.C. 610. Such comments must be DEPARTMENT OF DEFENSE submitted separately and should cite 5 U.S.C. 601, et seq. (FAC 97–09, FAR GENERAL SERVICES FAR segment OMB Con- case 97–609), in correspondence. ADMINISTRATION trol No. C. Paperwork Reduction Act NATIONAL AERONAUTICS AND ***** The Paperwork Reduction Act does SPACE ADMINISTRATION 52.227±14 ...... 9000±0090 not apply because the changes to the 52.227±15 ...... 9000±0090 FAR do not impose recordkeeping or 48 CFR Parts 1, 6, 14, 15, 19, 32, 33, 52.227±16 ...... 9000±0090 36, 41, 52, and 53 52.227±17 ...... 9000±0090 information collection requirements, or 52.227±18 ...... 9000±0090 collections of information from offerors, 52.227±19 ...... 9000±0090 contractors, or members of the public [FAC 97±09; Item X] 52.227±20 ...... 9000±0090 which require the approval of the Office 52.227±21 ...... 9000±0090 of Management and Budget under 44 Federal Acquisition Regulation; 52.227±22 ...... 9000±0090 U.S.C. 3501, et seq. Technical Amendments 52.227±23 ...... 9000±0090

List of Subjects in 48 CFR Part 32: AGENCIES: Department of Defense (DoD), * * * * * Government procurement. General Services Administration (GSA), and National Aeronautics and Space PART 6ÐCOMPETITION Dated: October 22, 1998. Administration (NASA). REQUIREMENTS Edward C. Loeb, ACTION: Technical amendments. 6.302±3 [Amended] Director, Federal Acquisition Policy Division. 3. Section 6.302–3 is amended at the Therefore, 48 CFR Part 32 is amended SUMMARY: This document makes end of paragraph (a)(2) introductory text as set forth below: amendments to the Federal Acquisition by removing the colon and inserting a 1. The authority citation for 48 CFR Regulation in order to update references dash; and at the beginning of paragraphs Part 32 continues to read as follows: and make editorial changes. (a)(2)(i) and (a)(2)(ii), by removing ‘‘to’’ and inserting ‘‘To’’. PART 32ÐCONTRACT FINANCING EFFECTIVE DATE: October 30, 1998. PART 14ÐSEALED BIDDING FOR FURTHER INFORMATION CONTACT: The Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). FAR Secretariat, Room 4035, GSA 14.407±4 [Amended] Building, Washington, DC 20405, (202) 5. Section 14.407–4 is amended in 2. Section 32.905 is amended in 501–4755. paragraph (a) by revising the word paragraph (a) by revising the ‘‘amendment’’ to read ‘‘modification’’. introductory text to read as follows: List of Subjects in 48 CFR Parts 1, 6, 14, 15, 19, 32, 33, 36, 41, 52, and 53 PART 15ÐCONTRACTING BY 32.905 Invoice payments. Government procurement. NEGOTIATION (a) General. Except as prescribed in 15.404±1 [Amended] paragraphs (b), (c), and (d) of this Dated: October 22, 1998. 6. Section 15.404–1 is amended in the section, or as authorized in 32.908(a)(3) Edward C. Loeb, first sentence of paragraph (a)(7) by or (c)(3), the due date for making an Director, Federal Acquisition Policy Division. removing the word ‘‘Resource’’ and invoice payment by the designated Therefore, 48 CFR Parts 1, 6, 14, 15, adding ‘‘Reference’’. payment office shall be as follows: 19, 32, 33, 36, 41, 52, and 53 are * * * * * amended as set forth below: PART 19ÐSMALL BUSINESS PROGRAMS 3. Section 32.908 is amended by 1. The authority citation for 48 CFR adding paragraphs (a)(3) and (c)(3) to Parts 1, 6, 14, 15, 19, 32, 33, 36, 41, 52, 7. Section 19.102(f)(4) is amended by read as follows: and 53 continues to read as follows: revising the third sentence to read as follows: 32.908 Contract clauses. Authority: 40 U.S.C. 486(c); 10 U.S.C. (a) * * * chapter 137; and 42 U.S.C. 2473(c). 19.102 Size standards. (3) As provided in 32.904, agency * * * * * PART 1ÐFEDERAL ACQUISITION (f)(4) * * * A listing is also available policies and procedures may authorize REGULATIONS SYSTEM on SBA’s Internet Homepage at http:// amendment of paragraphs (a)(1)(i) and www.sba.gov/gc. * * * (iii) of the clause to insert a period 2. The table in section 1.106 is shorter than 30 days (but not less than amended by revising entries * * * * * 7 days) for making contract invoice ‘‘41.004.2(c)’’ to read ‘‘41.202(c)’’; 19.1004 [Amended] payments. ‘‘52.241–2’’ to read ‘‘52.241–3’’; 8. Section 19.1004 is amended by * * * * * ‘‘52.241–6’’ to read ‘‘52.241–7’’; and revising the term ‘‘Defense Mapping (c) * * * ‘‘52.241–11’’ to read ‘‘52.241–1’’; Agency’’ to read ‘‘National Imagery and (3) As provided in 32.904, agency removing the FAR segment and the Mapping Agency’’. corresponding OMB Control Number policies and procedures may authorize PART 32ÐCONTRACT FINANCING amendment of paragraph (a)(1)(i) of the entries for 52.211–5, 52.253–1, and clause to insert a period shorter than 30 53.105; and adding entries, in numerical 9. Section 32.705–1 is amended by days (but not less than 7 days) for order, to read as follows: revising paragraph (b) to read as follows: making contract invoice payments. 1.106 OMB approval under the Paperwork 32.705±1 Clauses for contracting in [FR Doc. 98–28963 Filed 10–29–98; 8:45 am] Reduction Act. advance of funds. BILLING CODE 6820±EP * * * * * * * * * * Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58603

(b) The contracting officer shall insert 474(3)’’ to read ‘‘40 U.S.C. 474(d)(3)’’; PART 53ÐFORMS the clause at 52.232–19, Availability of and in the first sentence of paragraph Funds for the Next Fiscal Year, in (a)(3) by revising ‘‘(42 U.S.C. 2751, et 14. Section 53.228 is amended by solicitations and contracts if a one-year seq.)’’ to read ‘‘(42 U.S.C. 7251, et seq.)’’. revising paragraphs (h) and (i) to read as indefinite-quantity or requirements follows: contract for services is contemplated PART 52ÐSOLICITATION PROVISIONS and the contract— AND CONTRACT CLAUSES 53.228 Bonds and insurance. (1) Is funded by annual * * * * * appropriations; and 12. Section 52.212–5 is amended by (2) Is to extend beyond the initial revising the clause heading and (h) SF 273 (Rev. 10/98) Reinsurance fiscal year (see 32.703–2(b)). paragraph (b)(3) to read as follows: Agreement for a Miller Act Performance Bond. (See 28.106–1(h) and 28.202– PART 33ÐPROTESTS, DISPUTES, 52.212±5 Contract Terms and Conditions 1(a)(4).) SF 273 is authorized for local AND APPEALS Required To Implement Statutes or reproduction and a copy is furnished for Executive OrdersÐCommercial Items. this purpose in Part 53 of the looseleaf 33.104 [Amended] * * * * * edition of the FAR. 10. Section 33.104 is amended in the last sentence of paragraph (e) by Contract Terms and Conditions Required To (i) SF 274 (Rev. 10/98) Reinsurance Implement Statutes or Executive Orders— revising ‘‘7 days’’ to read ‘‘5 days’’. Agreement for a Miller Act Payment Commercial Items (Oct. 1998) Bond. (See 28.106–1(i) and 28.202– PART 36ÐCONSTRUCTION AND * * * * * 1(a)(4).) SF 274 is authorized for local ARCHITECT-ENGINEER CONTRACTS (b) * * * reproduction and a copy is furnished for ll(3) 52.219–8, Utilization of Small, this purpose in Part 53 of the looseleaf 36.601±4 [Amended] Small Disadvantaged and Women-Owned edition of the FAR. 8. Section 36.601–4 is amended in the Small Business Concerns (15 U.S.C. 637(d)(2) fourth sentence of paragraph (a)(4) by and (3)). * * * * * revising the term ‘‘Defense Mapping * * * * * 15. Section 53.301–273 is revised to Agency’’ to read ‘‘National Imagery and read as follows: Mapping Agency’’. 52.244±6 [Amended] 53.301±273 Reinsurance Agreement for a PART 41ÐACQUISITION OF UTILITY 13. Section 52.244–6 is amended by Miller Act Performance Bond. SERVICES revising the date of the clause to read ‘‘(Oct 1998)’’; and in paragraph (c)(3) of BILLING CODE 6820±EP±U 41.103 [Amended] the clause by removing the words 11. Section 41.103 is amended in ‘‘Handicapped Workers’’ and adding paragraph (a)(2) by revising ‘‘40 U.S.C. ‘‘Workers with Disabilities’’. 58604 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58605

