Pages 60995±61206 Vol. 62 11±14±97 No. 220 federal register November 14,1997 Friday Office (GPO). Access Regulations (CFR) Free, easy,onlineaccesstoselected The released concurrently. that theonlineandprintedversionsof until acompletesetisavailable.GPOtakingstepsso incrementally throughoutcalendaryears1996and1997 GPO Access services andaccessmethods,seepageIIorcontactthe For additionalinformationon http://www.access.gpo.gov/nara/cfr service astheybecomeavailable. New titlesand/orvolumeswillbeaddedtothisonline Committee oftheFederalRegister. official onlineeditionsauthorizedbytheAdministrative announcement ontheinsidecoverofthisissue. For informationonbriefingsinWashington,DC,seethe Briefings onhowtousetheFederalRegister ★ ★ CFR Code ofFederalRegulations , aserviceoftheUnitedStatesGovernmentPrinting Email: [email protected] Phone: toll-free:1-888-293-6498 and User SupportTeamvia: Federal Register CFR Now AvailableOnline GPO Access volumes isnowavailablevia (Selected Volumes) titles willbeaddedto via GPO Access on GPO Access Code ofFederal CFR GPO Access products, , arethe will be GPO 1 II Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997

SUBSCRIPTIONS AND COPIES PUBLIC Subscriptions: Paper or fiche 202–512–1800 Assistance with public subscriptions 512–1806 General online information 202–512–1530; 1–888–293–6498 FEDERAL REGISTER Published daily, Monday through Friday, (not published on Saturdays, Sundays, or on official holidays), Single copies/back copies: by the Office of the Federal Register, National Archives and Paper or fiche 512–1800 Records Administration, Washington, DC 20408, under the Federal Assistance with public single copies 512–1803 Register Act (49 Stat. 500, as amended; 44 U.S.C. Ch. 15) and FEDERAL AGENCIES the regulations of the Administrative Committee of the Federal Subscriptions: Register (1 CFR Ch. I). Distribution is made only by the Superintendent of Documents, U.S. Government Printing Office, Paper or fiche 523–5243 Washington, DC 20402. Assistance with Federal agency subscriptions 523–5243 The Federal Register provides a uniform system for making available to the public regulations and legal notices issued by Federal agencies. These include Presidential proclamations and FEDERAL REGISTER WORKSHOP Executive Orders and Federal agency documents having general applicability and legal effect, documents required to be published THE FEDERAL REGISTER: WHAT IT IS AND by act of Congress and other Federal agency documents of public interest. Documents are on file for public inspection in the Office HOW TO USE IT of the Federal Register the day before they are published, unless FOR: Any person who uses the Federal Register and Code of Federal earlier filing is requested by the issuing agency. Regulations The seal of the National Archives and Records Administration WHO: Sponsored by the Office of the Federal Register. authenticates this issue of the Federal Register as the official serial WHAT: Free public briefings (approximately 3 hours) to present: publication established under the Federal Register Act. 44 U.S.C. 1. The regulatory process, with a focus on the Federal Register 1507 provides that the contents of the Federal Register shall be system and the public’s role in the development of judicially noticed. regulations. 2. The relationship between the Federal Register and Code The Federal Register is published in paper, 24x microfiche and of Federal Regulations. as an online database through GPO Access, a service of the U.S. Government Printing Office. The online edition of the Federal 3. The important elements of typical Federal Register Register on GPO Access is issued under the authority of the documents. Administrative Committee of the Federal Register as the official 4. An introduction to the finding aids of the FR/CFR system. legal equivalent of the paper and microfiche editions. The online WHY: To provide the public with access to information necessary to database is updated by 6 a.m. each day the Federal Register is research Federal agency regulations which directly affect them. published. The database includes both text and graphics from There will be no discussion of specific agency regulations. Volume 59, Number 1 (January 2, 1994) forward. Free public access is available on a Wide Area Information Server (WAIS) through the Internet and via asynchronous dial-in. Internet users WASHINGTON, DC can access the database by using the World Wide Web; the WHEN: November 18, 1997 at 9:00 am. Superintendent of Documents home page address is http:// www.access.gpo.gov/suldocs/, by using local WAIS client WHERE: Office of the Federal Register software, or by telnet to swais.access.gpo.gov, then login as guest, Conference Room (no password required). Dial-in users should use communications 800 North Capitol Street, NW software and modem to call (202) 512–1661; type swais, then login Washington, DC as guest (no password required). For general information about GPO Access, contact the GPO Access User Support Team by (3 blocks north of Union Station Metro) sending Internet e-mail to [email protected]; by faxing to (202) RESERVATIONS: 202–523–4538 512–1262; or by calling toll free 1–888–293–6498 or (202) 512– 1530 between 7 a.m. and 5 p.m. Eastern time, Monday–Friday, except for Federal holidays. The annual subscription price for the Federal Register paper edition is $555, or $607 for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $220. Six month subscriptions are available for one-half the annual rate. The charge for individual copies in paper form is $8.00 for each issue, or $8.00 for each group of pages as actually bound; or $1.50 for each issue in microfiche form. All prices include regular domestic postage and handling. International customers please add 25% for foreign handling. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA or MasterCard. Mail to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250–7954. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 60 FR 12345.

2 III

Contents Federal Register Vol. 62, No. 220

Friday, November 14, 1997

Agricultural Marketing Service Committee for Purchase From People Who Are Blind or RULES Severely Disabled Pears (winter) grown in Oregon et al., 60999–61002 NOTICES Perishable Agricultural Commodities Act; implementation: Procurement list; additions and deletions, 61080–61081 Electronic transmissions as ordinary and usual billing or invoice statements, 60998–60999 Consumer Product Safety Commission NOTICES NOTICES Agency information collection activities: Agency information collection activities: Proposed collection; comment request; correction, 61167 Submission for OMB review; comment request, 61094– 61095 Agriculture Department Settlement agreements: See Agricultural Marketing Service Ross Stores, Inc., 61095–61097 See Animal and Plant Health Inspection Service See Food Safety and Inspection Service Customs Service See Forest Service NOTICES Trade name recordation applications: Air Force Department IBBI, 61164–61165 NOTICES Commercial activities performance (OMB A-76); cost Defense Department comparison studies, 61097–61099 See Air Force Department RULES Animal and Plant Health Inspection Service Freedom of Information Act; implementation, 61013–61014 RULES PROPOSED RULES Exportation and importation of animals and animal Civilian health and medical program of uniformed services products: (CHAMPUS): Sliced and pre-packaged dry-cured pork products, 61002– TRICARE program; reimbursement, 61058–61065 61005 NOTICES Import and export user fees; exemption, 61005–61007 Meetings: PROPOSED RULES Defense Partnership Council, 61097 Exportation and importation of animals and animal products: Drug Enforcement Administration Rinderpest and foot-and-mouth disease, etc.; disease NOTICES status change— Applications, hearings, determinations, etc.: Belgium et al., 61036–61041 Hernandez, Martha, M.D., 61145–61148 NOTICES Novartis Pharmaceuticals Corp., 61148 Agency information collection activities: Proposed collection; comment request, 61079 Handling, training, and exhibition of potentially dangerous Education Department exotic or wild animals; information request, 61079– NOTICES 61080 Agency information collection activities: Proposed collection; comment request, 61099 Blind or Severely Disabled, Committee for Purchase From Grants and cooperative agreements; availability, etc.: People Who Are Bilingual education and minority languages affairs— See Committee for Purchase From People Who Are Blind or Limited English proficient students education program, Severely Disabled 61180–61202

Centers for Disease Control and Prevention Employment Standards Administration NOTICES NOTICES Meetings: Minimum wages for Federal and federally-assisted ICD-9-CM Coordination and Maintence Committee, 61129 construction; general wage determination decisions, National Immunization Program; adolescent 61148–61150 immunization, 61129 Energy Department Commerce Department See Federal Energy Regulatory Commission See Export Administration Bureau See Hearings and Appeals Office, Energy Department See International Trade Administration NOTICES See National Oceanic and Atmospheric Administration Environmental statements; availability, etc.: See Technology Administration Savannah River Site, SC— NOTICES Interim management of nuclear materials, 61099–61103 Agency information collection activities: Patent licenses; non-exclusive, exclusive, or partially Submission for OMB review; comment request, 61081– exclusive: 61082 Caliper Technologies, Inc., 61103 IV Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Contents

Environmental Protection Agency Federal Communications Commission RULES RULES Air quality implementation plans; approval and Television broadcasting: promulgation; various States: Cable Television Consumer Protection and Competition Virginia; correction, 61016 Act of 1992— Clean Air Act: Indecent programming on leased access and public, Special exemptions— educational, and governmental access channels; Virgin Islands, 61204–61205 cable operators policies, 61034 Hazardous waste program authorizations: Cable television systems— Inside wiring, 61016–61034 Michigan, 61175–61178 PROPOSED RULES Water pollution control: Television broadcasting: Clean Water Act— Cable television systems— Michigan Section 404 permitting program; Inside wiring, 61065–61070 modifications approved, 61173–61175 National pollutant discharge elimination system; State Federal Energy Regulatory Commission programs— NOTICES Michigan, 61170–61173 Applications, hearings, determinations, etc.: PROPOSED RULES Brooklyn Navy Yard Cogeneration Partners, L.P., 61103– Air pollution; standards of performance for new stationary 61104 sources: Delmarva Power & Light Co. et al., 61104 Municipal waste combustors; continuous emissions Electric Energy, Inc., 61104 monitoring systems, 61065 Kern River Gas Transmission Co., 61104 NOTICES MidAmerican Energy Co., 61104–61105 Environmental statements; availability, etc.: New York State Electric & Gas Corp., 61105 Agency statements— OGE Energy Resources, Inc., 61105 Comment availability, 61110–61111 Rochester Gas & Electric Corp., 61105–61106 Weekly receipts, 61111–61112 Tennessee Gas Pipeline Co., 61106 Grants and cooperative agreements; availability, etc.: Unitil Power Corp., 61106–61107 Investigator-initiated grants program, 61112 Viking Voyageur Gas Transmission Co., L.L.C., 61107– Meetings: 61108 Mississippi River/Gulf of Mexico Watershed Nutrient Williams Natural Gas Co., 61108 Task Force, 61112 Williston Basin Interstate Pipeline Co., 61108–61109 Superfund; response and remedial actions, proposed settlements, etc.: Federal Highway Administration Chemical Handling Corp. Site, CO, 61114–61116 NOTICES Lake (Petro) Station Truck Stop Site, IN, 61116 Environmental statements; notice of intent: Superfund program: Trumbull, Monroe, and Newtown, CT, 61162–61163 Ability to pay determinations; policy statement, 61112– 61113 Federal Labor Relations Authority EPA participation in bankruptcy proceedings; guidance RULES availability, 61113 Freedom of Information Act; implementation, 60997 Interim CERCLA settlement policy— PROPOSED RULES Penalty and punitive damages claims for Freedom of Information Act; implementation, 61035–61036 noncompliance with administrative orders, 61113– 61114 Federal Maritime Commission Potential compromises of cost recovery claims due to NOTICES existence of significant orphan share, 61113 Agreements filed, etc., 61125–61126 Water pollution; discharge of pollutants (NPDES): Texas et al.; petroleum UST systems cleanup; general Federal Railroad Administration permits, 61116–61125 NOTICES Safety advisories, bulletins, and directives: Hazards caused by severe weather conditions; protection Executive Office of the President of trains and personnel See Presidential Documents Flash flood warnings, 61163

Export Administration Bureau Federal Reserve System NOTICES NOTICES Agency information collection activities: Banks and bank holding companies: Proposed collection; comment request, 61082–61083 Change in bank control, 61126 Formations, acquisitions, and mergers, 61126 Nonbanking activities, 61127 Federal Aviation Administration Daylight overdrafts measurement; checks drawn on local RULES Federal Reserve banks, time credits modification; Airworthiness directives: policy statement, 61127–61128 Pratt & Whitney; correction, 61010–61011 Meetings; Sunshine Act, 61128 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Contents V

Fish and Wildlife Service Housing and Urban Development Department NOTICES NOTICES Endangered and threatened species permit applications, Agency information collection activities: 61139–61140 Proposed collection; comment request, 61134 Environmental statements; availability, etc.: Submission for OMB review; comment request, 61134– Incidental take permits— 61135 San Diego County, CA; 85 sensitive plant and animal Grants and cooperative agreements; availability, etc.: species, 61140–61141 Facilities to assist homeless— Excess and surplus Federal property, 61135–61139 Food and Drug Administration RULES Immigration and Naturalization Service Animal drugs, feeds, and related products: NOTICES Carbarsone and bacitracin zinc, 61011 Temporary protected status program designations: PROPOSED RULES Sierra Leone; correction, 61167 Human drugs: Labeling of drug products (OTC)— Indian Affairs Bureau Analgesic/antipyretic active ingredients for internal PROPOSED RULES use; required alcohol warning, 61041–61057 Law and order on Indian reservations: NOTICES Courts of Indian Offenses and law and order code Biological product licenses: Correction, 61057–61058 Iatric Corp., 61129–61130 NOTICES Medical devices; premarket approval: Liquor and tobacco sale or distribution ordinance: LithoTron Lithotripsy System, 61130–61131 Kaibab Band of Paiute Indians, AZ, 61141–61144 NeuroControl Freehand System, 61131–61132 Reservation establishment, additions, etc.: Meetings: Redwood Valley Rancheria of Pomo Indians of California, Psychopharmacologic Drugs Advisory Committee, 61132 61144 Interior Department Food Safety and Inspection Service See Fish and Wildlife Service RULES See Indian Affairs Bureau Meat and poultry inspection: See Land Management Bureau Federal Meat Inspection Act and Poultry Products Inspection Act; State designations— International Trade Administration Florida, 61009–61010 NOTICES Pathogen reduction; hazard analysis and critical control Antidumping: point (HACCP) systems— Furfuryl alcohol from— Generic E. coli testing of turkeys; sample collection, South Africa, 61084–61092 61007–61009 Applications, hearings, determinations, etc.: Worcester Polytechnic Institute et al., 61092 Forest Service NOTICES Justice Department Meetings: See Drug Enforcement Administration Deschutes Provincial Interagency Executive Committee See Immigration and Naturalization Service Advisory Committee, 61080 Labor Department General Accounting Office See Employment Standards Administration NOTICES Meetings: Land Management Bureau Government Auditing Standards Advisory Council, 61129 NOTICES Closure of public lands: Health and Human Services Department Oregon, 61144 See Centers for Disease Control and Prevention Survey plat filings: See Food and Drug Administration Idaho, 61144–61145 See Health Resources and Services Administration National Oceanic and Atmospheric Administration PROPOSED RULES Health Resources and Services Administration Marine mammals: NOTICES Incidental taking— Agency information collection activities: Vandenberg AFB, CA; missile and rocket launches, Submission for OMB review; comment request, 61132– aircraft flight test operations, and helicopter 61133 operations, 61077–61078 Grant and cooperative agreement awards: NOTICES American Public Health Association, 61133 Marine mammals: Incidental taking; authorization letters, etc.— Hearings and Appeals Office, Energy Department Vandenberg AFB, CA; Delta II, Titan II, Titan IV, and NOTICES Taurus launch vehicles, 61092–61093 Petroleum violation escrow funds; excess determinations, Permits: 61109–61110 Marine mammals, 61093–61094 VI Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Contents