16. Section 53.301–274 is revised to 53.301±274 Reinsurance Agreement for a read as follows: Miller Act Payment Bond. 58606 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58607

[FR Doc. 98–28964 Filed 10–29–98; 8:45 am] BILLING CODE 6820±EP±C 58608 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

DEPARTMENT OF DEFENSE and National Aeronautics and Space of a summary of rules appearing in Administration (NASA). Federal Acquisition Circular (FAC) 97– GENERAL SERVICES ACTION: Small Entity Compliance Guide. 09 which amend the FAR. The rules ADMINISTRATION marked with an asterisk (*) are those for SUMMARY: This document is issued which a regulatory flexibility analysis NATIONAL AERONAUTICS AND under the joint authority of the has been prepared in accordance with 5 SPACE ADMINISTRATION Secretary of Defense, the Administrator U.S.C. 604. Further information of General Services and the regarding these rules may be obtained 48 CFR Chapter 1 Administrator for the National by referring to FAC 97–09 which Aeronautics and Space Administration. precedes this document. This document Federal Acquisition Regulation; Small This Small Entity Compliance Guide has may be obtained from the Internet at Entity Compliance Guide been prepared in accordance with http://www.arnet.gov/far. Section 212 of the Small Business FOR FURTHER INFORMATION CONTACT: AGENCIES: Department of Defense (DoD), Regulatory Enforcement Fairness Act of Laurie Duarte, FAR Secretariat, (202) General Services Administration (GSA), 1996 (Public Law 104–121). It consists 501–4225.

LIST OF RULES IN FAC 97±09

Item Subject FAR case Analyst

I ...... Taxpayer Identification Numbers (Interim) ...... 97±003 Olson. II ...... * Electronic Commerce in Federal Procurement (Interim) ...... 97±304 Nelson. III ...... Alternate Dispute ResolutionÐ1996 ...... 97±015 O'Neill. IV ...... Pay-As-You-Go Pension Costs ...... 89±012 Olson. V ...... Rehabilitation Act, Workers With Disabilities ...... 96±610 O'Neill. VI ...... Civil Defense Costs ...... 97±036 Nelson. VII ...... Costs Related to Legal/Other Proceedings ...... 95±020 Nelson. VIII ...... Service Contracts ...... 97±302 Olson. IX ...... Payment Due Dates ...... 97±609 Olson.

Item I—Taxpayer Identification Item II—Electronic Commerce in Item III—Alternative Dispute Numbers (FAR Case 97–003) Federal Procurement (FAR Case 97– Resolution—1996 (FAR Case 97–015) 304) * This interim rule amends FAR Parts 1, This final rule amends FAR 6.302–3, 4, 13, 14, 15, and 52 to implement This interim rule revises FAR Subpart 24.202, 33.2, and the clause at 52.233– Subsection (i) of the Debt Collection 4.5 and makes associated changes to 1 to implement the Administrative Improvement Act of 1996 (Pub. L. 104– FAR Parts 2, 5, 13, and 14, to implement Dispute Resolution Act of 1996 (Pub. L. 134) and Section 1022 of the Taxpayer Section 850 of the National Defense 104–320) and Section 4321(a)(7) of the Relief Act of 1997 (Pub. L. 105–32). The Authorization Act for Fiscal Year 1998 Clinger-Cohen Act of 1996 (Pub. L. 104– rule clarifies requirements for obtaining (Pub. L. 105–85) to eliminate the 106). The rule makes clear the authority Taxpayer Identification Number (TIN) preference for electronic commerce to contract with a neutral person as an information from contractors and within Federal agencies to be conducted exception to requirements for full and forwarding the information to payment on the Federal Acquisition Computer open competition; revises requirements offices; specifies that TIN information Network (FACNET) Architecture. In for certification of a claim under the may be used by the Government to addition, this interim rule promotes the Administrative Dispute Resolution Act collect and report on any delinquent use of cost-effective procedures and to conform to the requirements under amounts arising out of the contractor’s processes that employ electronic the Contract Disputes Act; and specifies relationship with the Government; and commerce in the conduct and that certain dispute resolution administration of Federal procurement clarifies and updates requirements for communications are exempt from systems. In order to facilitate access to reporting contract information and disclosure under the Freedom of Federal procurements, Section 850 payment information to the Internal Information Act. mandates that a single Governmentwide Revenue Service. point of entry be used. Once the Item IV—Pay-As-You-Go Pension Costs (Orders under Federal Supply Administrator of the Office of Federal (FAR Case 89–012) Schedule (FSS) contracts. Ordering Procurement Policy (OFPP) designates officials are required to provide the FSS the single Governmentwide point of The interim rule published as Item I contractor’s TIN (and other information) entry, the FAR will be changed of FAC 84–44 is converted to a final rule to the payment office for each order accordingly. FACNET qualifies as the with amendments at FAR 15.408, under an FSS contract. The General single, Governmentwide point of entry 31.001, 31.205–6, and the clause at Services Administration is planning to until the Administrator of OFPP 52.215–15. The rule amends the FAR for establish an Internet based system by designates the single, Governmentwide consistency with 48 CFR 9904.412, Cost early 1999 that can be used by ordering point of entry. Federal procurement accounting standard for composition officials to obtain this information. In systems that employ electronic and measurement of pension cost (CAS the meantime, the information can be commerce shall apply nationally and 412), and 48 CFR 9904.413, Adjustment obtained from most FSS contract price internationally recognized standards and allocation of pension cost (CAS lists or by requesting it directly from the that broaden interoperability and ease 413). CAS 412 and CAS 413 relate to FSS contractor prior to placing an the electronic interchange of accounting for pension costs under order.) information. negotiated Government contracts. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58609

Item V—Rehabilitation Act, Workers which the Government does not the Secretary of Transportation with With Disabilities (FAR Case 96–610) intervene. This rule is consistent with respect to the Coast Guard, when it is audit guidance issued by the Defense not operating as a service in the Navy, The interim rule published as Item V Contract Audit Agency on August 24, may enter into a contract for of FAC 97–05 is converted to a final rule 1995. Certain Government contracting procurement of severable services for a without change. The rule implements personnel and contractors may have had Department of Labor regulations at 41 period that begins in one fiscal year and common misinterpretations of the ends in the next fiscal year. This CFR 60–741 regarding affirmative action language at FAR 31.205–47 prior to to employ, and advance in employment, authority remains the same for civilian August 24, 1995. For qui tam legal fees agencies other than NASA. qualified individuals with disabilities. incurred prior to August 24, 1995, if the Item VI—Civil Defense Costs (FAR Case Government contracting personnel and Item IX—Payment Due Dates (FAR Case 97–036) the contractor shared a common 97–609) misinterpretation of the language at FAR This final rule deletes the civil 31.205–47, the contracting officer, in This final rule amends FAR Subpart defense cost principle at FAR 31.205–5, consultation with his or her legal 32.9 to clarify that agencies may amend as this guidance is no longer deemed advisors, should determine the the clauses at FAR 52.232–25, Prompt necessary. The acceptability of civil appropriate treatment of those costs on Payment, and 52.232–26, Prompt defense costs will remain governed by a case-by-case basis. Payment for Fixed-Price Architect- the allocability, allowability, and Engineer Contracts, to specify a period reasonableness criteria discussed in Item VIII—Service Contracts (FAR Case shorter than 30 days (but not less than FAR Part 31. 97–302) 7 days) for making contract invoice payments. Item VII—Costs Related to Legal/Other This final rule revises FAR 32.703–3 Proceedings (FAR Case 95–020) and amends 37.106 to implement Dated: October 22, 1998. Section 801 of the National Defense Edward C. Loeb, This final rule amends FAR 31.205– Authorization Act for Fiscal Year 1998 47, Costs related to legal and other (Pub. L. 105–85). Section 801 provides Director, Federal Acquisition Policy Division. proceedings, to clarify the allowability that the Secretary of Defense, the [FR Doc. 98–28965 Filed 10–29–98; 8:45 am] of costs incurred for qui tam suits in Secretary of a military department, or BILLING CODE 6820±EP±U federal register October 30,1998 Friday Technical Amendment;FinalRule Inspections ofSurfaceCoalMines; Safety StandardsforReportingDaily 30 CFRPart77 Mine SafetyandHealthAdministration Department ofLabor Part VI 58611 58612 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations

DEPARTMENT OF LABOR are in a position to suspend operations superintendent. Similarly, a production and allocate resources to correct health manager, maintenance manager, or Mine Safety and Health Administration and safety problems as they develop. operations manager may be equivalent However, the terms ‘‘mine foreman,’’ to an assistant superintendent; and a 30 CFR Part 77 ‘‘superintendent,’’ and ‘‘assistant production supervisor, maintenance RIN 1219±AB15 superintendent’’ may no longer describe supervisor, or pit foreman may be the person with the authority and equivalent to a mine foreman. This list Safety Standards for Reporting Daily responsibility to correct problems is not meant to be an exhaustive one, Inspections of Surface Coal Mines; within certain mine management but merely illustrates the range of titles Technical Amendment structures in the coal mining industry. which may be encountered in mine Not every operation employs persons management organizations today. In AGENCY: Mine Safety and Health with the titles enumerated in the each case, the equivalent officials must Administration (MSHA), Labor. standard. have the authority and responsibility for ACTION: Final rule; technical Given the changing terminology used correcting hazardous conditions or amendment. to describe some mine management problems. In some mines, officials titles in certain mining operations, an SUMMARY: MSHA is making a having these titles may not be nonsubstantive technical amendment to ‘‘equivalent person’’ can satisfy the equivalent officials and would not have its safety standard which requires requirement of the standard. An authority to countersign in all instances. reports of daily inspection for surface ‘‘equivalent person’’ would be a person Other titles, in addition to those with the same responsibility for safety coal mines. This technical amendment described above, may describe mine and health at the mine as a person updates the standard to allow a mine management officials with the specified in paragraphs (d)(1) through official with authority and appropriate authority and responsibility (d)(4), and with the authority to suspend responsibility equivalent to the mine to correct hazards or allocate resources production if necessary and allocate officials specified in the existing to resolve health and safety problems. resources from various segments of the Allowing an ‘‘equivalent person’’ to standard to sign or countersign the daily operation to correct safety or health sign or countersign the examination inspection reports. MSHA is amending hazards as they develop. report does not reduce the protection the language of the standard to reflect MSHA has successfully used the term afforded miners by the existing changes in the management structure of ‘‘equivalent person’’ in other standard. In all cases, the mine official the mining industry because traditional rulemaking contexts in order to allow who signs or countersigns must have the management structures, including job for alternative mine management titles. equivalent authority and responsibility titles, have changed at many mines. In MSHA’s rulemaking for improved for correcting hazards and allocating EFFECTIVE DATE: December 29, 1998. mandatory safety standards for resources as those persons listed in FOR FURTHER INFORMATION CONTACT: ventilation in underground coal mines paragraphs (d)(1) through (d)(4) or the Carol J. Jones, Acting Director, Office of promulgated in 1996, MSHA received existing rule. This minor revision only Standards, Regulations, and Variances, comments stating that some mines no recognizes changes in mine MSHA, phone 703–235–1910. longer use the terms ‘‘mine foreman,’’ management structures and allows for SUPPLEMENTARY INFORMATION: ‘‘mine manager,’’ or ‘‘superintendent.’’ persons equivalent in authority and In order to address those comments and I. Background responsibility to those already specified to provide for alternative management to sign or countersign the reports. Paragraph (d) of existing 30 CFR titles, the final ventilation rule 77.1713 provides that all recorded incorporated the phrase ‘‘or equivalent II. Procedural Matters examination reports of daily inspections mine official’’ in several standards Pursuant to 5 U.S.C. 553(b)(3)(B), for hazardous conditions at surface coal which require the reporting and MSHA finds good cause that the notice mines shall include the action taken to countersigning of the results of certain and public comment procedures of the abate hazardous conditions and shall be inspections in underground mines. The Administrative Procedure Act are signed or countersigned each day by at standards using the phrase ‘‘equivalent unnecessary for this technical least one of the following persons: (1) mine official’’ are: paragraph (d) of amendment. The minor revisions the surface mine foreman; (2) the § 75.311 Main mine fan operation; contained in this rulemaking are assistant superintendent of the mine; (3) paragraph (f) of § 75.360 Preshift nonsubstantive in nature and do not the superintendent of the mine; or, (4) examination; paragraph (a) of § 75.363 affect the safety outcome of the rule. the person designated by the operator as Hazardous conditions; posting, With this rulemaking, the Agency is responsible for health and safety at the correcting and recording; and, reflecting changes in terminology in the mine. paragraph (h) of § 75.364 Weekly industry to allow for an official The requirement that the report ‘‘be examination. equivalent in authority and signed or countersigned’’ helps assure The final rule published today responsibility to a specified official to that examination results are maintained provides that an official equivalent to an sign or countersign the reports. The and made available, and that the official listed in (d)(1) through (d)(4) of authority and responsibility of the appropriate level of mine management § 77.1713 must sign or countersign the official remain the same as in the is made aware of hazardous conditions examination report. The purpose of this existing standard. or problems requiring attention. In change is to allow for persons with the addition, the signing and countersigning functional authority and responsibility III. Paperwork Reduction Act requirement helps assure the integrity of equivalent to those persons specified in This rule does not contain substantive records and enables mine management the standard to sign or countersign the changes to information collection to review the quality of the reports. For purposes of this standard, a requirements that require approval by examinations. general manager, mine manager, or OMB under the Paperwork Reduction The persons specified in paragraph business unit manager having the Act of 1995. The paperwork (d) are responsible for health and safety requisite safety responsibility and requirements for § 77.1713 are approved in the mine and have the authority and authority may be equivalent to a under 1219–0083. Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations 58613