National Railroad Passenger Corporation Securities and Exchange Commission PROPOSED RULES NOTICES Freedom of Information Act; implementation, 61070–61077 Self-regulatory organizations; proposed rule changes: American Stock Exchange, Inc.., 61154–61156 National Science Foundation Chicago Board Options Exchange, Inc., 61156–61157 NOTICES Chicago Stock Exchange, Inc., 61157–61158 Meetings: Government Securities Clearing Corp., 61158–61160 Advanced Scientific Computing Special Emphasis Panel, Pacific Exchange, Inc., 61160–61161 61150 Applications, hearings, determinations, etc.: Astronomical Sciences Special Emphasis Panel, 61150 Public utility holding company filings, 61154 Biological Sciences Special Emphasis Panel, 61150 Electrical and Communications Systems Division Special Emphasis Panel, 61150–61151 Social Security Administration Geosciences Special Emphasis Panel, 61151 NOTICES Human Resource Development Special Emphasis Panel, Agency information collection activities: 61151 Submission for OMB review; comment request, 61161 Mathematical and Physical Sciences Advisory Committee, 61151 State Department NOTICES Nuclear Regulatory Commission Meetings: NOTICES Shipping Coordinating Committee, 61161 Applications, hearings, determinations, etc.: Toledo Edison Co. et al., 61151–61152 Surface Transportation Board Occupational Safety and Health Review Commission NOTICES RULES Motor carriers: Practice and procedure: Control exemptions— E-Z Trial pilot program implementation and simplified Coach USA, Inc., 61164 proceedings for adjudicative process; CFR correction Correction, 61011–61012 Technology Administration Pension Benefit Guaranty Corporation NOTICES RULES Meetings: Single-employer plans: Federal Key Management Infrastructure Federal Allocation of assets— Information Processing Standard Development Interest assumptions for valuing benefits, 61012–61013 Technical Advisory Committee, 61094 NOTICES Multiemployer plans: Transportation Department Variable-rate premiums and interest assumptions for plan See Federal Aviation Administration valuations following mass withdrawal, 61152–61153 See Federal Highway Administration Postal Service See Federal Railroad Administration RULES See Research and Special Programs Administration Domestic Mail Manual: See Surface Transportation Board Nonprofit standard mail rate matter; eligibility NOTICES requirements, 61014–61015 Agency information collection activities: NOTICES Submission for OMB review; comment request, 61161– Meetings; Sunshine Act, 61153 61162

Presidential Documents Treasury Department ADMINISTRATIVE ORDERS See Customs Service State, Secretary of; authorization to redelegate certain responsibilities to (Memorandum of November 4, 1997), 60995 United States Information Agency NOTICES Public Health Service Grants and cooperative agreements; availability, etc.: See Centers for Disease Control and Prevention Armenia; elementary-level teacher education program, See Food and Drug Administration 61165–61166 See Health Resources and Services Administration Railroad Retirement Board NOTICES Separate Parts In This Issue Meetings; Sunshine Act, 61153–61154 Research and Special Programs Administration Part II NOTICES Environmental Protection Agency, 61170–61178 Meetings: International standards on transport of dangerous goods, Part III 61163–61164 Department of Education, 61180–61202 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Contents VII

Part IV Environmental Protection Agency, 61204–61205

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

Electronic Bulletin Board Free Electronic Bulletin Board service for Public Law numbers, Federal Register finding aids, and a list of documents on public inspection is available on 202–275– 1538 or 275–0920. VIII Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Contents

CFR PARTS AFFECTED IN THIS ISSUE

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

3 CFR Administrative Orders: Memorandums: November 4, 1997...... 60995 5 CFR 2411...... 60997 Proposed Rules: 2411...... 61035 7 CFR 46...... 60998 927...... 60999 9 CFR 94...... 61002 130...... 61005 310...... 61007 331...... 61009 381 (2 documents) ...... 61007, 61009 417...... 61007 Proposed Rules: 94...... 61036 14 CFR 39...... 61010 21 CFR 558...... 61011 Proposed Rules: 201...... 61041 25 CFR Proposed Rules: 11...... 61057 29 CFR 2200...... 61011 4044...... 61012 32 CFR 285...... 61013 Proposed Rules: 199...... 61058 39 CFR 111...... 61014 40 CFR 52...... 61016 69...... 61204 123...... 61170 233...... 61173 271...... 61175 Proposed Rules: 60...... 61065 63...... 61065 47 CFR 76 (2 documents) ...... 61016, 61034 Proposed Rules: 76...... 61065 49 CFR Proposed Rules: 701...... 61070 50 CFR Proposed Rules: 216...... 61077 60995

Federal Register Presidential Documents Vol. 62, No. 220

Friday, November 14, 1997

Title 3— Memorandum of November 4, 1997

The President Authorization To Redelegate Certain Responsibilities Vested in the President and Delegated to the Secretary of State

Memorandum for the Secretary of State

By the authority vested in me by the Constitution and laws of the United States, including section 301 of Title 3 of the United States Code, to the extent that you consider doing so appropriate to facilitate the consolidation of the Arms Control and Disarmament Agency and the Department of State, I hereby authorize you to redelegate to any officer of the executive branch any or all authorities vested in the President that are delegated to the Secretary of State by any act, order, determination, delegation of authority, regulation, or Executive order heretofore or hereinafter enacted or issued and that have been or may be redelegated to the Under Secretary of State for Arms Control and International Security Affairs. You are authorized and directed to publish this memorandum in the Federal Register. œ–

THE WHITE HOUSE, Washington, November 4, 1997. [FR Doc. 97–30160 Filed 11–13–97; 8:45 am] Billing code 4710–10–M 60997

Rules and Regulations Federal Register Vol. 62, No. 220

Friday, November 14, 1997

This section of the FEDERAL REGISTER regulations set forth below are neither § 2411.6 Time limits for processing contains regulatory documents having general interpretive nor controversial. For these requests. applicability and legal effect, most of which reasons, the FLRA finds good cause to * * * * * are keyed to and codified in the Code of determine that public notice of, and Federal Regulations, which is published under (b) Except as provided in § 2411.8, the 50 titles pursuant to 44 U.S.C. 1510. comments on, this amendment are appropriate Regional Director, the impracticable, unnecessary, and Freedom of Information Officer of the The Code of Federal Regulations is sold by contrary to the public interest. Office of the General Counsel, the the Superintendent of Documents. Prices of Therefore, pursuant to 5 U.S.C. 553(b), Solicitor of the Authority, or the new books are listed in the first FEDERAL this regulatory action is exempt from Executive Director of the Panel, as REGISTER issue of each week. notice and comment requirements. appropriate, shall, within twenty (20) Executive Order 12886 working days following receipt of the FEDERAL LABOR RELATIONS request, respond in writing to the AUTHORITY This final regulation has been requester, determining whether, or the reviewed in accordance with Executive extent to which, the request shall be 5 CFR Part 2411 Order 12886. It is not classified as complied with. significant because it does not meet the * * * * * Revision of Freedom of Information criteria for significant regulatory action 3. In § 2411.10, paragraph (g)(2) is Act Regulations established by the E.O. revised to read as follows: AGENCY: Federal Labor Relations Regulatory Flexibility Act Certification § 2411.10 Fees. Authority. Pursuant to section 605(b) of the * * * * * ACTION: Final rule. Regulatory Flexibility Act, 5 U.S.C. (g) * * * SUMMARY: The Federal Labor Relations 605(b), the FLRA has determined that (2) A requester has previously failed Authority, the General Counsel of the this proposed regulation will not have a to pay a fee charged in a timely fashion Federal Labor Relations Authority, and significant economic impact on a (i.e., within 30 days of the date of the the Federal Service Impasses Panel substantial number of small entities. billing), in which case the Authority, (FLRA) are amending their regulations The amendments are procedural in the General Counsel or the Panel governing the release of information as nature and are required to implement requires the requester to pay the full these regulations pertain to the timing of EFOIA. amount owed plus any applicable interest as provided above or FLRA responses to requests for Paperwork Reduction Act of 1995 information. This action is taken to demonstrate that the requester has, in conform the FLRA’s regulations to the The proposed regulations contain no fact, paid the fee, and to make an requirements of the Freedom of additional information collection or advance payment of the full amount of Information Act, 5 U.S.C. 552, et seq. record keeping requirement under the the estimated fee before the agency (FOIA), as amended by the Electronic Paperwork Reduction Act of 1995, 44 begins to process a new request or a Freedom of Information Act U.S.C. 3501, et seq.. pending request from that requester. Amendments of 1996 (EFOIA). When the Authority, the General List of Subjects in 5 CFR Part 2411 DATES: Effective November 14, 1997. Counsel or the Panel acts under paragraph (g)(1) or (2) of this section, FOR FURTHER INFORMATION CONTACT: Administrative practice and Peter Constantine, Office of Case procedure, Freedom of information, the administrative time limits Control, Federal Labor Relations Government employees. prescribed in subsection (a)(6) of the Authority, 607 14th Street, N.W., Room FOIA (i.e., 20 working days from receipt For the reasons stated in the 415, Washington, D.C. 20424–0001, or of initial requests and 20 working days preamble, the FLRA amends part 2411 by telephone at (202) 482–6540. from receipt of appeals from initial of chapter XIV, title 5 of the Code of denial, plus permissible extension of SUPPLEMENTARY INFORMATION: Through Federal Regulations as follows: these time limits) will begin only after the EFOIA, Pub. L. 104–231, 110 Stat. the Authority, the General Counsel or 3048 (1996) Congress amended the PART 2411ÐAVAILABILITY OF the Panel has received fee payments FOIA, 5 U.S.C. 552 et seq., to, among OFFICIAL INFORMATION described above. other things, increase the time limit for agency responses to requests for 1. The authority citation for part 2411 * * * * * information from ten (10) to twenty (20) continues to read as follows: Dated: November 7, 1997. Solly Thomas, working days. Accordingly, the FLRA is Authority: 5 U.S.C. 552. amending its regulations at 5 CFR Part Executive Director. 2411 to reflect this change. The 2. In § 2411.6, paragraph (b) is revised [FR Doc. 97–29915 Filed 11–13–97; 8:45 am] revisions to the FLRA’s FOIA to read as follows: BILLING CODE 6727±01±P 60998 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

DEPARTMENT OF AGRICULTURE USDA in order to preserve their trust regulations is very similar to the change rights under the statutory trust suggested in the UFFVA petition. The Agricultural Marketing Service provision of the Act. Additionally, the 30-day comment period on the proposed amendments to the PACA allow unpaid rule closed on July 21, 1997. 7 CFR Part 46 sellers of fresh and frozen fruits and Comments [Docket Number FV97±355] vegetables to preserve trust benefits by adding language to ‘‘ordinary and usual USDA received comments on the Revision to Part 46, Regulations Under billing or invoice statements’’ that proposed rule from the American the Perishable Agricultural advises the buyer of the creditor’s Frozen Food Institute (AFFI), McLean, Commodities Act (PACA) intention to preserve trust benefits. This Virginia; Western Growers Association, addition of language indicating the Newport Beach, California; Driscoll’s AGENCY: Agricultural Marketing Service, intent to preserve trust benefits to bills Strawberry Associates, Inc., USDA. or invoices eliminates the need for a Watsonville, California; and The Nunes ACTION: Final rule. trust creditor to provide any additional Company, Inc., Salinas, California. All of the commentors supported USDA’s SUMMARY: The Department of notice to the debtor of the creditor’s Agriculture (USDA) is revising the intention to preserve trust benefits. proposal to amend the regulations to establish that electronic transmissions regulations (other than Rules of However, the Act does not explicitly are ‘‘ordinary and usual billing or Practice) Under the Perishable declare that information transmitted in invoice statements’’ within the meaning Agricultural Commodities Act (PACA or the course of electronic transactions would constitute ‘‘ordinary and usual of the PACA. Act) to establish that electronic In its favorable comment, AFFI transmissions are ‘‘ordinary and usual billing or invoice statements’’. On January 15, 1997, the United Fresh suggested that in order to clarify and billing or invoice statements’’ within the strengthen the proposal, USDA should meaning of the PACA. Fruit and Vegetable Association (UFFVA), a produce industry trade confirm in the final rule that including EFFECTIVE DATE: December 15, 1997. association based in Alexandria, a statement on an electronic invoice or FOR FURTHER INFORMATION CONTACT: Virginia, petitioned AMS to adopt other billing document that the sale is Charles W. Parrott, Assistant Chief, regulations under the PACA to subject to the provisions of the PACA PACA Branch, Room 2095-So. Bldg., recognize the use of Electronic Data statutory trust will satisfy the notice Fruit and Vegetable Division, AMS, Interchange. Ten other produce industry requirements under the statute. AFFI is USDA, 1400 Independence Avenue, organizations joined the UFFVA on the concerned that the statement preserving S.W.,Washington, D.C. 20250, Phone petition. The petitioners sought trust benefits may not be recognized as (202) 720–4180. clarification as to whether EDI a standard data field on an electronic SUPPLEMENTARY INFORMATION: This transactions are considered by AMS to document, and therefore may not be regulation is issued under authority of be ‘‘ordinary and usual billing or received or read by the party to which section 15 of the PACA (7 U.S.C. 499o). invoice statements’’ within the meaning the information is being disclosed. However, as we stated in the preamble Background of the 1995 PACA amendments. USDA agreed with petitioners that a revision to to the proposed rule, both parties to an The PACA establishes a code of fair the regulations would eliminate any electronic transaction must agree to the trading practices covering the marketing uncertainty in this regard and would format of the information to be of fresh and frozen fruits and vegetables ensure that licensees can use reasonable transmitted and received in an in interstate and foreign commerce. It technological advances while still electronic transmission. USDA believes protects growers, shippers, distributors, receiving appropriate trust protection that this agreement is the proper forum and retailers dealing in those under the PACA. for ensuring that the buyer receives commodities by prohibiting unfair and Therefore, USDA proposed a change notice of trust preservation from the fraudulent trade practices. Thus, the law in the PACA regulations to achieve this seller in the electronic transmission. fosters an efficient nationwide end. The proposal was published in the The PACA requires that the seller give distribution system for fresh and frozen Federal Register on June 20, 1997 (62 notice to the buyer in order to preserve fruits and vegetables, benefitting the FR 33574). The proposal contained a its trust benefits. Therefore, a seller whole marketing chain from farmer to definition for the term ‘‘ordinary and engaged in electronic transactions must consumer. The PACA provides for a usual billing or invoice statements’’ to ensure in the agreement with its buyer forum to adjudicate commercial be added in section 46.46(a) as follows: that the buyer is receiving the trust disputes in which USDA may award statement as part of the electronic damages against a licensee who fails to ‘‘Ordinary and usual billing or invoice statements’’ as used in section 5(c)(4) of the transmission. Otherwise, the seller is meet contractual obligations in violation Act and ‘‘invoice or other billing statement’’ responsible for finding other means of of the Act. The law also imposes a as used in section 46.46(f)(3) mean giving notice to the buyer in order to statutory trust on perishable agricultural communications customarily used between qualify for PACA trust protection. commodities received but not yet paid parties to a transaction in perishable Under these circumstances, USDA is for, products derived from those agricultural commodities in whatever form, making no change to the final rule based documentary or electronic, for billing or commodities, and any receivables or on this comment. proceeds due from the sale of those invoicing purposes. commodities or products thereof for the The proposed definition specifies that Executive Orders 12866 and 12988 benefit of unpaid suppliers or sellers. ‘‘ordinary and usual billing or invoice This rule, issued under the Perishable USDA’s Agricultural Marketing Service statements’’ as used in the PACA and Agricultural Commodities Act (7 U.S.C. (AMS) administers and enforces the ‘‘invoice or other billing statement’’ as 499 et seq.), as amended, has been PACA. used in section 46.46(f)(3) include both determined to be not significant for the The PACA Amendments of 1995, paper documentation and electronic purposes of Executive Order 12866. among other things, eliminated the transmissions customarily used between This final rule has been reviewed requirement for unpaid produce a seller and a buyer for billing or under Executive Order 12988, Civil suppliers to file trust notices with invoicing purposes. This change to the Justice Reform. This rule is not intended Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 60999 to have retroactive effect. This final rule PART 46Ð[AMENDED] telephone: (202) 720–2491, or FAX (202) will not preempt any State or local laws, 720–5698; or Teresa Hutchinson, regulations, or policies, unless they 1. The authority citation for part 46 Marketing Specialist, Northwest present an irreconcilable conflict with continues to read as follows: Marketing Field Office, Marketing Order this rule. There are no administrative Authority: Sec. 15, 46 Stat. 537; 7 U.S.C. Administration Branch, Fruit and procedures which must be exhausted 499o Vegetable Division, AMS, USDA, 1220 prior to any judicial challenge to the 2. In § 46.46, a new paragraph (a)(5) S.W. Third Avenue, room 369, Portland, provisions of this rule. is added to read as follows: OR 97204–2807; telephone (509) 326– 2724 or FAX (509) 326–7440. Small Effects on Small Businesses § 46.46 Statutory trust. businesses may request information on Pursuant to requirements set forth in * * * * * compliance with this regulation by the Regulatory Flexibility Act (RFA) (5 (a) * * * contacting: Jay Guerber, Marketing U.S.C. 601 et seq.), USDA has (5) ‘‘Ordinary and usual billing or Order Administration Branch, Fruit and considered the economic impact of this invoice statements’’ as used in section Vegetable Division, AMS, USDA, P.O. final rule on small entities. The purpose 5(c)(4) of the Act, and ‘‘invoice or other Box 96456, room 2523–S, Washington, of the RFA is to fit regulatory actions to billing statement’’ as used in DC 20090–6456; telephone (202) 720– the scale of businesses subject to such § 46.46(f)(3), mean communications 2491; Fax (202) 720–5698. actions in order that small businesses customarily used between parties to a SUPPLEMENTARY INFORMATION: Prior will not be unduly or disproportionately transaction in perishable agricultural documents in this proceeding: Notice of burdened. Small agricultural service commodities in whatever form, Hearing issued on June 24, 1996, and firms have been defined by the Small documentary or electronic, for billing or published in the June 26, 1996, issue of Business Administration (13 CFR invoicing purposes. the Federal Register (61 FR 33047). 121.601) as those whose annual receipts Dated: November 7, 1997. Recommended Decision and are less than $5,000,000. The PACA Robert C. Keeney, Opportunity to File Written Exceptions requires all businesses that operate Deputy Administrator, Fruit and Vegetable issued on June 9, 1997, and published subject to its provisions maintain a Programs. in the Federal Register on June 16, 1997 license issued by USDA. There are [FR Doc. 97–29926 Filed 11–13–97; 8:45 am] (62 FR 32548). Secretary’s Decision and approximately 15,700 PACA licensees, Referendum Order issued July 22, 1997, BILLING CODE 3410±02±P many of which may be classified as and published in the Federal Register small entities. on July 28, 1997 (62 FR 40310). The revised regulations establish that DEPARTMENT OF AGRICULTURE Preliminary Statement the electronic transmissions used in perishable agricultural commodity Agricultural Marketing Service This administrative action is governed transactions are, in fact, ‘‘ordinary and by the provisions of sections 556 and usual billing or invoice statements.’’ 7 CFR Part 927 557 of Title 5 of the United States Code The use of electronic transactions is [Docket Nos. AO±99±A7; FV96±927±1] and, therefore, is excluded from the voluntary, and the revised regulations requirements of Executive Order 12866. specifically provide companies an Winter Pears Grown in Oregon, This final rule has been reviewed electronic alternative to paper Washington, and California; Order under Executive Order 12988, Civil documentation to give notice of intent Amending the Marketing Order Justice Reform. This rule is not intended to preserve trust rights. to have retroactive effect. This rule will AGENCY: Agricultural Marketing Service, not preempt any State or local laws, Accordingly, based on the USDA. regulations, or policies, unless they information in the above discussion, ACTION: Final rule. present an irreconcilable conflict with AMS has determined that the provisions this rule. of this rule would not have a significant SUMMARY: This final rule amends the The Act provides that administrative economic impact on a substantial marketing agreement and order (order) number of small entities. proceedings must be exhausted before for winter pears grown in Oregon, parties may file suit in court. Under Paperwork Reduction Act Washington, and California. The section 608c(15)(A) of the Act, any amendments remove the State of handler subject to an order may file In compliance with Office of California from the order and make with the Secretary a petition stating that Management and Budget (OMB) related changes to provisions the order, any provision of the order, or regulations (5 CFR part 1320) which concerning the production area, any obligation imposed in connection implement the Paperwork Reduction districts, and establishment and with the order is not in accordance with Act of 1995 (Pub. L. 104–13), the membership of the Committee. Another law and request a modification of the information collection and amendment allows the use of order or to be exempted therefrom. A recordkeeping requirements covered by telecopiers or other electronic means in handler is afforded the opportunity for this rule were approved by OMB on Committee voting procedures. The a hearing on the petition. After the October 31, 1996, and expires on amendments will improve the hearing the Secretary would rule on the October 31, 1999. administration, operation and petition. The Act provides that the functioning of the order. List of Subjects in 7 CFR Part 46 district court of the United States in any EFFECTIVE DATE: November 17, 1997. district in which the handler is an Agricultural commodities, Brokers, FOR FURTHER INFORMATION CONTACT: inhabitant, or has his or her principal Penalties, Reporting and record keeping Kathleen M. Finn, Marketing Specialist, place of business, has jurisdiction to requirements. Marketing Order Administration review the Secretary’s ruling on the For the reasons set forth in the Branch, Fruit and Vegetable Division, petition, provided an action is filed not preamble, 7 CFR part 46 is amended as AMS, USDA, room 2523–S, later than 20 days after date of the entry follows: Washington, D.C. 20250–0200; of the ruling. 61000 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

The final rule was formulated on the thirds of the producers voting in the production area. Production for the record of a public hearing held in referendum by number and volume. 1995–96 season showed that 15,316,776 Sacramento, California, on July 9, 1996, The amended marketing agreement standard boxes were produced in and in Portland, Oregon, on July 10, was subsequently mailed to all winter Oregon and Washington, while 1996, to consider the proposed pear handlers throughout the California produced 434,380 standard amendment of Marketing Order and production area for their approval. The boxes. Agreement No. 927, regulating the marketing agreement was signed by The removal of the State of California handling of winter pears grown in handlers of more than 50 percent of the will allow the Northwest winter pear Oregon, Washington, and California, volume of winter pears handled by all industry to operate more efficiently. hereinafter referred to as the ‘‘order.’’ handlers during the representative There are approximately 60 growers and Notice of the Hearing was published in period of July 1, 1996, through June 30, 19 handlers of winter pears in California the June 26, 1996, issue of the Federal 1997. who have asked to be removed from the Register (61 FR 33047). Also, this final rule includes an marketing order since the harvesting The hearing was held pursuant to the additional modification to the and marketing seasons for California provisions of the Agricultural Marketing regulatory text concerning the definition pears are different than those for pears Agreement Act of 1937, as amended (7 of ‘‘pears’’ to clarify that the definition grown in Oregon and Washington. U.S.C. 601 et seq.), hereinafter referred applies to winter pears that are grown Production for the 1995–96 season to as the ‘‘Act,’’ and the applicable rules in the production area. showed that 15,316,776 standard boxes were produced in Oregon and of practice and procedure governing Small Business Considerations proceedings to formulate marketing Washington, while California produced Pursuant to requirements set forth in agreements and marketing orders (7 CFR 434,380 standard boxes. Revenue the Regulatory Flexibility Act (RFA), the Part 900). The Notice of Hearing generated from assessments collected in Agricultural Marketing Service (AMS) contained proposals submitted by the 1995–96 would be $175,923 from has considered the economic impact of Winter Pear Control Committee California compared to $6,203,295 from this action on small entities. (Committee), which locally administers Oregon and Washington. Accordingly, AMS has prepared this the order. Record evidence indicated that during final regulatory flexibility analysis. the 1994–95 crop year winter pears were The Committee’s proposals pertained The purpose of the RFA is to fit assessed at $.43 per standard box. to: (1) revising the definition of regulatory actions to the scale of According to preliminary figures in the ‘‘production area’’ to mean only the business subject to such actions in order record, returns to handlers per standard States of Oregon and Washington; (2) that small businesses will not be unduly box for that year were $8.31. The revising ‘‘district’’ by removing or disproportionately burdened. assessment rate is about 5 percent of the California, leaving only those districts Marketing orders issued pursuant to the preliminary returns. designated in the States of Oregon and Act, and rules issued thereunder, are California growers believed they were Washington; (3) revising ‘‘establishment unique in that they are brought about funding promotion programs that are in and membership’’ of the Committee to through group action of essentially direct competition with their own be consistent with the reduction in size small entities acting on their own product. Record evidence showed that of the regulated production area; (4) behalf. Thus, both statutes have small there will not be any additional burden revising ‘‘procedure of Control entity orientation and compatibility. imposed on handlers with the Committee’’, ‘‘(a) quorum and voting’’, There are approximately 1800 winter implementation of these amendments. so that the number of members needed pear producers in Oregon, Washington, In fact, handlers in the State of for a quorum is consistent with the and California and approximately 100 California will be relieved of any revised Committee representation, and handlers of winter pears who are subject regulatory burden. Those in Oregon and amending ‘‘(b) mail voting’’, to allow for to regulation under the marketing order. Washington will continue to benefit the use of telecopiers and other Small agricultural producers have been from operation of the program. There electronic means; and (5) revising the defined by the Small Business are currently 1,700 winter pear growers definition of ‘‘pears’’ to exclude pears Administration (SBA) (13 CFR 121.601) and 93 winter pear handlers in Oregon produced in California. as those having annual receipts of less and Washington producing over 15 Upon the basis of evidence than $500,000. Small agricultural million standard boxes of pears introduced at the hearing and the record service firms, which include handlers annually. In California, there are thereof, the Administrator of the regulated under the order, are defined as approximately 60 winter pear growers Agricultural Marketing Service (AMS) those with annual receipts of less than and 19 handlers of winter pears on June 9, 1997, filed with the Hearing $5,000,000. producing over 400,000 standard boxes Clerk, U.S. Department of Agriculture, a Interested persons were invited to of pears annually. Recommended Decision and present evidence at the hearing on the Record evidence also showed that the Opportunity to File Written Exceptions probable regulatory and informational collection of information under the thereto by June 26, 1997. No exceptions impact of the proposed amendments on marketing order will not be effected by were received. small businesses. The record indicates removing California from the marketing A Secretary’s Decision and that handlers will not be unduly order. A witness testified that there are Referendum Order was issued on July burdened by any additional regulatory alternatives that will replace the current 22, 1997, directing that a referendum be requirements, including those information that is being collected from conducted during the period August 8 pertaining to reporting and the State of California, if it is needed. through August 29, 1997, among recordkeeping, that might result from Accordingly, this action will not impose producers of winter pears in Oregon, this proceeding. any additional reporting or Washington, and California to During the 1995–96 crop year, recordkeeping requirements on either determine whether they favored the approximately 100 handlers were small or large pear handlers. As with all proposed amendments to the order. All regulated under Marketing Order No. Federal marketing order programs, of the proposed amendments were 927. In addition, there were about 1,800 reports and forms are periodically favored by more than the requisite two- producers of winter pears in the reviewed to reduce information Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61001 requirements and duplication by to effectuate the declared policy of the (c) Determinations. It is hereby industry and public sector agencies. Act; determined that: The Department has not identified (2) The order, as amended, and as (1) Handlers (excluding cooperative any relevant Federal rules that hereby further amended, regulates the associations of producers who are not duplicate, overlap or conflict with this handling of winter pears grown in the engaged in processing, distributing, or final rule. production area in the same manner as, shipping winter pears covered by the The amendment allowing Committee and is applicable only to persons in the said order, as amended, and as hereby members to vote by telecopiers or other respective classes of commercial and further amended) who, during the electronic means provides members industrial activity specified in the period July 1, 1996, through June 30, marketing order upon which hearings with the option to use these methods if 1997, handled 50 percent or more of the were held; available when voting on an action is to volume of such winter pears covered by (3) The order, as amended, and as be done quickly. This allows Committee said order, as amended, and as hereby hereby further amended, is limited in members to vote without assembling at further amended, have signed an application to the smallest regional a meeting place and, therefore, reduce amended marketing agreement; administrative costs and act quickly on production area which is practicable, consistent with carrying out the (2) The issuance of this amendatory a recommendation that needs the declared policy of the Act, and the order, further amending the aforesaid Committee’s attention. ‘‘Other electronic issuance of several orders applicable to order, is favored or approved by at least means’’ includes the use of modems, subdivisions of the production area two-thirds of the producers who video and teleconferencing. The term is would not effectively carry out the participated in a referendum on the flexible to allow for the use of new declared policy of the Act; and question of approval and who, during technologies by the Committee for (4) The order, as amended, as hereby the period July 1, 1996, through June 30, voting. proposed to be further amended, 1997 (which has been deemed to be a The additional amendments are prescribes, insofar as practicable, such representative period), have been changes that need to be made to the different terms applicable to different engaged within the production area in marketing order to reflect the removal of parts of the production area as are the production of such winter pears for the State of California. necessary to give due recognition to the fresh market. All of these amendments are designed differences in the production and (3) The signed marketing agreement to enhance the administration and marketing of winter pears grown in the and the issuance of this amendatory functioning of the marketing agreement production area; and order are the only practical means and order to the benefit of the industry. (5) All handling of winter pears grown pursuant to the declared policy of the Order Further Amending the Order in the production area is in the current Act of advancing the interests of Regulating the Handling of Winter of interstate or foreign commerce or producers of winter pears in the Pears Grown in Oregon, Washington, directly burdens, obstructs, or affects production area. and California such commerce. (b) Additional findings. It is necessary Order Relative to Handling Findings and Determinations and in the public interest to make these order amendments effective one day It is therefore ordered, That on and The findings and determinations after publication. after the effective date hereof, all hereinafter set forth are supplementary This final order changes the handling of winter pears grown in and in addition to the findings and production area by removing the State Oregon and Washington, shall be in determinations previously made in of California from order provisions. conformity to, and in compliance with, connection with the issuance of the Upon the effective date of this order, the terms and conditions of the said order; and all of said previous findings effected parties will need to be informed order as hereby further amended as and determinations are hereby ratified of these provisions. In addition, the follows: and affirmed, except insofar as such committee needs to make budgetary and findings and determinations may be in The provisions of the proposed other administrative decisions marketing order amendments further conflict with the findings and implementing the new provisions. The determinations set forth herein. amending the order contained in the 1997–98 fiscal period began on July 1, Recommended Decision issued by the (a) Findings and Determinations Upon 1997, and these provisions need to be in Administrator on June 9, 1997, and the Basis of the Hearing Record. place as soon as possible as handlers are published in the Federal Register on Pursuant to the provisions of the already shipping winter pears. A later June 16, 1997 (62 FR 32548), and in the Agricultural Marketing Agreement Act effective date would unnecessarily Secretary’s Decision issued on July 22, of 1937, as amended (7 U.S.C. 601 et delay the implementation of the order 1997, and published in the Federal seq.), and applicable rules of practice amendments and the improvement in Register on July 28, 1997 (62 FR 40310), and procedure effective thereunder (7 operation of the marketing order and as modified in this final rule, shall CFR part 900), public hearings were program. be and are the terms and provisions of held upon the amendments to In view of the foregoing, it is hereby this order further amending the order, Marketing Order No. 927 (7 CFR part found and determined that good cause and are set forth in full herein. 927), regulating the handling of winter exists for making these order pears grown in Oregon, Washington, amendments effective one day after List of Subjects in 7 CFR Part 927 and California. publication, and that it would be Marketing agreements, Pears, Upon the basis of the evidence contrary to the public interest to delay introduced at such hearings and the Reporting and recordkeeping the effective date of these order requirements. record thereof, it is found that: amendments for 30 days after (1) The order, as amended, and as publication in the Federal Register (Sec. For the reasons set forth in the hereby further amended, and all of the 553(d), Administrative Procedure Act; 5 preamble, 7 CFR Part 927 is amended as terms and conditions thereof, will tend U.S.C. 551–559). follows: 61002 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