IV. Executive Order 12866 and not have a significant economic impact environmental health or safety effects of Regulatory Flexibility Act on a substantial number of small the rule on children. The Agency has Executive Order 12866 requires that entities. No small governmental determined that the final rule will have regulatory agencies assess both the costs jurisdictions or nonprofit organizations no effect on children. and benefits of regulations. MSHA has are affected. Under the Small Business Regulatory List of Subjects in 30 CFR Part 77 determined that the cost for this rule is Enforcement Fairness Act (SBREFA) Mine safety and health, Surface the same as under the existing rule. The amendments to the RFA, MSHA must mining. primary benefit of the final rule is that include in the final rule a factual basis it reflects changes in terminology in the Dated: October 23, 1998. for this certification. The Agency also industry and allows for an official J. Davitt McAteer, must publish the regulatory flexibility equivalent in authority and certification in the Federal Register, Assistant Secretary for Mine Safety and responsibility to a specified official to Health. along with its factual basis. sign or countersign the reports. MSHA For the reasons set forth in the has determined that this final rule does Factual Basis for Certification preamble, Subpart R of part 77, not meet the criteria of a significant MSHA has determined that this rule subchapter N, title 30 of the Code of regulatory action and, therefore, has not will not have a significant economic Federal Regulations is amended as prepared a separate analysis of costs and impact on a substantial number of small follows: benefits. entities. The final rule merely adds The Regulatory Flexibility Act (RFA) language that conforms the standard to PART 77ÐMANDATORY SAFETY requires regulatory agencies to consider terminology currently used in the STANDARDS, SURFACE COAL MINES a rule’s impact on small entities. Under mining industry. The Agency recognizes AND SURFACE WORK AREAS OF the RFA, MSHA must use the Small that some mine operations no longer use UNDERGROUND COAL MINES Business Administration (SBA) the terms ‘‘mine foreman’’, ‘‘mine definition for a small mine of 500 or manager’’, or ‘‘superintendent.’’ To 1. The authority citation for Part 77 is fewer employees or, after consultation provide for alternative management revised to read as follows: with the SBA Office of Advocacy, titles, the final rule incorporates the Authority: 30 U.S.C. 811. establish an alternative definition for phrase ‘‘a mine official with authority 2. Section 77.1713 is amended by the mining industry by publishing that and responsibility equivalent to a definition in the Federal Register for revising paragraphs (d)(3) and (d)(4) and person listed in paragraphs (1) through adding paragraph (d)(5) to read as notice and comment. MSHA (4) of this section.’’ traditionally has considered small follows: mines to be those with fewer than 20 V. Unfunded Mandates Act § 77.1713 Daily inspection of surface coal employees. For the purposes of the RFA For purposes of the Unfunded mine; certified person; reports of and this certification, MSHA has Mandates Reform Act of 1995, as well inspection. analyzed the impact of the final rule on as E.O. 12875, this rule does not include * * * * * all mines, on those with fewer than 20 any Federal mandate that may result in (d) * * * employees, and on those with 500 or increased expenditures by State, local, (3) The superintendent of the mine; fewer employees, and has concluded and tribal governments, or increased (4) The person designated by the that there is no additional cost to the expenditures by the private sector of operator as responsible for health and mining industry. more than $100 million. safety at the mine; or, Regulatory Flexibility Certification VI. Executive Order 13045 (5) An equivalent mine official. In accordance with § 605 of the RFA, In accordance with Executive Order [FR Doc. 98–29089 Filed 10–29–98; 8:45 am] MSHA certifies that this final rule will 13045, MSHA has evaluated the BILLING CODE 4510±43±P federal register October 30,1998 Friday of EmergencyWithRespecttoSudan Notice ofOctober27,1998ÐContinuation The President Part VII 58615

58617

Federal Register Presidential Documents Vol. 63, No. 210

Friday, October 30, 1998

Title 3— Notice of October 27, 1998

The President Continuation of Emergency With Respect to Sudan

On November 3, 1997, by Executive Order 13067, I declared a national emergency to deal with the unusual and extraordinary threat to the national security and foreign policy of the United States constituted by the actions and policies of the Government of Sudan. By Executive Order 13067, I imposed trade sanctions on Sudan and blocked Sudanese government assets. Because the Government of Sudan has continued its activities hostile to United States interests, the national emergency declared on November 3, 1997, and the measures adopted on that date to deal with that emergency must continue in effect beyond November 3, 1998. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing the national emergency for 1 year with respect to Sudan. This notice shall be published in the Federal Register and transmitted to the Congress. œ–

THE WHITE HOUSE, October 27, 1998. [FR Doc. 98–29373 Filed 10–29–98; 11:29 am] Billing code 3195–01–P i