PART 927ÐWINTER PEARS GROWN DEPARTMENT OF AGRICULTURE importation of sliced and packaged dry- IN OREGON, WASHINGTON, AND cured hams, pork shoulders, and pork CALIFORNIA Animal and Plant Health Inspection loins because of the difficulty in Service verifying the origin of the meat and how 1. The authority citation for 7 CFR it has been processed. Without this 9 CFR Part 94 part 927 continues to read as follows: information, we cannot easily determine [Docket No. 96±066±2] whether the meat has been treated and Authority: 7 U.S.C. 601–674. otherwise handled in a manner that 2. The part heading is revised to read Importation of Sliced and Pre- ensures it is free of disease agents. as follows: Packaged Dry-Cured Pork Products On April 14, 1997, we published in the Federal Register (62 FR 18055– AGENCY: Animal and Plant Health PART 927ÐWINTER PEARS GROWN 18059, Docket No. 96–066–1) a proposal Inspection Service, USDA. IN OREGON AND WASHINGTON to allow presliced and prepackaged dry- ACTION: Final rule. cured pork to be imported into the 3. Section 927.4 is revised to read as United States under certain conditions SUMMARY: We are amending our 1 follows: from countries where foot-and-mouth regulations to allow dry-cured pork disease, rinderpest, swine vesicular § 927.4 Pears. products that have been sliced and disease, African swine fever, and hog packaged prior to shipment to the cholera exist. The proposed conditions Pears means and includes any and all United States to be imported into the were designed to ensure that the origin of the Beurre D’Anjou, Beurre Bosc, United States under specified of the pork and the method of Winter Nelis, Doyenne du Comice, conditions. This action will relieve processing could be verified. Forelle, and Seckel varieties of pears, some restrictions on the importation of We solicited comments concerning and any other winter pear varieties or pork into the United States without our proposal for 60 days ending June 13, subvarieties that are grown in the presenting a significant risk of 1997. We received 13 comments by that production area and are recognized by introducing any serious communicable date. They were from importers, foreign the Control Committee and approved by diseases of animals. governments and meat processors, and the Secretary. EFFECTIVE DATE: December 15, 1997. one veterinarian. The comments were 4. Section 927.10 is revised to read as FOR FURTHER INFORMATION CONTACT: Dr. primarily positive. Several comments follows: Julia Sturm, Supervisory Staff Officer, suggested changes in the proposed Products Program, National Center for regulations. These suggestions are § 927.10 Production area. Import and Export, VS, APHIS, Suite discussed individually below. Production area means and includes 3B66, 4700 River Road Unit 40, Separation of Facilities Riverdale, MD 20737–1231, (301) 734– the States of Oregon and Washington. In our proposed rule, we required that 3277; or E-mail: [email protected]. the slicing/packaging facility itself § 927.11 [Amended] SUPPLEMENTARY INFORMATION: would have to be in a separate building, 5. In § 927.11, paragraph (e) is Background physically detached from any area removed. where pork or pork products are The regulations in 9 CFR part 94 handled for other purposes. This § 927.20 [Amended] (referred to below as the regulations) requirement was designed to prevent govern the importation into the United 6. Section 927.20 is amended by any possible contamination of the meat. States of specified animals and animal removing the number ‘‘14’’ in the first Several commenters objected to this products to prevent the introduction of requirement as unnecessarily restrictive. sentence and adding in its place the various animal diseases, including Commenters made various suggestions number ‘‘12’’, and removing the word rinderpest, foot-and-mouth disease, as to how we could minimize ‘‘seven’’ each time it appears in the bovine spongiform encephalopathy, hog contamination without requiring a third sentence and adding in its place cholera, African swine fever, and swine separate building for the slicing/ the word ‘‘six’’. vesicular disease, into the United States. packaging facility. Among the § 927.33 [Amended] These are dangerous and destructive suggestions were: require workers communicable diseases of ruminants moving from the pork processing facility 7. In § 927.33, paragraph (a) is and swine. to the slicing/packaging facility to amended by removing the word ‘‘ten’’ in Under the regulations, certain animal change into either freshly laundered or the first sentence and adding in its place products—whole hams, pork shoulders, disposable clothing, including caps, the word ‘‘nine’’; and adding the words and pork loins—from regions where masks, gloves and footwear; require a ‘‘telecopier or other electronic means,’’ foot-and-mouth disease, rinderpest, ‘‘changing/scrub’’ room for employees; and a comma after the word ‘‘mail’’ in African swine fever, hog cholera, or and require ‘‘walls, doors, passageways, paragraph (b) first sentence. swine vesicular disease exists may be etc.’’ imported into the United States only After carefully considering these Dated: November 7, 1997. under certain conditions. To be eligible comments, we have determined that our Thomas A. O’Brien, for importation, these products must proposed requirement that the slicing/ Acting Administrator, Agricultural Marketing have been dry-cured and otherwise packaging facility be in a separate Service. handled in accordance with procedures building is overly restrictive. Having the [FR Doc. 97–29927 Filed 11–13–97; 8:45 am] specified in § 94.17 of the regulations. BILLING CODE 3410±02±P However, the regulations have not 1 Since the proposed rule was published, we have allowed these same products to be amended our regulations for importing animals and animal products to refer to regions, rather than eligible for importation if they have countries. See the paragraph headed been sliced and packaged prior to ‘‘Miscellaneous,’’ elsewhere in this Supplementary shipment. We have prohibited the Information section. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61003 slicing/packaging facility in a separate records on the source and identity of all rule, scheduled to be effective on building would achieve our goal of dry-cured pork they handle (see November 28, 1997, we amended 9 CFR separating the facilities so that disease § 94.17(p)(1)(iv)). Access to these part 94 to remove the words ‘‘country’’ agents cannot be transmitted from areas records must be restricted to officials of and ‘‘countries’’ and replace them, in the facility where pork is cured and the national government of the region of respectively, with the words ‘‘region’’ dried to the slicing/packaging facility. origin, representatives of the United and ‘‘regions’’. To reflect these However, it may not be practical in all States Government, and persons intervening changes, we have therefore situations, and we believe the desired maintaining the records (see adjusted the language in this rule. goal can be accomplished by other § 94.17(p)(1)(v)). In addition, APHIS Executive Order 12866 and Regulatory means. Therefore, our final rule representatives, or individuals Flexibility Act (§ 94.17(p)(1)(ii)) will state that the authorized by APHIS, will make slicing/packaging facility may either be unannounced visits to inspect the This rule has been reviewed under in a separate, physically detached facility and the required records (see Executive Order 12866. The rule has building, or in a separate room within § 94.17(p)(1)(viii)). been determined to be not significant for the same building where the pork is Since April 1987, similar the purposes of Executive Order 12866 cured and dried if the slicing and recordkeeping and inspection and, therefore, has not been reviewed by packing room has no direct access to requirements have been in effect for the Office of Management and Budget. areas in the facility where pork is cured facilities that cure and dry whole pork In accordance with 5 U.S.C. 603, we and dried and if the room can be closed products. These products have been have performed a Final Regulatory off from the rest of the facility so imported into the United States since Flexibility Act Analysis, set forth below, unauthorized individuals cannot enter. 1988 without problems. regarding the economic impact of this We are not making any changes based We realize that the effectiveness of rule on small entities. on the commenters’ suggestions our regulations is dependent to some This final rule will amend the regarding showering and clothing for extent on the honesty and reliability of regulations regarding importation of workers. Our proposed rule included a others. However, this is also true in dry-cured pork products from regions requirement (see § 94.17(p)(1)(ix)) that reverse: foreign governments rely on where certain diseases of concern exist, workers in the slicing/packaging records maintained by U.S. producers by providing that certain sliced and facilities who handle dry-cured hams, and processors, and on certificates packaged products may be imported pork shoulders, and pork loins either issued by APHIS. In a system of mutual into the United States under specified shower and put on a full set of clean reliance, we believe the possibility of conditions. clothes, or wait 24 hours after handling violations is minimized. We have used all available data to other pork or pork products before Under these circumstances, we estimate the potential economic effects handling dry-cured pork hams, pork believe our regulations are adequate to of allowing these sliced and pre- shoulders, or pork loins in the facility protect the health of livestock in the packaged dry-cured pork products to be that are intended for importation into United States. imported into the United States. the United States. We believe the However, some of the data we believe commenters’ suggestions are already Lot Numbers would be helpful in making this covered by this requirement. One commenter suggested that we determination has not been available. require lot numbers to be placed on Specifically, data on: (1) The quantity of Safeguards packages of sliced pork. specialty dry-cured hams produced One commenter objected that our When drafting the proposed rule, we domestically; (2) the quantity of proposed rule would eliminate ‘‘critical considered requiring the lot number of potential imports; and (3) the degree to safeguard and identification points.’’ the meat to appear on the label, or which imported presliced and The commenter pointed out that no requiring that meat from only one lot be prepackaged dry-cured pork products individual identification would remain in a package. However, as we explained will displace existing imported or on the pork after slicing and packaging, in our proposed rule, current industry domestic products, is not available. In and that the Animal and Plant Health practice is to label packages with the lot our proposed rule, we invited Inspection Service (APHIS) would have number. Current industry practice is comments. However, none of the to rely on ‘‘paper certification’’ and also to package only meat from one lot comments we received addressed these records compiled by facilities that in a package. Under these economic issues. process, slice, and package dry-cured circumstances, it appears unnecessary The pork products covered by the rule pork products. to include either requirement in our are specialty products, such as Parma As discussed in our proposal, we regulations. However, if industry hams from Italy. These products are believe that the combination of practices change, and we believe it is similar to other dry-cured pork products inspection and recordkeeping necessary to require lot numbers or to consumed in the United States, some requirements included in this require that only meat from one lot be imported from other countries and some rulemakng will allow verification of the in a package, we will publish a proposal produced domestically. Currently, only meat’s origin, treatment, and handling. in the Federal Register for public whole dry-cured pork hams, pork Therefore, we have made no changes in comment. shoulders, and pork loins are being response to this comment. Our rule imported into the United States. Slightly provides for periodic inspections of Miscellaneous less than 3 million pounds of such slicing/packaging facilities (see On October 28, 1997, we published in whole products were imported in 1995, proposed § 94.17(p)(1)). These include the Federal Register (62 FR 56000— the most recent year for which figures inspections by both APHIS personnel 56026, Docket No. 94–106–9) a final are available. Presliced and prepackaged and personnel from the Food Safety rule establishing procedures for dry-cured pork products are not being Inspection Service (FSIS) of the U.S. recognizing regions, rather than only imported into the United States at this Department of Agriculture. In addition, countries, for the purpose of time. our rule requires slicing/packaging importation of animals and animal We estimate that fewer than 15 facilities to maintain specific, detailed products into the United States. In that domestic companies produce dry-cured 61004 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations pork products similar to those covered PART 94ÐRINDERPEST, FOOT-AND- United States if it meets the following by this final rule as a primary or major MOUTH DISEASE, FOWL PEST (FOWL conditions: product line. At least two of these PLAGUE), EXOTIC NEWCASTLE * * * * * companies are very large, and these DISEASE, AFRICAN SWINE FEVER, (p) Whole hams, pork shoulders, and types of products constitute only a small HOG CHOLERA, AND BOVINE pork loins that have been dry-cured in fraction of their overall business. Of the SPONGIFORM ENCEPHALOPATHY: accordance with paragraph (i) of this others, four are subsidiaries of Italian or PROHIBITED AND RESTRICTED section may be transported to a facility Swiss companies. IMPORTATIONS in the same region for slicing and packaging in accordance with this There are also a number of other 1. The authority citation for part 94 paragraph. producers of cured and smoked hams continues to read as follows: (1) The slicing/packaging facility. (i) who may produce similar products. If Authority: 7 U.S.C. 147a, 150ee, 161, 162, The slicing/packaging facility 2 must be they do, this final rule could affect and 450; 19 U.S.C. 1306; 21 U.S.C. 111, 114a, inspected, prior to slicing and packaging them. In addition, there are 134a, 134b, 134c, 134f, 136, and 136a; 31 any hams, pork shoulders, or pork loins approximately 10 domestic U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR in accordance with this paragraph, by establishments that buy cured hams and 2.22, 2.80, and 371.2(d). an APHIS representative and trim and dress them for resale. Some of § 94.17 [Amended] determined by the Administrator to be the resulting products might be similar capable of meeting the provisions of this to the presliced and prepackaged 2. Section 94.17 is amended as paragraph. products covered by this rule. If so, follows: (ii) The slicing/packaging facility these businesses could also be affected a. By revising the introductory text to must be either in a separate, physically by this final rule. read as set forth below. detached building, or in a separate room b. In paragraph (d), by adding the in the facility where the whole ham, This rule contains various word ‘‘whole’’ immediately before the pork shoulder, or pork loin was dry- recordkeeping requirements, which word ‘‘ham,’’. cured in accordance with paragraph (i) were described in our proposed rule, c. In paragraph (e), by adding the of this section. If the slicing/packaging and which have been approved by the word ‘‘whole’’ immediately after the facility is in a separate room, the room Office of Management and Budget. words ‘‘was processed’’; and in footnote must have no direct access to areas in Executive Order 12988 14, by removing the words ‘‘9 CFR part the facility where pork is cured and 301, et seq.’’ and adding the words ‘‘9 dried and it must be capable of being This rule has been reviewed under CFR, chapter III’’ in their place. closed off from the rest of the facility so Executive Order 12988, Civil Justice d. In paragraph (f), by adding the unauthorized individuals cannot enter. Reform. This rule: (1) Preempts all State word ‘‘whole’’ immediately after the (iii) The slicing/packaging facility, and local laws and regulations that are words ‘‘was processed’’. including all equipment used to handle inconsistent with this rule; (2) has no e. In paragraph (g), by adding the pork and pork products, such as retroactive effect; and (3) does not word ‘‘whole’’ immediately after the containers, work surfaces, slicing machines, and packaging equipment, require administrative proceedings words ‘‘was processed’’, and by must be cleaned and disinfected after before parties may file suit in court removing the words ‘‘within 12 sliced and packaged pork products that challenging this rule. months’’. are not eligible for export to the United f. In the introductory text of paragraph States leave the facility, and before Paperwork Reduction Act (h), and in the introductory text of whole dry-cured hams, pork shoulders, paragraph (i), by adding the word In accordance with the Paperwork or pork intended for importation into ‘‘whole’’ immediately after the words Reduction Act of 1995 (44 U.S.C. 3501 the United States enter the facility for ‘‘was processed’’. et seq.), the information collection or slicing and packaging. Cleaning and recordkeeping requirements included in g. In paragraphs (j)(1), (j)(2), (j)(3), (k), disinfecting must be adequate to ensure this final rule have been approved by (l), and (n), by adding the word ‘‘whole’’ that disease agents of concern are killed the Office of Management and Budget immediately after the first word ‘‘The’’ or inactivated and that pork products (OMB) under OMB control number in each paragraph. intended for importation into the United 0579–0015. h. In paragraph (j)(2), by adding the States are not contaminated. word ‘‘whole’’ immediately before the (iv) The slicing/packaging facility Regulatory Reform words ‘‘dry-cured pork shoulder’’. must maintain under lock and key for a i. In paragraph (n), by removing the minimum of 2 years, original records on This action is part of the President’s words ‘‘trust fund agreement’’ and each lot of whole dry-cured hams, pork Regulatory Reform Initiative, which, adding the words ‘‘cooperative service shoulders, and pork loins entering the among other things, directs agencies to agreement’’ in its place each time it facility for slicing and packaging under remove obsolete and unnecessary appears. this section, including: regulations and to find less burdensome j. By adding a new paragraph (p) to (A) The approval number of the ways to achieve regulatory goals. read as set forth below. facility where the whole ham, shoulder, List of Subjects in 9 CFR Part 94 or loin was dry-cured in accordance § 94.17 Dry-cured pork products from with paragraph (i) of this section; regions where foot-and-mouth disease, Animal diseases, Imports, Livestock, (B) The date the whole ham, shoulder, rinderpest, African swine fever, hog or loin started dry-curing; Meat and meat products, Milk, Poultry cholera, or swine vesicular disease exists. and poultry products, Reporting and (C) The date the whole ham, shoulder, Notwithstanding any other provisions recordkeeping requirements. or loin completed dry-curing; in this part, dry-cured ham, pork (D) The date the whole ham, shoulder, Accordingly, 9 CFR part 94 is shoulder, or pork loin, whether whole or loin was sliced and packaged; and amended as follows: or sliced and packaged, shall not be prohibited from being imported into the 2 See footnote 14 in § 94.17(e). Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61005