Reader Aids Federal Register Vol. 63, No. 210 Friday, October 30, 1998

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING OCTOBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since the revision date of each title. Laws 523±5227 3 CFR 315...... 57045 430...... 53275 Presidential Documents Proclamations: 534...... 53275 Executive orders and proclamations 523±5227 7128...... 52957 581...... 56537 The United States Government Manual 523±5227 7129...... 53271 7130...... 53541 582...... 56537 591...... 56430 Other Services 7131...... 53777 7132...... 54027 Proposed Rules: Electronic and on-line services (voice) 523±4534 532...... 54616 Privacy Act Compilation 523±3187 7133...... 54029 7134...... 54551 Public Laws Update Service (numbers, dates, etc.) 523±6641 7135...... 55309 7 CFR TTY for the deaf-and-hard-of-hearing 523±5229 7136...... 55311 Ch. XXXII...... 57233 7137...... 55315 25...... 53779 ELECTRONIC RESEARCH 7138...... 55317 301 ...... 52579, 54037, 56537 World Wide Web 7139...... 55319 319...... 54553, 56781 7140...... 55935 354...... 54553, 56781 Full text of the daily Federal Register, CFR and other 7141...... 56073 457 ...... 55497, 55779, 57046 publications: 7142...... 56075 723...... 55937, 55939 http://www.access.gpo.gov/nara 7143...... 57889 800...... 55321 Federal Register information and research tools, including Public Executive Orders: 905...... 55497 12978 (See Notice of Inspection List, indexes, and links to GPO Access: 906...... 54553 October 19, 1998)...... 56079 922...... 54341 http://www.nara.gov/fedreg 13011 (See EO 931...... 55005 E-mail 13103) ...... 53273 948...... 54342 13021 (amended by 958...... 55779 PENS (Public Law Electronic Notification Service) is an E-mail EO 13104)...... 56535 966...... 54556 service that delivers information about recently enacted Public 13067 (See Notice of 987...... 54344 Laws. To subscribe, send E-mail to October 27, 1998)...... 58617 989...... 56781 [email protected] 13103...... 53273 993...... 52959 13104...... 56535 with the text message: 997...... 57891 Administrative Orders: subscribe publaws-l 998...... 57891 Presidential Determinations: 1150...... 57893 Use [email protected] only to subscribe or unsubscribe to No. 98±36 of 1207...... 53543 PENS. We cannot respond to specific inquiries at that address. September 25, 1998 1464...... 55937, 55939 Reference questions. Send questions and comments about the (See Department of 1710...... 53276 Federal Register system to: the Air Force 1724...... 58283 Notice)...... 56921 [email protected] 1726...... 58283 No. 98±37 of 1951...... 56290 The Federal Register staff cannot interpret specific documents or September 29, Proposed Rules: regulations. 1998 ...... 54031 1...... 53852 No. 98±38 of 51...... 56096 FEDERAL REGISTER PAGES AND DATES, OCTOBER September 29, 201...... 55964 1998 ...... 54033 205...... 57624 52579±52956...... 1 No. 98±39 of 52957±53270...... 2 225...... 54617 September 30, 246...... 54629 53271±53542...... 5 1998 ...... 55001 53543±53778...... 6 300...... 55559 No. 98±40 of 319...... 55559, 57935 53779±54026...... 7 September 30, 54027±54340...... 8 800...... 52987 1998 ...... 55003 967...... 54382 54341±54552...... 9 No. 98±41 of 1065...... 54383 54553±55004...... 13 September 30, 1260...... 57627 55005±55320...... 14 1998 ...... 54035 1788...... 54385 55321±55496...... 15 Notice of October 19, 1924...... 53616 55497±55778...... 16 1998 ...... 56079 1940...... 57935 55779±55934...... 19 Notice of October 27, 1944...... 57935 55935±56080...... 20 1998) ...... 58617 56081±56534...... 21 Memorandum of July 8 CFR 56535±56780...... 22 16, 1997 (See 56781±57044...... 23 Environmental 212...... 55007 57045±57232...... 26 Protection Agency 245...... 55007 57233±57576...... 27 final rule) ...... 57364 286...... 54526 57577±57890...... 28 Proposed Rules: 57891±58282...... 29 5 CFR 103...... 56869 58283±58618...... 30 231...... 57045 273...... 56869 ii Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Reader Aids

9 CFR 55324, 55325, 55327, 55500, 37...... 54258 402...... 55333 55503, 55504, 55506, 55515, 3...... 55012 284...... 53565 598...... 53262 55517, 55520, 55522, 55524, 50...... 53546 Proposed Rules: 888...... 52858 55527, 55528, 55783, 55918, 77...... 53547 2...... 55682 1710...... 54332 55940, 56541, 56542, 56544, 78 ...... 53548, 53780, 53781 3...... 57081 Proposed Rules: 56545, 56547, 57048, 57240, 93...... 53783 4...... 53853, 57086 35...... 54422 57244, 57577, 57579, 57580, 130...... 53783 153 ...... 53853, 55682, 57086 36...... 54422 57582, 57583, 57895, 58102, 157 ...... 53853, 55682, 57086 37...... 54422 Proposed Rules: 58290 381...... 57078 161...... 55562, 55563 91...... 57882 61...... 53532 250...... 55562, 55563 570...... 57882 10 CFR 67...... 53532 284...... 55562, 55563 3280...... 58570 71 ...... 52589, 52590, 52591, 341...... 57081 50...... 57236 3282...... 54528 52963, 52964, 52965, 52966, 342...... 57081 72...... 54559 53279, 53802, 54349, 54350, 343...... 57081 26 CFR 625...... 54196 55329, 55330, 55331, 55530, 346...... 57081 1003...... 58288 1 ...... 52600, 52971, 55020, 55531, 55532, 55942, 56548, 357...... 57081 55333, 56559 Proposed Rules: 56549, 56550, 56551, 56707, 362...... 57081 54...... 57546 35...... 55559 57585, 57586, 57587, 57588, 375 ...... 53853, 55682, 57086 301...... 56559 50 ...... 52990, 54080, 54389, 58291, 58299 380...... 55682, 55715 602 ...... 52971, 55020, 56559 56098 73...... 53279, 53804 385...... 55682, 57081 Proposed Rules: 52...... 56098 95...... 57899 63...... 55056, 57627 19 CFR 1 ...... 52660, 55355, 55564, 97 ...... 54572, 54573, 57053, 55918, 56878, 57636 72...... 56098 57054 4...... 52967 430...... 58330 53...... 53862 107...... 57162 24...... 55332 54...... 57546 108...... 57162 11 CFR Proposed Rules: 301...... 56878 135...... 53804 171...... 57628 Proposed Rules: 141...... 53532 27 CFR 102...... 55056 142...... 53532 20 CFR 53...... 52601 103...... 55056 440...... 55175 10...... 56752 106...... 55056 178...... 58272 Proposed Rules: 404...... 57690 179...... 58272 12 CFR 39 ...... 52992, 52994, 54080, 422...... 56552 54391, 54393, 54395, 54399, Proposed Rules: 28 CFR Ch. 7 ...... 57938 54401, 54635, 55056, 55059, 404...... 54417 2...... 57060 28...... 57047 55061, 55063, 55065, 55343, 416...... 54417 30...... 55462, 55468 25...... 58303 55345, 55346, 55348, 55350, 422...... 57056 500...... 55774 201...... 56785 55352, 55560, 56579, 56582, 654...... 53244 208...... 55462 503...... 55774 57078, 57257, 57258, 57260, 655...... 53244 551...... 55774 220...... 57237 57262, 57263, 57266, 57953, Proposed Rules: 224...... 57237 57955 21 CFR 31...... 55069 263...... 55468 65 ...... 55290, 55920, 56125 101...... 57594 364...... 55462, 55468 66...... 55290 172...... 57596 29 CFR 570...... 55462, 55468 71 ...... 52996, 52997, 52998, 175...... 56786 70a...... 56740 611...... 58289 52999, 53000, 53001, 53002, 177...... 55942 71...... 56740 615...... 58289 53319, 53320, 53321, 53322, 178 ...... 55944, 55945, 56789 1952...... 53280 620...... 58289 53323, 53324, 53325, 53747, 201...... 56789 2520...... 58335 627...... 58289 54403, 54637, 55354, 55971, 343...... 56802 2560...... 58335 701...... 57942, 57943 55972, 55973, 55974, 55975, 520...... 52968 2590...... 57546 711...... 57945 55976, 55977, 55978, 57268, 522...... 53577, 53578 4044...... 55333, 58101 714...... 57950 57627 556 ...... 53578, 54352, 57245 1502...... 57236 121...... 58331 558 ...... 52968, 52969, 54352, Proposed Rules: 1503...... 57236 147...... 55290 57245, 57248 4022...... 57228, 57229 1505...... 57236 573...... 53579 4044...... 57228, 57229 1506...... 57236 15 CFR 814...... 54042 4050...... 57229 1507...... 57236 29...... 53564 878...... 57059 30 CFR Proposed Rules: 740...... 55017 900...... 56555 48...... 53750 614...... 56873 743...... 55017 Proposed Rules: 75...... 53750 616...... 56873 902...... 57589 216...... 54082, 55564 77...... 53750, 58612 618...... 56873 Proposed Rules: 315...... 55067 203...... 57249 621...... 56873 Ch. VII...... 54638 352...... 56584 915...... 55025 601...... 55067 13 CFR 16 CFR 917...... 53252 872...... 53859 121...... 56786 Proposed Rules: 1020...... 57957 Proposed Rules: 125...... 56786 308...... 58524 1310...... 55811 57...... 58104 72...... 55811 14 CFR 17 CFR 22 CFR 75...... 55811 Ch. 1 ...... 56539 4...... 58300 41...... 52969 936...... 55979 23...... 53278, 55012 10...... 55784 935...... 53618 25...... 53278 201...... 57164 23 CFR 943...... 53003 33...... 53278 275...... 54308 1240...... 57904 31 CFR 39 ...... 52579, 52583, 52585, 279...... 54308 1270...... 53580 52587, 52961, 53549, 53550, Proposed Rules: 1275...... 55796 586...... 54575 53552, 53553, 53555, 53556, 240...... 54404 1335...... 54044 Proposed Rules: 53558, 53560, 53562, 53798, 405...... 53326 1345...... 52592 212...... 54426 53800, 54938, 54039, 54347, 54562, 54564, 54565, 54567, 18 CFR 24 CFR 32 CFR 54569, 54570, 55015, 55321, 35...... 53805 401...... 55333 41...... 56081 Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Reader Aids iii