(E) A copy of all certifications of origin recognizes a local consortium certain user fees apply, and eliminate an required under paragraph (p) of this as responsible for product quality, a unnecessary user fee. section. representative of that local consortium, DATES: Interim rule effective November (v) Access to records required to be must certify in English that he or she 7, 1997. Consideration will be given maintained under paragraph (p) of this personally supervised the entire process only to comments received on or before section must be restricted to officials of of slicing and packaging each lot of dry- January 13, 1998. the national government of the region of cured hams, pork shoulders, and pork ADDRESSES: Please send an original and origin, representatives of the United loins at the slicing/packaging facility; three copies of your comments to States Government, and persons that each lot of dry-cured hams, pork Docket No. 96–089–1, Regulatory maintaining the records. shoulders, and pork loins was sliced Analysis and Development, PPD, (vi) The operator of the slicing/ and packaged in accordance with the APHIS, suite 3C03, 4700 River Road packaging facility must have signed a requirements of this paragraph; and that Unit 118, Riverdale, MD 20737–1238. cooperative service agreement with the sliced and packaged pork ham, Please state that your comments refer to APHIS prior to receipt of the whole dry- shoulder, or loin is the same dry-cured Docket No. 96–089–1. Comments cured hams, pork shoulders, or pork ham, pork shoulder, or pork loin received may be inspected at USDA, loins for slicing and packaging, stating certified under paragraph (p)(2)(i). room 1141, South Building, 14th Street that all hams, pork shoulders, or pork (iii) The sliced and packaged dry- and Independence Avenue SW., loins sliced and packaged at the facility cured pork ham, pork shoulder, or pork Washington, DC, between 8 a.m. and for importation into the United States loin must be labeled with the date that 4:30 p.m., Monday through Friday, will be sliced and packaged only in processing of the meat under paragraph except holidays. Persons wishing to accordance with this section. (i) of this section began, and with the inspect comments are requested to call (vii) The operator of the slicing/ date the meat was sliced and packaged. packaging facility must be current, in ahead on (202) 690–2817 to facilitate accordance with the terms of the (Approved by the Office of Management and entry into the comment reading room. cooperative service agreement signed Budget under control number 0579–0015) FOR FURTHER INFORMATION CONTACT: Ms. with APHIS, in paying all costs for an Done in Washington, DC, this 7th day of Donna Ford, Section Head, Financial APHIS representative to inspect the November 1997. Systems and Services Branch, Budget establishment, including travel, salary, Charles Schwalbe, and Accounting Division, M&B, APHIS, subsistence, administrative overhead, Acting Administrator, Animal and Plant 4700 River Road Unit 54, Riverdale, MD and other incidental expenses. Health Inspection Service. 20737–1232, (301) 734–8351. (viii) The slicing/packaging facility [FR Doc. 97–29989 Filed 11–13–97; 8:45 am] SUPPLEMENTARY INFORMATION: must allow the unannounced entry into BILLING CODE 3410±34±P the establishment of APHIS Background representatives, or other persons User fees to reimburse the Animal and authorized by the Administrator, for the DEPARTMENT OF AGRICULTURE Plant Health Inspection Service (APHIS) purpose of inspecting the establishment for the costs of providing veterinary and records of the establishment. Animal and Plant Health Inspection diagnostic services, and import-related (ix) Workers at the slicing/packaging Service and export-related services for live facility who handle pork or pork 9 CFR Part 130 animals and birds and animal products products in the facility must shower and are contained in 9 CFR part 130. put on a full set of clean clothes, or wait [Docket No. 96±089±1] Sections 130.14 through 130.18 list the 24 hours after handling pork or pork various veterinary diagnostic services products that are not eligible for Import/Export User Fees; Exemptions for which user fees are charged and the importation into the United States, associated user fees. before handling dry-cured hams, pork AGENCY: Animal and Plant Health We are proposing to amend 9 CFR shoulders, or pork loins in the slicing/ Inspection Service, USDA. part 130 (the regulations) to provide that packaging facility that are intended for ACTION: Interim rule and request for user fees will not be charged for importation into the United States. comments. veterinary diagnostic services listed in (x) Pork products intended for §§ 130.14 through 130.18 in the importation into the United States may SUMMARY: We are amending the user fee following cases: (1) When veterinary not be in the slicing/packaging facility regulations to provide that user fees are diagnostic services are provided in at the same time as pork products not not charged for veterinary diagnostic connection with Federal programs to intended for exportation to the United services in the following cases: When control or eradicate diseases or pests of States. veterinary diagnostic services are animals in the United States (program (2) Slicing and packaging and provided in connection with Federal diseases) or in support of zoonotic labeling procedures. (i) A full-time programs to control or eradicate disease surveillance when there is a salaried veterinarian employed by the diseases or pests of livestock or poultry significant risk to human health; and (2) national government of the region of in the United States (program diseases) when veterinary diagnostic reagents are origin must inspect each lot of whole or in support of zoonotic disease distributed within the United States for dry-cured hams, pork shoulders, and surveillance when there is a significant testing for foreign animal diseases. In pork loins at the slicing/packaging risk to human health; and when addition, we are eliminating the user fee facility, before slicing is begun, and veterinary diagnostic reagents are listed in § 130.20(d) for export health must certify in English that it is eligible distributed within the United States for certificates that are requested and for importation into the United States in testing for foreign animal diseases. In reviewed, but not endorsed. accordance with this section; and addition, we are eliminating the user fee (ii) Either a full-time salaried for export health certificates that are Veterinary Diagnostic Services veterinarian employed by the national requested and reviewed, but not Veterinary diagnostics is the work government of the region of origin, or, endorsed. We are making these changes performed in a laboratory to determine if the national government of the region to eliminate confusion, clarify when if a disease-causing organism or 61006 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations chemical agent is present in body knowledge of the prevalence of the returned by the APHIS veterinarian for tissues or cells and to identify those disease in animals will directly benefit corrective action are later resubmitted organisms or agents. Services in this control of the disease in humans. In and endorsed. The user fee for the category include performing laboratory these cases, we believe that the cost of endorsement of these export health tests at the National Veterinary Services the testing related to the zoonotic certificates recovers the costs for the full Laboratories (NVSL) and providing disease surveillance should be covered review including any consultations. diagnostic reagents and other veterinary by appropriated funds. At this time, Therefore, we are removing § 130.20(d) diagnostic materials and services. salmonellosis is the only zoonotic from the regulations and will not charge Diagnostic reagents are biological disease that falls into this second a user fee for export health certificates materials used in diagnostic tests to category, and user fees are not charged that are reviewed but not endorsed. detect disease agents or antibodies by for the salmonella testing that will Immediate Action causing an identifiable reaction. NVSL provide direct benefit to control of also collects data and compiles statistics disease in humans. User fees are The Administrator of the Animal and on the incidence of various livestock charged for other salmonellosis testing. Plant Health Inspection Service has diseases based on the results of the Therefore, we are amending our determined that there is good cause for veterinary diagnostic tests. regulations to state that user fees are not publishing this interim rule without We do not charge user fees for charged for veterinary diagnostic prior opportunity for public comment. veterinary diagnostic services provided services provided in relation to zoonotic Immediate action is warranted to in connection with Federal programs to diseases when the Administrator has encourage participation in programs to control or eradicate diseases or pests determined that there is a significant control and eradicate disease and pests (program diseases). Examples of threat to human health. of livestock or poultry, eliminate program diseases are tuberculosis, We are adding a new § 130.49 to the confusion about when user fees are brucellosis, and pseudorabies. These regulations that lists the circumstances charged, and to eliminate an activities are covered by appropriated under which we do not charge user fees unnecessary user fee. These changes funding. Our policy not to charge for for veterinary diagnostic services. The will benefit users and help ensure that these services was specified in the exemptions will be specified as follows: veterinary diagnostic services will background portion in previously User fees for veterinary diagnostic continue to be requested for testing in published proposed and final rules services, including, but not limited to, connection with program diseases and concerning user fees for veterinary tests and diagnostic reagents specified zoonotic disease surveillance when diagnostic services (58 FR 15292–15301, in §§ 130.14 through 130.18, are not there is a significant risk to human Docket No. 91–021–4, March 22, 1993, charged under the following conditions: health. and 58 FR 38954–38961, Docket No. 91– (1) When veterinary diagnostic Because prior notice and other public 021–5, July 21, 1993). In this document, services are provided in connection procedures with respect to this action we are amending the regulations to with Federal programs to control or are impracticable and contrary to the specify that user fees are not charged for eradicate diseases or pests of animals in public interest under these conditions, these services. the United States (program diseases); we find good cause under 5 U.S.C. 553 While not specified in earlier user fee (2) When veterinary diagnostic to make it effective upon signature. We rules, there are other activities which services are provided in support of will consider comments that are we cover by appropriated funding zoonotic disease surveillance when the received within 60 days of publication instead of user fees. We routinely Administrator has determined that there of this rule in the Federal Register. distribute veterinary diagnostic reagents is a significant risk to human health; After the comment period closes, we free of charge to laboratories throughout and will publish another document in the the United States for testing for foreign (3) When veterinary diagnostic Federal Register. It will include a animal diseases. This allows these reagents are distributed within the discussion of any comments we receive laboratories to immediately test animals United States for testing for foreign and any amendments we are making to suspected of being infected with a animal diseases. the rule as a result of the comments. foreign animal disease. The distribution Nonendorsed Export Health Certificates of these diagnostic reagents is covered Executive Order 12866 and Regulatory by appropriated funding to ensure that We established a user fee for Flexibility Act we are able to identify foreign animal nonendorsed export health certificates This rule has been reviewed under diseases as quickly as possible. In this in a final rule published in the Federal Executive Order 12866. The rule has document, we are clarifying the Register on May 7, 1996 (61 FR 20421– been determined to be not significant for regulations by specifying that this 20437, Docket No. 92–174–2). These are the purposes of Executive Order 12866 service is exempt from user fees. certificates that are requested from the and, therefore, has not been reviewed by In addition, we provide veterinary Animal and Plant Health Inspection the Office of Management and Budget. diagnostic services in support of Service (APHIS) and then are reviewed This rule provides that we do not zoonotic disease surveillance. Zoonotic by APHIS, but either withdrawn or charge user fees for (1) veterinary diseases are those that affect both returned without being endorsed. The diagnostic services related to program animals and humans and are user fee was intended to cover the costs diseases, (2) veterinary diagnostic communicable from animals to humans. of the APHIS review. We have reviewed services related to zoonotic disease Examples of zoonotic diseases are this user fee and have determined that surveillance when there is a significant anthrax, brucellosis, leptospirosis, we do not need to charge for these risk to human health, (3) the rabies, salmonellosis, tuberculosis, and services because these services are distribution of diagnostic reagents vesicular stomatitis. Some of these are comparable to those consultation within the United States