199...... 56081 180 ...... 53291, 53294, 53813, 2240...... 52615 52...... 54090 216...... 56819 53815, 53818, 53820, 53826, 2250...... 52615 54...... 54090 655...... 53809 53829, 53835, 53837, 54058, 2270...... 52615 61...... 54430 54066, 54357, 54360, 54362, 3100...... 52946 64...... 54090, 55077 33 CFR 54587, 54594, 55533, 55540, 3150...... 52946 65...... 55988 66...... 55946 57062, 57067 3160...... 52946 69...... 54430 100...... 53586 185...... 57062 3180...... 52946 73 ...... 53008, 53009, 54431, 110...... 55027 186...... 57062, 57067 3200...... 52946 55831, 57637, 58358 117 ...... 53281, 54353, 55029, 239...... 57026 3500...... 52946 74...... 58358 55030, 55947, 57250 257...... 57026 3510...... 52946 101...... 53350 120...... 53587 258...... 57026 3520...... 52946 48 CFR 128...... 53587 261...... 54356 3530...... 52946 165 ...... 52603, 53593, 55027, 264...... 53844, 56710 3540...... 52946 Ch. 1...... 58586, 58609 55532, 56082 265...... 53844, 56710 3550...... 52946 1...... 58587, 58602 Proposed Rules: 266...... 54356 3580...... 52946 2...... 58590 117...... 57963 268...... 54356 3590...... 52946 4...... 58587, 58590 126...... 57964 270...... 56710 3600...... 52946 5...... 58590 165...... 54639 271 ...... 54356, 56086, 56710, 3800...... 52946 6...... 58594, 58602 56830, 56834, 57353, 57605, 3860...... 52946 13...... 58587, 58590 34 CFR 57912 4300...... 55548 14 ...... 58587, 58590, 58602 300 ...... 53847, 53848, 57608 15 ...... 58587, 58595, 58602 200...... 54996 44 CFR 668...... 56756 302...... 54356 19...... 56738, 58602 674...... 55948 745...... 55547, 57637 64 ...... 54369, 54371, 55956 22...... 58598 675...... 52854 763...... 57251 65 ...... 54373, 54376, 55035, 24...... 58594 702...... 57570 Proposed Rules: 58316, 58319 31...... 58595, 58599 67 ...... 54378, 55037, 58338 32 ...... 58590, 58600, 58601, Proposed Rules: 52 ...... 53350, 54089, 54645, 361...... 55292 55812, 55983, 56127, 56292, Proposed Rules: 58602 56394, 56590, 56881, 57086 67 ...... 54427, 55072, 58321 33...... 58594, 58602 35 CFR 60...... 57748 36...... 58602 45 CFR 37...... 58600 Proposed Rules: 61...... 57748 144...... 57546 41...... 58602 117...... 56589 62...... 54090 63 ...... 54646, 55178, 55812, 146...... 57546 46...... 57878 36 CFR 56707, 57748 148...... 57546 52 ...... 58587, 58594, 58595, 276...... 57919 58598, 58602 200...... 53811 65...... 57748 53...... 58602 811...... 54354 68...... 55983 Proposed Rules: 81...... 53350, 57086 61...... 58341 212...... 55040 37 CFR 97...... 56292 1628...... 56591 215...... 55040 98...... 56394 1635...... 56594 217...... 55040, 56290 1...... 52609 180...... 55565, 56882 225...... 55040 Proposed Rules: 46 CFR 185...... 55565 227...... 55040 1...... 53498 268...... 56886 15...... 57252 230...... 55040 38 CFR 271 ...... 56128, 56891, 57996 28...... 52802 237...... 54078, 55040 300 ...... 53005, 55985, 55986 107...... 52802 242...... 55040 3...... 53593 721...... 57089 108...... 52802 247...... 55040 Proposed Rules: 745...... 52662 109...... 52802 252...... 55040 3...... 58336 799...... 54646, 54649 133...... 52802 253...... 55040 17...... 54756 168...... 52802 903...... 56849 41 CFR 199...... 52802, 56066 915...... 56849 39 CFR 101-44...... 56089 351...... 55039 916...... 56849 6...... 57911 105-60...... 56839 503...... 53308 919...... 56849 111 ...... 55454, 56565, 57597 935...... 56849 501...... 53812 42 CFR 47 CFR 970...... 56849 Proposed Rules: 68a...... 58312 0...... 52617 1609...... 55336 111...... 57970 400...... 52610 1...... 56090 1632...... 55336 403...... 52610 1...... 52983, 54073 1652...... 55336 40 CFR 405...... 52614 2...... 54073 1817...... 56091 9...... 53980, 56968 409...... 53301 20...... 54073 1834...... 56091 51...... 57356 410...... 52610, 53301 26...... 56573 1852...... 56091 52 ...... 52983, 53282, 53596, 411...... 52610, 53301 64...... 54379 Proposed Rules: 54050, 54053, 54358, 54585, 412...... 52614 69...... 55334 8...... 57568 55804, 55949, 56083, 56086, 413...... 52614, 53301 73 ...... 52983, 54380, 54599, 42...... 57568 56568, 56824 417...... 52610 54600, 55807, 55808, 55809, 1201...... 52666 59...... 55175 422...... 52610, 54526 55958, 56578, 57608, 57609 1205...... 52666 60...... 53288, 56707 424...... 53301 79...... 55959 1206...... 52666 62...... 54055, 54058 483...... 53301 80...... 53312 1211...... 52666 63...... 53980 489...... 53301 95...... 54073 1213...... 52666 68...... 55954 493...... 55031 97...... 54073 1215...... 52666 72...... 57356 1001...... 57918 Proposed Rules: 1237...... 52666 75...... 57356 Proposed Rules: Ch. 1 ...... 56892 1252...... 52666 80...... 54753 63...... 58336 0...... 53619 1253...... 52666 81...... 53282 416...... 52663 1...... 53350, 54090 82...... 53290 488...... 52663 20...... 52665 49 CFR 86...... 56968, 58101 22...... 53350 1...... 57610 89...... 56968 43 CFR 25...... 54100 107...... 52844 96...... 57356 2200...... 52615 32...... 56900 171...... 52844, 57929 148...... 54356 2210...... 52615 43...... 54090, 56900 172...... 52844 iv Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Reader Aids