used in testing program diseases and, therefore, user services that we provide via the for foreign animal diseases, or (4) fees are not charged, as stated above. telephone to customers requesting services provided to review, but not Occasionally, there are zoonotic information about animal or animal endorse, export health certificates. Our diseases that pose a significant threat to product exportation requirements. Most policy, has been not to charge user fees human health, and a thorough export health certificates that are for these services, and we are now Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61007 clarifying that policy in the regulations. § 130.49 Exemptions. Additionally, FSIS is amending the Therefore, this rule should have no (a) Veterinary diagnostics. User fees regulations to add the performance impact on entities whether they are for veterinary diagnostic services, standard for Salmonella in fresh pork large or small. including, but not limited to, tests and sausage, which was unavailable at the Under these circumstances, the diagnostic reagents specified in time the rule was published, and correct Administrator of the Animal and Plant §§ 130.14 through 130.18, are not a minor editorial oversight. Health Inspection Service has charged under the following conditions: DATES: This rule will be effective on determined that this action will not (1) When veterinary diagnostic January 13, 1998, unless adverse or have a significant economic impact on services are provided in connection critical comments are received on or a substantial number of small entities. with Federal programs to control or before December 15, 1997. If adverse or Executive Order 12372 eradicate diseases or pests of livestock critical comments within the scope of or poultry in the United States (program the rulemaking are received, FSIS will This program/activity is listed in the diseases); issue timely notice in the Federal Catalog of Federal Domestic Assistance (2) When veterinary diagnostic Register. under No. 10.025 and is subject to services are provided in support of ADDRESSES: Send an original and two Executive Order 12372, which requires zoonotic disease surveillance when the copies of adverse written comments intergovernmental consultation with Administrator has determined that there within the scope of the rulemaking to: State and local officials. (See 7 CFR part is a significant threat to human health; FSIS Docket Clerk, DOCKET # 97– 3015, subpart V.) and 056DF, Room 102, Cotton Annex, 300 Executive Order 12988 (3) When veterinary diagnostic 12th Street, SW, Food Safety and reagents are distributed within the Inspection Service, U.S. Department of This rule has been reviewed under United States for testing for foreign Agriculture, Washington, DC 20250– Executive Order 12988, Civil Justice animal diseases. 3700. Reference materials cited in this Reform. This rule: (1) Preempts all State (b) [Reserved]. docket will be available for public and local laws and regulations that are inspection in the FSIS Docket Room inconsistent with this rule; (2) has no Done in Washington, DC, this 7th day of from 8:30 to 4:30 p.m., Monday through retroactive effect; and (3) does not November 1997. Friday. require administrative proceedings Charles Schwalbe, FOR FURTHER INFORMATION CONTACT: before parties may file suit in court Acting Administrator, Animal and Plant Ms. challenging this rule. Health Inspection Service. Patricia Stolfa, Assistant Deputy [FR Doc. 97–29990 Filed 11–13–97; 8:45 am] Administrator, Office of Policy, Program Paperwork Reduction Act BILLING CODE 3410±34±P Development and Evaluation, (202) This rule contains no information 205–0699. collection or recordkeeping SUPPLEMENTARY INFORMATION: requirements under the Paperwork DEPARTMENT OF AGRICULTURE Reduction Act of 1995 (44 U.S.C. 3501 Background et seq.). Food Safety and Inspection Service On July 25, 1996, FSIS published a final rule ‘‘Pathogen Reduction; Hazard Regulatory Reform 9 CFR Parts 310, 381, and 417 Analysis and Critical Control Point This action is part of the President’s [Docket No. 97±056DF] (HACCP) Systems,’’ (61 FR 38806). The Regulatory Reform Initiative, which, final rule required all slaughter RIN 0583±AC40 among other things, directs agencies to establishments to test for generic E. coli remove obsolete and unnecessary Pathogen Reduction; Hazard Analysis at a frequency based on production regulations and to find less burdensome and Critical Control Point (HACCP) volume to verify that plants are meeting ways to achieve regulatory goals. SystemsÐSample CollectionÐ the established performance criteria. In List of Subjects in 9 CFR Part 130 Technical Amendments and the preamble to the final rule, FSIS Corrections: Direct Final Rule solicited comments and information on Animals, Birds, Diagnostic reagents, a number of technical issues concerning Exports, Imports, Poultry and poultry AGENCY: Food Safety and Inspection the protocols for generic E. coli testing products, Quarantine, Reporting and Service, USDA. and announced that conferences would recordkeeping requirements, Tests. ACTION: Direct final rule. be held to discuss these issues. Accordingly, 9 CFR part 130 is The first conference was held on amended as follows: SUMMARY: FSIS is making technical September 12 and 13, 1996. Participants corrections and amendments to the final discussed issues such as testing PART 130ÐUSER FEES rule, ‘‘Pathogen Reduction; Hazard frequency, sampling procedures, and 1. The authority citation for part 130 Analysis and Critical Control Point revision of the testing protocol to better continues to read as follows: (HACCP) Systems,’’ published on July account for differing establishment 25, 1996. In response to worker safety characteristics. In light of these Authority: 5 U.S.C. 5542; 7 U.S.C. 1622; 19 concerns, FSIS will permit samples comments, FSIS published the May 13, U.S.C. 1306; 21 U.S.C. 102–105, 111, 114, collected for generic E. coli testing of 114a, 134a, 134b, 134c, 134d, 134f, 135, 136, 1997, final rule ‘‘Pathogen Reduction; and 136a; 7 CFR 2.22, 2.80, and 371.2(d). turkeys to be collected by sponging two Hazard Analysis and Critical Control sites. Samples may still be collected by Point (HACCP) Systems—Technical § 130.20 [Amended] the whole bird rinse procedure (shaking Amendments and Corrections’’ (62 FR 2. Section 130.20 is amended by turkeys in a bag containing a buffer 26211). The final rule made some removing paragraph (d) and solution). FSIS will also permit changes to the E. coli testing redesignating paragraph (e) as paragraph chickens and turkeys to be taken from requirements. (d). the end of the slaughter line if it is On May 8, 1997, FSIS held a follow- 3. A new § 130.49 is added to read as impracticable to take a whole bird from up conference ‘‘Technical Conference: follows. the end of the chilling process. Review of E. coli Testing.’’ A panel of 61008 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations industry and academia representatives Commenters also expressed concern been reviewed by the Office of made presentations about the on-going about the difficulty in taking whole Management and Budget. generic E. coli verification testing by birds from the end of the chilling The Administrator has determined establishments and discussed their process, after the drip line, because the that this final rule will not have a observations and views. In response to birds on the drip line are often high off significant economic impact on a information provided at the conference, the ground and hard to reach. FSIS substantial number of small entities, as FSIS is amending the sample collection understands this concern. In the defined by the Regulatory Flexibility procedures for turkeys and allowing technical amendments final rule, FSIS Act (5 U.S.C. 601). flexibility for the collection of poultry to provided establishments with the option be sampled. of taking birds from the end of the The Pathogen Reduction/HACCP final Currently, turkeys randomly selected slaughter line for carcasses that are hot- rule included a Final Regulatory Impact for sampling must be rinsed in a buffer boned. With this rule, FSIS is amending Assessment (FRIA) (61 FR 38945). The solution. The rinsing technique involves the regulations to permit birds to be technical corrections and amendment shaking a whole turkey carcass in a bag taken at the end of the slaughter line for do not change the cost and benefit containing the buffer solution. Prior to carcasses, if sampling at the end of the estimates and impact assessments the meeting, FSIS was aware of drip line is impracticable. presented in the FRIA. concerns regarding this process. At the In the pathogen reduction/HACCP Executive Order 12988 meeting, commenters raised the issue final rule, FSIS stated that it was in the and presented data that supports an process of developing a Salmonella This final rule has been reviewed alternative means of sample collection. performance standard for fresh pork under Executive Order 12988, Civil The primary concern regarding the sausages. That work has been completed Justice Reform. In this final rule: (1) all current sampling technique for turkeys and the performance standard will be state and local laws and regulations that is the physical difficulty of shaking added to the regulations. The are inconsistent with this rule will be large turkeys (i.e., those that are 15 to performance standard is 30% (percent preempted; (2) no retroactive effect will 20 pounds). Also, some commenters positive for Salmonella), the number of be given to this rule; and (3) have stated that the size of the turkeys samples tested (n) equals 53, and the administrative proceedings will not be makes it difficult to prevent sample maximum number of positives to required before parties may file suit in contamination when the buffer solution achieve the standard (c) equals 18. The court challenging this rule. is decanted from the sampling bag into methodology used to develop this the sample bottle for transportation to performance standard was the same as Paperwork Requirements the laboratory. At the conference, data for the other ground products. To The Pathogen Reduction/HACCP final was presented which indicated that a further explain how the performance rule included a paperwork analysis (61 sponging technique is more practical, standard was developed, FSIS is making FR 38862) prepared in accordance with and provides accurate and reliable available copies of the paper the Paperwork Reduction Act. FSIS has results for microbiological sampling. ‘‘Estimation of Salmonella Prevalence in FSIS agrees that shaking turkeys in determined that the technical 25-gram Portions of Fresh Ground Pork’’ corrections and amendments in this rule the bag may be difficult for individuals in the FSIS Docket Room. taking the sample and that sample do not change any information Lastly, FSIS is making a technical collection burden hours. contamination may occur. Because of correction to 9 CFR 417.2(e). The the lack of data in support of an section should reference the Poultry Final Rules alternative method, FSIS has not Products Inspection Act (PPIA) and the List of Subjects previously adopted another sample Federal Meat Inspection Act (FMIA). collection method for turkeys. However, FSIS inadvertently omitted references to 9 CFR Part 310 after reviewing the data presented at the sections 21 U.S.C. 456 and 463 of the Meat inspection, Microbial testing. conference, FSIS has determined that a PPIA and only referenced sections 21 sponge method for the collection of U.S.C. 608 and 621 of the FMIA. 9 CFR Part 381 turkey samples is effective. Therefore, Therefore, references to the PPIA FSIS will amend the Pathogen authority will be added to this section. Poultry and poultry products, Reduction/HACCP final rule to permit FSIS expects no adverse public Microbial testing. establishments to sample turkeys by reaction resulting from this change in For reasons set forth in this preamble, sponging the back and thigh or to regulatory language. Therefore, unless 9 CFR chapter III is amended as follows: continue using the whole bird rinse the Agency receives adverse or critical procedure. comments within the scope of this PART 310ÐPOST MORTEM Data collected using the sponge rulemaking, or a notice of intent to INSPECTION technique will be evaluated using submit adverse comments within the statistical process control techniques as scope of this rulemaking within 30 days, 1. The authority citation for part 310 required in the May 13, 1997, technical the action will become final 60 days continues to read as follows: amendments final rule. FSIS has begun after publication in the Federal Authority: 21 U.S.C. 601–695; 7 CFR 2.18, to develop m/M criteria for turkey Register. If adverse comments within 2.53. samples collected by the sponge method the scope of the rulemaking are and will release data from this baseline received, the final rulemaking notice 2. Section 310.25 is amended by quarterly so that establishments can use will be withdrawn and a proposed revising Table 2 in paragraph (b)(1) to them for statistical process control rulemaking notice will be published. read as follows: techniques. FSIS also is in the process The proposed rulemaking notice will § 310.25 Contamination with of developing m/M criteria for cattle and establish a comment period. microorganisms; pathogen reduction swine samples collected by the sponge performance standards for Salmonella. method. The results from FSIS’s first Executive Order 12866 and Regulatory * * * * * quarter of the study is as follows: for Flexibility Act cattle m=negative and M=1; for swine This final rule has been determined to (b) * * * m=.1 and M=100. be not significant and, therefore, has not (1) * * * Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61009