173...... 52844 231...... 54104 17 ...... 52632, 52824, 53596, 54610, 54753, 55340, 55341, 175...... 52844 232...... 54104 54938, 54956, 54972, 54975, 55342, 56095, 57255 176...... 52844 395...... 54432 55553, 57610 Proposed Rules: 177...... 52844, 58323 396...... 54432 20...... 54016, 54022 17 ...... 53010, 53620, 53623, 178...... 52844 571 ...... 52626, 53848, 54652, 21...... 52632 53631, 54660, 55839, 56128, 179...... 52844 57089, 57091, 57638 22...... 52632 56134, 57640, 57642 180...... 52844 572...... 53848 23...... 52632, 58325 20 ...... 53635, 54753, 55840 199...... 58324 574...... 55832 216...... 52984, 56094 222...... 53635 213...... 54078 580...... 52630 217...... 55053, 57610 227...... 53635, 56596 268...... 54600 585...... 57091 227 ...... 52984, 55053, 56094, 285...... 57093 587...... 57091 57610 Proposed Rules: 600...... 52676 107...... 58460 595...... 57091 285...... 54078, 55339 630 ...... 54661, 55572, 57093 171...... 58460 1146...... 55996, 58358 600 ...... 52984, 53313, 56094 644...... 54433 172...... 58460 622...... 57589, 58327 173...... 58460 50 CFR 630...... 55998 648 ...... 52676, 55355, 55357, 177...... 58460 2...... 52632 648 ...... 52639, 56867, 57622, 56135 178...... 58460 10...... 52632 57931, 58328 649...... 55357 180...... 58460 13...... 52632 660 ...... 53313, 53317, 55558, 660...... 53636, 58359 192...... 57269 14...... 52632 55809 678...... 57093 195...... 57269 15...... 52632 679 ...... 52642, 52658, 52659, 679 ...... 56601, 57094, 57996 229...... 54104 16...... 52632 52985, 52986, 53318, 54381, Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Reader Aids v

REMINDERS Individuals from Northeastern United States organizations; uniform The items in this list were disadvantaged fisheriesÐ administrative requirements; editorially compiled as an aid backgrounds; NIH clinical Dealer and vessel comments due by 11-3-98; to Federal Register users. research loan repayment reporting requirements; published 9-4-98 Inclusion or exclusion from program; published 10-30- published 10-1-98 COMMERCE DEPARTMENT 98 this list has no legal Dealer reporting Export Administration significance. INTERIOR DEPARTMENT requirements; published Bureau Fish and Wildlife Service 10-29-98 Export licensing: RULES GOING INTO Endangered Species INTERIOR DEPARTMENT Commerce control listÐ Convetion: EFFECT OCTOBER 30, Minerals Management Encryption items 1998 Appendices and Service transferred from U.S. amendmentsÐ Royalty management: Munitions List to Bigleaf mahogany; AGRICULTURE Royalty relief for producing Commerce Control List; published 10-30-98 DEPARTMENT leases and certain comments due by 11-6- 98; published 9-22-98 Agricultural Marketing NATIONAL AERONAUTICS existing leases in deep Service AND SPACE water COMMERCE DEPARTMENT ADMINISTRATION Dairy promotion and research Correction; published 10- National Oceanic and order; published 10-29-98 Federal Acquisition Regulation 27-98 Atmospheric Administration (FAR): AGRICULTURE PENSION BENEFIT Endangered and threatened DEPARTMENT Electronic commerce in GUARANTY CORPORATION species: Federal procurement; Rural Utilities Service Single-employer plans: Sea turtle conservation; published 10-30-98 Electric loans: Allocation of assetsÐ shrimp trawling Taxpayer identification Interest assumptions for requirementsÐ Electric program standard numbers; published 10-30- valuing benefits; Turtle excluder devices; contract forms; published 98 10-30-98 published 10-15-98 comments due by 11-6- Technical amendments; 98; published 10-14-98 DEFENSE DEPARTMENT published 10-30-98 Federal Acquisition Regulation COMMENTS DUE NEXT Fishery conservation and Workers with disabilities; management: (FAR): employment and WEEK West Coast States and Electronic commerce in advancement; published Western Pacific Federal procurement; 10-30-98 AGRICULTURE fisheriesÐ published 10-30-98 DEPARTMENT TRANSPORTATION Pacific Coast groundfish; Taxpayer identification DEPARTMENT Agricultural Marketing numbers; published 10-30- comments due by 11-5- Federal Aviation Service 98 98; published 10-6-98 Administration Kiwifruit grown inÐ Technical amendments; CORPORATION FOR California; comments due by published 10-30-98 Airworthiness directives: NATIONAL AND 11-3-98; published 9-3-98 Workers with disabilities; Airbus; published 9-25-98 COMMUNITY SERVICE employment and Bob Fields Aerocessories; Soybean promotion and Foster grandparent program; advancement; published published 10-15-98 research program; comments due by 11-2-98; 10-30-98 Glaser-Dirks Flugzeugbau comments due by 11-3-98; published 9-3-98 published 9-4-98 FEDERAL GmbH; published 9-17-98 Retired and senior volunteer COMMUNICATIONS Short Brothers plc; AGRICULTURE program; comments due by COMMISSION published 9-25-98 DEPARTMENT 11-2-98; published 9-3-98 Radio broadcasting: TRANSPORTATION Animal and Plant Health Senior companion program; Inspection Service Broadcast licensees; main DEPARTMENT comments due by 11-2-98; studio and public Research and Special Interstate transportation of published 9-3-98 inspection file Programs Administration animals and animal products ENVIRONMENTAL (quarantine): requirements; published Hazardous materials: PROTECTION AGENCY 10-22-98 Brucellosis in cattle and Air pollutants, hazardous; Hazardous materials bisonÐ GENERAL SERVICES transportationÐ national emission standards: ADMINISTRATION Procedures for retaining Ferroalloys production; Miscellaneous class free State status; Federal Acquisition Regulation amendments; comments due by 11-4- (FAR): comments due by 11-2- 98; published 10-13-98 reconsideration petitions 98; published 9-17-98 Electronic commerce in denied; published 10- Air quality implementation Federal procurement; 30-98¶ Plant-related quarantine, plans; √A√approval and published 10-30-98 foreign: promulgation; various Taxpayer identification Orchids in growing media; States; air quality planning numbers; published 10-30- RULES GOING INTO comments due by 11-2- purposes; designation of 98 EFFECT NOVEMBER 1, 98; published 9-1-98 areas: Technical amendments; 1998 AGRICULTURE Connecticut; comments due published 10-30-98 DEPARTMENT by 11-4-98; published 10- Workers with disabilities; COMMERCE DEPARTMENT Aerial photographic 5-98 employment and National Oceanic and reproductions; fee schedule; Drinking water: advancement; published Atmospheric Administration comments due by 11-6-98; National primary and 10-30-98 Fishery conservation and published 10-7-98 secondary drinking water HEALTH AND HUMAN management: COMMERCE DEPARTMENT regulationsÐ SERVICES DEPARTMENT Caribbean, Gulf, and South Grants and agreements with Chemical and Public Health Service Atlantic fisheriesÐ institutions of higher microbiological Fellowships, internships, Red snapper; published education, hospitals, other contaminants; analytical training: 10-30-98 non-profit, and commercial methods for compliance vi Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Reader Aids

determinations; HEALTH AND HUMAN SECURITIES AND Class E airspace; comments comments due by 11-2- SERVICES DEPARTMENT EXCHANGE COMMISSION due by 11-2-98; published 98; published 9-3-98 Inspector General Office, Securities: 10-2-98 Chemical and Health and Human Services Securities depository VOR Federal airways; microbiological Department accounts; increased comments due by 11-4-98; contaminants; analytical Health care programs; fraud efficiency and certainty in published 10-5-98 methods for compliance and abuse: processing of TRANSPORTATION determinations; Health Insurance Portability reorganization events, DEPARTMENT comments due by 11-2- tender offers, and and Accountability ActÐ Federal Highway 98; published 9-3-98 exchange offers; Medicare and State health Administration Pesticides; tolerances in food, comments due by 11-3- care programs; anti- Motor carrier safety standards: animal feeds, and raw fraud and abuse 98; published 9-4-98 Driver qualificationsÐ agricultural commodities: authority increase TRANSPORTATION Alder bark; comments due through exclusion and DEPARTMENT Medical examination by 11-4-98; published 10- civil money penalty Coast Guard certificates; comments due by 11-3-98; 5-98 provisions; comments Ports and waterways safety: published 8-5-98 Superfund programs: due by 11-2-98; Cleveland Harbor, OH; National oil and hazardous published 9-2-98 regulated navigation area; TRANSPORTATION substances contingency JUSTICE DEPARTMENT comments due by 11-5- DEPARTMENT planÐ Immigration and 98; published 8-7-98 National Highway Traffic National priorities list Naturalization Service Vessel documentation and Safety Administration update; comments due Immigration: measurement: Motor vehicle safety by 11-2-98; published AliensÐ Undocumented barges over standards: 10-2-98 Surrender of aliens 100 gross tons; Lamps, reflective devices, FEDERAL ordered removed from mandatory numbering and associated COMMUNICATIONS U.S.; comments due by system; comments due by equipmentÐ COMMISSION 11-3-98; published 9-4- 11-3-98; published 7-6-98 Daytime running lamps; Common carrier services: 98 TRANSPORTATION glare reduction; Satellite communicationsÐ LABOR DEPARTMENT DEPARTMENT comments due by 11-5- 18GHz frequency band Mine Safety and Health Acquisition regulations: 98; published 9-18-98 redesignation, blanket Administration Miscellaneous amendments; TREASURY DEPARTMENT licensing of satellite Coal and metal and nonmetal comments due by 11-2- Internal Revenue Service Earth stations, and 98; published 10-1-98 mine safety and health: Excise taxes: allocation of additional Underground minesÐ TRANSPORTATION spectrum for broadcast Charitable organizations Lighting equipment, coal DEPARTMENT satellite service use; qualification requirements; dust/rock dust Federal Aviation comments due by 11-5- excess benefit analyzers, and methane Administration 98; published 10-8-98 transactions; comments detectors; regulations Airmen certification: due by 11-2-98; published Organization, functions, and improved and Mechanics and repairmen; 8-4-98 authority delegations: eliminated; comments certification and training TREASURY DEPARTMENT Wireless communications due by 11-2-98; requirements; comments servicesÐ published 9-3-98 due by 11-6-98; published Government Securities Act; implementation: Gettysburg, PA, reference Coal mine safety and health: 7-9-98 facility closing; biennial Underground minesÐ Pilots, flight instructors, and Brokers and dealers regulatory review; reporting requirement; Approved books and ground instructors outside comments due by 11-5- Year 2000 compliance; records; regulations U.S.; licensing and 98; published 10-6-98 comments due by 11-4- improved and training; comments due by 98; published 10-5-98 Radio stations; table of eliminated; comments 11-4-98; published 10-5- assignments: due by 11-2-98; 98 Georgia; comments due by published 9-3-98 Airworthiness directives: LIST OF PUBLIC LAWS 11-2-98; published 9-17- Coal mine respirable dust Boeing; comments due by 98 samplers; calibration 11-2-98; published 9-2-98 This is a continuing list of Missouri; comments due by and maintenance Bombardier; comments due public bills from the current 11-2-98; published 9-17- procedures; regulations by 11-2-98; published 10- session of Congress which 98 improved and 2-98 have become Federal laws. It New Mexico; comments due eliminated; comments Gulfstream; comments due may be used in conjunction by 11-2-98; published 9- due by 11-2-98; by 11-2-98; published 9-3- with ``P L U S'' (Public Laws 17-98 published 9-3-98 98 Update Service) on 202±523± Texas; comments due by POSTAL SERVICE McDonnell Douglas; 6641. This list is also 11-2-98; published 9-17- Domestic Mail Manual: comments due by 11-2- available online at http:// 98 Commercial mail receiving 98; published 9-3-98 www.nara.gov/fedreg. HEALTH AND HUMAN agency; delivery of mail; New Piper Aircraft, Inc.; The text of laws is not SERVICES DEPARTMENT procedure clarification; comments due by 11-5- published in the Federal Health Resources and comments due by 11-2- 98; published 9-24-98 Register but may be ordered Services Administration 98; published 9-2-98 Pratt & Whitney; comments in ``slip law'' (individual Medically underserved Postage meters manufacture due by 11-2-98; published pamphlet) form from the populations and health and useÐ 9-2-98 Superintendent of Documents, professional shortage areas; Postal security devices Saab; comments due by 11- U.S. Government Printing designation process and indicia (postmarks) 2-98; published 10-2-98 Office, Washington, DC 20402 consolidation; comments specifications; Class D and Class E (phone, 202±512±1808). The due by 11-2-98; published comments due by 11-2- airspace; comments due by text will also be made 9-1-98 98; published 9-2-98 11-2-98; published 10-2-98 available on the Internet from Federal Register / Vol. 63, No. 210 / Friday, October 30, 1998 / Reader Aids vii

GPO Access at http:// administrative site for the Gandhi in the District of subscribe, send E-mail to www.access.gpo.gov/suÐdocs/. Rogue River National Forest Columbia. (Oct. 26, 1998; 112 [email protected] with Some laws may not yet be and use the proceeds for the Stat. 2701) the text message: available. construction or improvement of S. 2206/P.L. 105±285 offices and support buildings H.R. 2411/P.L. 105±280 Community Opportunities, subscribe PUBLAWS-L Your for the Rogue River National Accountability, and Training Name. To provide for a land Forest and the Bureau of and Educational Services Act exchange involving the Cape Land Management. (Oct. 26, Cod National Seashore and to of 1998 (Oct. 27, 1998; 112 1998; 112 Stat. 2698) Note: This service is strictly extend the authority for the Stat. 2702) for E-mail notification of new Cape Cod National Seashore H.R. 4081/P.L. 105±283 Last List October 28, 1998 public laws. The text of laws Advisory Commission. (Oct. To extend the deadline under 26, 1998; 112 Stat. 2694) the Federal Power Act is not available through this H.R. 2886/P.L. 105±281 applicable to the construction service. PENS cannot respond of a hydroelectric project in Public Laws Electronic to specific inquiries sent to Granite Watershed Notification Service Enhancement and Protection the State of Arkansas. (Oct. this address. Act of 1998 (Oct. 26, 1998; 26, 1998; 112 Stat. 2700) (PENS) 112 Stat. 2695) H.R. 4284/P.L. 105±284 H.R. 3796/P.L. 105±282 To authorize the Government PENS is a free electronic mail To authorize the Secretary of of India to establish a notification service of newly Agriculture to convey the memorial to honor Mahatma enacted public laws. To