TABLE 2.ÐSALMONELLA PERFORMANCE STANDARDS

Performance Maximum standard Number of number of Class of product (percent samples positives to positive for tested achieve a (n) standard Salmonella) (c)

Steers/heifers ...... 1.0 82 1 Cows/bulls ...... 2.7 58 2 Ground beef ...... 7.5 53 5 Hogs ...... 8.7 55 6 Fresh pork sausages ...... 30 53 18 a Performance Standards are FSIS's calculation of the national prevalence of Salmonella on the indicated raw product based on data devel- oped by FSIS in its nationwide microbiological data collection programs and surveys. (Copies of Reports on FSIS's Nationwide Microbiological Data Collection Programs and Nationwide Microbiological Surveys used in determining the prevalence of Salmonella on raw products are avail- able in the FSIS Docket Room.)

* * * * * § 417.2 Hazard Analysis and HACCP Plan. State of Florida. Therefore, in 4. Section 417.2 is amended by accordance with the law, the Secretary PART 381ÐPOULTRY PRODUCTS revising paragraph (e) to read as follows: of Agriculture is designating the State of INSPECTION REGULATIONS * * * * * Florida to receive Federal inspection 3. The authority citation for part 381 (e) Pursuant to 21 U.S.C. 456, 463, with respect to operations and continues to read as follows: 608, and 621, the failure of an transactions within the State, and FSIS establishment to develop and is amending the Federal meat and Authority: 7 U.S.C. 138f, 450; 21 U.S.C. implement a HACCP plan that complies poultry inspection regulations by 451–470, 7 CFR 2.18, 2.53. with this section, or to operate in adding Florida to the list of Subpart KÐPost Mortem Inspection; accordance with the requirements of ‘‘designated’’ States. this part, may render the products Disposition of Carcasses and Parts DATES: This final rule will be effective produced under those conditions on December 2, 1997. 4. Section 381.94 is amended by adulterated. revising paragraph (a)(2)(ii) to read as Done at Washington, DC, on November 4, FOR FURTHER INFORMATION CONTACT: Dr. follows: 1997. William Leese, Director, Federal-State Relations Staff, Food Safety and § 381.94 Contamination with Thomas J. Billy, microorganisms; process control Administrator. Inspection Service, U.S. Department of verification criteria and testing; pathogen [FR Doc. 97–29929 Filed 11–13–97; 8:45 am] Agriculture, Washington, DC 20250– 3700 at (202) 720–6313. reduction standards. BILLING CODE 3410±DM±P (a) * * * SUPPLEMENTARY INFORMATION: (2) Sampling requirements. DEPARTMENT OF AGRICULTURE Background (ii) Sample collection. A whole bird must be taken from the end of the Food Safety and Inspection Service Under section 301 of the Federal Meat chilling process. If this is impracticable, Inspection Act (FMIA) and section 5 of the whole bird can be taken from the 9 CFR Parts 331 and 381 the Poultry Products Inspection Act end of the slaughter line. Samples must (PPIA), a State may administer State [Docket No. 97±050F] be collected by rinsing the whole meat and poultry inspection programs carcass in an amount of buffer Designation of the State of Florida provided the State has developed and is appropriate for that type of bird. Under the Federal Meat Inspection Act effectively enforcing State meat and Samples from turkeys also may be and the Poultry Products Inspection poultry inspection requirements at least collected by sponging the carcass on the Act equal to those imposed under titles I back and thigh.1 and IV of the FMIA and section 1–4, 6– * * * * * AGENCY: Food Safety and Inspection 10, and 12–22 of the PPIA (collectively Service, USDA. referred to below as the titles). These PART 417ÐHAZARD ANALYSIS AND ACTION: Final rule. titles contemplate continuous ongoing CRITICAL CONTROL POINT (HACCP) programs. When States can no longer SUMMARY: SYSTEMS Representatives of the State of effectively enforce meat and poultry Florida have advised the Agency that, inspection requirements at least equal to 3. The authority citation for part 417 because of a lack of funding, the State Federal requirements, then they must be continues to reads as follows: of Florida will no longer continue ‘‘designated’’ by the Secretary to receive administering its State meat and poultry Authority: 7 U.S.C. 450; 21 U.S.C. 451– Federal inspection. 470, 601–695; 7 U.S.C. 1901–1906; 7 CFR inspection programs after November 30, 2.18, 2.53. 1997. The Food Safety and Inspection In accordance with the FMIA and Service (FSIS) is mandated by law to PPIA, the Secretary had determined that 1 A copy of FSIS’s ‘‘Guidelines for Escherichia assume the responsibility, previously the State of Florida had developed and coli Testing for Process Control Verification in held by the State of Florida, for was enforcing State meat and poultry Poultry Slaughter Establishments’’ and ‘‘FSIS inspection requirements for Turkey Microbiological Procedures for Sponge administering the meat and poultry Sample Collection and Methods of Analysis’’ are inspection programs with respect to establishments at least equal to Federal available for inspection in the FSIS Docket Room. operations and transactions within the meat and poultry inspection 61010 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations requirements under the titles. However, Executive Order 12866 and Regulatory 9 CFR Part 381 on July 23, 1997, representatives of the Flexibility Act Poultry and poultry products. State of Florida notified FSIS that, This final rule has been determined to because of a lack of funding, Florida Accordingly, 9 CFR parts 331 and 381 be not significant under Executive Order are amended as follows: will no longer continue to administer its 12866 and, therefore, has not been State meat and poultry inspection reviewed by the Office of Management PART 331ÐSPECIAL PROVISIONS programs after November 30, 1997. The and Budget. FOR DESIGNATED STATES AND representatives have requested that the The Administrator, FSIS, has TERRITORIES; AND FOR Department assume responsibility for determined that this final rule will not DESIGNATION OF ESTABLISHMENTS the meat and poultry inspection have a significant economic impact on WHICH ENDANGER PUBLIC HEALTH programs. a substantial number of small entities, AND FOR SUCH DESIGNATED In view of the termination date, it is as defined by the Regulatory Flexibility ESTABLISHMENTS determined that the State of Florida Act (5 U.S.C. 601). The U.S. Department would not effectively enforce of Agriculture, pursuant to law, is 1. The authority citation for part 331 requirements at least equal to those assuming the responsibility, previously continues to read as follows: imposed under the titles. Therefore, the held by the State of Florida, of Authority: 21 U.S.C. 601–695; 7 CFR 2.18, Secretary of Agriculture must designate administering the meat and poultry 2.53. the State of Florida under section inspection programs with respect to § 331.2 [Amended] 301(c)(3) of the FMIA and section 5(c)(3) operations and transactions within the of the PPIA. Therefore, on and after State of Florida. This action will affect 2. The table in section 331.2 is December 2, 1997, the provisions of the approximately 122 State, 26 custom amended in the ‘‘State’’ column by titles will apply to operations and exempt, and 0 Talmadge Aiken meat adding ‘‘Florida’’ immediately below transactions within the State of Florida, and poultry establishments in Florida, ‘‘Connecticut’’ and in the ‘‘Effective date unless exempt under sections 23 or and most, if not all, of which may be of application of Federal provisions’’ 301(c)(2) of the FMIA or sections 5(c)(2) presumed to be small businesses. column, by adding ‘‘Dec. 2, 1997’’ on or 15 of the PPIA. However, this is not a substantial the line with ‘‘Florida.’’ Owners or operators of Florida’s meat number of establishments given the PART 381ÐPOULTRY PRODUCTS and poultry establishments wishing to approximately 6,800 small meat and INSPECTION continue operations after November 30, small poultry establishments 1997, must contact the FSIS District nationwide, which are either federally 3. The authority citation for Part 381 Office in order to receive Federal or State inspected. In addition, the continues to read as follows: inspection. This office will provide application of certain Federal facility information concerning requirements Authority: 7 U.S.C. 138f, 450; 21 U.S.C. and other requirements will be flexible, 451–470; 7 CFR 2.18, 2.53. and exemptions under the FMIA and and each facility will be reviewed with the PPIA, applications for inspection, regard to the circumstances peculiar to § 381.221 [Amended] and requests for surveys of that establishment. Further, it is not 4. The table in section 381.221 is establishments. Address anticipated that significant costs will be amended in the ‘‘States’’ column by correspondence to USDA/FSIS District incurred by these Florida adding ‘‘Florida’’ immediately below Office, 100 Alabama Street, SW, Suite establishments as a result of this action. ‘‘Connecticut’’ and in the ‘‘Effective date 3R90, Atlanta, GA 30303. Executive Order 12988 of application of Federal provisions’’ The Administrator, FSIS, has column, by adding ‘‘Dec. 2, 1997,’’ on determined that there is good cause for This final rule has been reviewed the line with ‘‘Florida.’’ issuing this final rule without prior under Executive Order 12988, Civil notice and opportunity for public Justice Reform. This rule: (1) Preempts Done at Washington, DC, on: November 4, 1997. comment. Because the State of Florida State and local laws and regulations that has advised FSIS that its State-operated are inconsistent with this rule; (2) has Thomas J. Billy, meat and poultry inspection programs no retroactive effect; and (3) does not Administrator. will be discontinued, the Agency is require administrative proceedings [FR Doc. 97–29928 Filed 11–13–97; 8:45 am] mandated by law to assume the before parties may file suit in court BILLING CODE 3410±DM±P responsibilities for administering the challenging this rule. However, the meat and poultry inspection programs. administrative procedures specified in 9 It is necessary, therefore, to designate CFR 306.5 and 381.35 must be DEPARTMENT OF TRANSPORTATION the State of Florida immediately, in exhausted prior to any judicial accordance with section 301(c)(3) of the challenge of the application of the Federal Aviation Administration FMIA and section 5(c)(3) of the PPIA, in provisions of this rule, if the challenge order to carry out the Secretary’s involves any decision of an FSIS 14 CFR Part 39 employee relating to inspection services responsibilities under the FMIA and [Docket No. 96±ANE±35; Amendment 39± PPIA. provided under the FMIA or the PPIA. 10134; AD 97±19±13] In addition, it does not appear that Paperwork Requirements additional relevant information would RIN 2120±AA64 be made available to the Secretary by This rule has been reviewed under the public participation in this rulemaking Paperwork Reduction Act and imposes Airworthiness Directives; Pratt & proceeding. Accordingly, under the no new paperwork or recordkeeping Whitney JT8D±200 Series Turbofan administrative procedures in 5 U.S.C. requirements. Engines 553, it is found upon good cause that List of Subjects AGENCY: Federal Aviation notice and other public procedures are Administration, DOT. impracticable and contrary to the public 9 CFR Part 331 ACTION: Final rule; correction. interest. Meat inspection. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61011

SUMMARY: This document makes a blackhead, increased rate of weight gain, Authority: 21 U.S.C. 360b, 371. correction to Airworthiness Directive and improved feed efficiency. § 558.120 [Amended] (AD) 97–19–13 applicable to Pratt & EFFECTIVE DATE: November 14, 1997. Whitney (PW) JT8D–200 series turbofan FOR FURTHER INFORMATION CONTACT: 2. Section 558.120 Carbarsone (not engines that was published in the Jeffrey M. Gilbert, Center for Veterinary U.S.P.) is amended by redesignating Federal Register on September 19, 1997 Medicine (HFV–128), Food and Drug paragraph (c) as paragraph (d), by (62 FR 49135). The paragraph references Administration, 7500 Standish Pl., reserving paragraph (c), and in newly to the Accomplishment Instructions of Rockville, MD 20855, 301–594–1602. redesignated paragraph (d)(1)(iii)(b) by PW Alert Service Bulletin (ASB) No. SUPPLEMENTARY INFORMATION: Alpharma removing ‘‘No. 000004’’ and adding in 5944, Revision 3, dated December 16, Inc., One Executive Dr., P.O. Box 1399, its place ‘‘Nos. 000004 and 046573’’. 1994, in paragraph (a)(3) of the Fort Lee, NJ 07024, is sponsor of Dated: October 22, 1997. compliance section are incorrect. This ANADA 200–203 that provides for Stephen F. Sundlof, document corrects the paragraph combining approved carbarsone and Director, Center for Veterinary Medicine. references. In all other respects, the bacitracin zinc Type A medicated [FR Doc. 97–30033 Filed 11–13–97; 8:45 am] original document remains the same. articles to make Type C medicated feeds BILLING CODE 4160±01±F EFFECTIVE DATE: November 14, 1997. for turkeys containing carbarsone 227 to FOR FURTHER INFORMATION CONTACT: 340.5 grams per ton (g/t) and bacitracin Christopher Spinney, Aerospace zinc 4 to 45 g/t. The Type C medicated Engineer, Engine Certification Office, feed is used as an aid in the prevention OCCUPATIONAL SAFETY AND FAA, Engine and Propeller Directorate, of blackhead, for increased rate of HEALTH REVIEW COMMISSION 12 New England Executive Park, weight gain, and improved feed Burlington, MA 01803–5299; telephone efficiency. 29 CFR Part 2200 (781) 238–7175, fax (781) 238–7199. Alpharma Inc.’s, ANADA 200–203 is approved as a generic copy of SUPPLEMENTARY INFORMATION: A final Rules of Procedure for E±Z Trials rule airworthiness directive applicable Hoffmann-LaRoche’s NADA 136–484. The ANADA is approved as of AGENCY: Occupational Safety and Health to Pratt & Whitney (PW) JT8D–200 Review Commission. series turbofan engines, was published November 14, 1997, and the regulations in the Federal Register on September are amended in § 558.120 (21 CFR ACTION: Final rule; correcting 558.120) to reflect the approval. The 19, 1997 (62 FR 49135). The following amendment. basis for approval is discussed in the correction is needed: freedom of information summary. SUMMARY: This document restores the § 39.13 [Corrected] In addition, § 558.120 is revised by selection provision for commencing E– On page 49136, in the third column, redesignating paragraph (c) as (d), by Z Trial, 29 CFR 2200.203(a), which was in the Compliance Section, in paragraph reserving paragraph (c), and newly inadvertently removed. redesignated paragraph (d)(1)(iii)(b) is (a)(3), in the sixth line, ‘‘2.A.(2) (c) and DATES: November 14, 1997. (d) or (f) and (g)’’ is corrected to read amended to reflect the approval. In accordance with the freedom of ‘‘2.A.(2) (a) and (b) or (d) and (e)’’. FOR FURTHER INFORMATION CONTACT: information provisions of 21 CFR part Earl R. Ohman, Jr., General Counsel, Issued in Burlington, MA, on November 6, 20 and 514.11(e)(2)(ii), a summary of 1997. (202) 606–5410, Occupational Safety safety and effectiveness data and and Health Review Commission, 1120 Jay J. Pardee, information submitted to support 20th Street NW., 9th Floor, Washington, Manager, Engine and Propeller Directorate, approval of this application may be seen DC 20036–3419. Aircraft Certification Service. in the Dockets Management Branch [FR Doc. 97–29968 Filed 11–13–97; 8:45 am] (HFA–305), Food and Drug SUPPLEMENTARY INFORMATION: On BILLING CODE 4910±13±U Administration, 12420 Parklawn Dr., October 30, 1997, (62 FR 58650), rm. 1–23, Rockville, MD 20857, between paragraph (a) of § 2200.203 was 9 a.m. and 4 p.m., Monday through inadvertently removed. In order for the DEPARTMENT OF HEALTH AND Friday. Rules of Procedures for E–Z trial to HUMAN SERVICES The agency has determined under 21 operate effectively, paragraph (a) must CFR 25.33(a)(1) that this action is of a be restored. Food and Drug Administration type that does not individually or List of Subjects in 29 CFR Part 2200 cumulatively have a significant effect on 21 CFR Part 558 the human environment. Therefore, Administrative practice and neither an environmental assessment procedure, Hearing and appeal New Animal Drugs For Use In Animal nor an environmental impact statement procedures. Feeds; Carbarsone and Bacitracin Zinc is required. For the reasons set forth in the AGENCY: Food and Drug Administration, List of Subjects in 21 CFR Part 558 preamble, the Occupational Safety and HHS. Animal drugs, Animal feeds. Health Review Commission amends ACTION: Final rule. Therefore, under the Federal Food, Title 29, Chapter XX, Part 2200, Subpart SUMMARY: The Food and Drug Drug, and Cosmetic Act and under M of the Code of Federal Regulations as Administration (FDA) is amending the authority delegated to the Commissioner follows: of Food and Drugs and redelegated to animal drug regulations to reflect PART 2200ÐRULES OF PROCEDURE approval of an abbreviated new animal the Center for Veterinary Medicine, 21 drug application (ANADA) filed by CFR part 558 is amended as follows: 1. The authority citation continues to Alpharma Inc. The ANADA provides for PART 558ÐNEW ANIMAL DRUGS FOR read as follows: using approved carbarsone and USE IN ANIMAL FEEDS Authority: 29 U.S.C. 661(g). bacitracin zinc Type A medicated articles to make Type C medicated 1. The authority citation for 21 CFR 2. Section 2200.203 is amended by turkey feeds used for prevention of part 558 continues to read as follows: adding paragraph (a), to read as follow: 61012 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

§ 2200.203 Commencing E±Z Trial. SUPPLEMENTARY INFORMATION: The are impracticable and contrary to the (a) Selection. Upon receipt of a Notice PBGC’s regulation on Allocation of public interest. This finding is based on of Contest, the Chief Administrative Assets in Single-Employer Plans (29 the need to determine and issue new Law Judge may, at his or her discretion, CFR part 4044) prescribes actuarial interest assumptions promptly so that assign an appropriate case for E–Z Trial. assumptions for valuing plan benefits of the assumptions can reflect, as * * * * * terminating single-employer plans accurately as possible, current market Dated: November 7, 1997. covered by title IV of the Employee conditions. Earl R. Ohman, Jr., Retirement Income Security Act of 1974. Because of the need to provide General Counsel. Among the actuarial assumptions immediate guidance for the valuation of prescribed in part 4044 are interest benefits in plans with valuation dates [FR Doc. 97–29956 Filed 11–13–97; 8:45 am] assumptions. These interest during December 1997, the PBGC finds BILLING CODE 7600±01±M assumptions are intended to reflect that good cause exists for making the current conditions in the financial and assumptions set forth in this annuity markets. amendment effective less than 30 days PENSION BENEFIT GUARANTY Two sets of interest assumptions are after publication. CORPORATION prescribed, one set for the valuation of The PBGC has determined that this 29 CFR Part 4044 benefits to be paid as annuities and one action is not a ‘‘significant regulatory set for the valuation of benefits to be action’’ under the criteria set forth in Allocation of Assets in Single- paid as lump sums. This amendment Executive Order 12866. Employer Plans; Interest Assumptions adds to appendix B to part 4044 the Because no general notice of proposed for Valuing Benefits annuity and lump sum interest rulemaking is required for this assumptions for valuing benefits in amendment, the Regulatory Flexibility AGENCY: Pension Benefit Guaranty plans with valuation dates during Act of 1980 does not apply. See 5 U.S.C. Corporation. December 1997. 601(2). ACTION: Final rule. For annuity benefits, the interest List of Subjects in 29 CFR Part 4044 assumptions will be 5.60 percent for the SUMMARY: The Pension Benefit Guaranty first 25 years following the valuation Pension insurance, Pensions. Corporation’s regulation on Allocation date and 5.00 percent thereafter. The In consideration of the foregoing, 29 of Assets in Single-Employer Plans annuity interest assumptions represent a CFR part 4044 is amended as follows: prescribes interest assumptions for decrease (from those in effect for valuing benefits under terminating November 1997) of 0.10 percent for the PART 4044ÐALLOCATION OF single-employer plans. This final rule first 25 years following the valuation ASSETS IN SINGLE-EMPLOYER amends the regulation to adopt interest date and are otherwise unchanged. For PLANS assumptions for plans with valuation benefits to be paid as lump sums, the dates in December 1997. 1. The authority citation for part 4044 interest assumptions to be used by the continues to read as follows: EFFECTIVE DATE: December 1, 1997. PBGC will be 4.50 percent for the period FOR FURTHER INFORMATION CONTACT: during which a benefit is in pay status Authority: 29 U.S.C. 1301(a), 1302(b)(3), Harold J. Ashner, Assistant General and 4.00 percent during any years 1341, 1344, 1362. Counsel, Office of the General Counsel, preceding the benefit’s placement in pay 2. In appendix B, a new entry is Pension Benefit Guaranty Corporation, status. The lump sum interest added to Table I, and Rate Set 50 is 1200 K Street, NW., Washington, DC assumptions are unchanged from those added to Table II, as set forth below. 20005, 202–326–4024. (For TTY and in effect for November 1997. The introductory text of each table is TDD, call 800–877–8339 and request The PBGC has determined that notice republished for the convenience of the connection to 202–326–4024). and public comment on this amendment reader and remains unchanged.

Appendix B to Part 4044—Interest Rates Used to Value Annuities and Lump Sums

Table I.—Annuity Valuations

[This table sets forth, for each indicated calendar month, the interest rates (denoted by i1, i2, * * *, and referred to generally as it) assumed to be in effect between specified anniversaries of a valuation date that occurs within that calendar month; those anniversaries are specified in the columns adjacent to the rates. The last listed rate is assumed to be in effect after the last listed anniversary date.]

The values of it are: For valuation dates occurring in the monthÐ it for t = it for t = it for t =

******* December 1997 ...... 0560 1±25 .0500 >25 N/A N/A

Table II.—Lump Sum Valuations [In using this table: (1) For benefits for which the participant or beneficiary is entitled to be in pay status on the valuation date, the immediate annuity rate shall apply; (2) For benefits for which the deferral period is y years (where y is an integer and 0 < y ≤ n1), interest rate i1 shall apply from the valuation date for a period of y years, and thereafter the immediate annuity rate shall apply; (3) For benefits for which the deferral period is y years (where y is an integer and n1 < y ≤ n1 + n2), interest rate i2 shall apply from the valuation date for a period of y – n1 years, interest rate i1 shall apply for the following n1 years, and thereafter the immediate annuity rate shall apply; (4) For benefits for which the deferral period is y years (where y is an integer and y > n1 + n2), interest rate i3 shall apply from the valuation date for a period of y – n1 – n2 years, interest rate i2 shall Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61013

apply for the following n2 years, interest rate i1 shall apply for the following n1 years, and thereafter the immediate annuity rate shall apply.]

For plans with a valu- Imme- Deferred annuities (percent) ation date diate an- Rate set nuity rate On or i1 i2 i3 n1 n2 after Before (percent)

******* 50 ...... 12±1±97 01±1±98 4.50 4.00 4.00 4.00 7 8

Issued in Washington, D.C., on this 10th or loan programs, or the rights and Military Departments, the Chairman of day of November 1997. obligations of recipients thereof; or the Joint Chiefs of Staff, the Combatant David M. Strauss, (4) Raise novel legal or policy issues Commands, the Inspector General of the Executive Director, Pension Benefit Guaranty arising out of legal mandates, the Department of Defense, the Defense Corporation. President’s priorities, or the principles Agencies, and the DoD Field Activities [FR Doc. 97–30043 Filed 11–13–97; 8:45 am] set forth in this Executive order. (hereafter referred to collectively as ‘‘the BILLING CODE 7708±01±P Public Law 96–354, Regulatory DoD Components’’). Flexibility Act (5 U.S.C. 601) (b) National Security Agency/Central Security Service records are subject to It has been certified that this rule is DEPARTMENT OF DEFENSE this part unless the records are exempt not subject to the Regulatory Flexibility under section 6 of Pub. L. 86–36 (1959), Act (5 U.S.C. 601) because it would not, Office of the Secretary codified at 50 U.S.C. 402 note. The if promulgated, have a significant records of the Defense Intelligence 32 CFR Part 285 economic impact on a substantial Agency, National Reconnaissance number of small entities. This rule Office, and the National Imagery and [DoD 5400.7] implements the Freedom of Information Mapping Agency are also subject to this Act (5 U.S.C. 552), a statue concerning DoD Freedom of Information Act part unless the records are exempt the release of Federal Government under 10 U.S.C. 424. (FOIA) Program records, and does not economically § 285.3 Policy. AGENCY: Department of Defense. impact Federal Government relations with the private sector. It is DoD policy to: ACTION: Final rule. (a) Promote public trust by making the Public Law 96–511, Paperwork maximum amount of information SUMMARY: This revision conforms 32 Reduction Act (44 U.S.C. Chapter 35) CFR part 285, DoD Freedom of available to the public, in both hard It has been certified that this part does Information Act (FOIA) program, to the copy and electronic formats, on the not impose any reporting or requirements of the Electronic Freedom operation and activities of the recordkeeping requirements under the of Information Act Amendments of Department of Defense, consistent with Paperwork Reduction Act of 1995. 1996, as amended by Pub. L. 104–231. DoD responsibility to ensure national security. EFFECTIVE DATE: September 29, 1997. List of Subjects in 32 CFR Part 285 (b) Allow a requester to obtain agency FOR FURTHER INFORMATION CONTACT: Freedom of information. records from the Department of Defense Mr. C. Talbott, 703–697–1171. Accordingly, 32 CFR part 285 is that are available through other public SUPPLEMENTARY INFORMATION: On May revised to read as follows: information services without invoking 12, 1997 (62 FR 25875), the Department the FOIA. PART 285ÐDOD FREEDOM OF of Defense published a proposed rule for (c) Make available, under the INFORMATION ACT (FOIA) PROGRAM comment. No comments were received. procedures established by 32 CFR part 286, those agency records that are Executive Order 12866, Regulatory Sec. requested by a member of the general Planning and Review 285.1 Purpose. 285.2 Applicability and scope. public who explicitly or implicitly cites It has been determined that this final 285.3 Policy. the FOIA. rule (32 CFR part 285) is not a 285.4 Responsibilities. (d) Answer promptly all other significant regulatory action. The rule 285.5 Information requirements. requests for information, agency does not: Authority: 5 U.S.C. 552. records, objects, and articles under (1) Have an annual effect to the § 285.1 Purpose. established procedures and practices. economy of $100 million or more or This part: (e) Release agency records to the adversely affect in a material way the (a) Updates policies and public unless those records are exempt economy; a section of the economy; responsibilities for the implementation from mandatory disclosure as outlined productivity’ competition; jobs; the of the DoD FOIA Program under 5 in 5 U.S.C. 552. Make discretionary environment; public health or safety; or U.S.C. 552. disclosures of exempt records or State, local, or tribal governments, or (b) Continues to delegate authorities information whenever disclosure would communities; and responsibilities for the effective not foreseeably harm an interest (2) Create a serious inconsistency or administration of the FOIA program. protected by a FOIA exemption. otherwise interfere with an action taken (f) Process requests by individuals for or planned by another Agency; § 285.2 Applicability and scope. access to records about themselves (3) Materially alter the budgetary (a) This part applies to the Office of contained in a Privacy Act system of impact of entitlements, grants, user fees, the Secretary of Defense (OSD), the records under procedures set forth in 61014 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

DoD 5400.11–R,1 and procedures (5) Maintain and make available for The Postal Service promulgated outlined in this part amplified by 32 public inspection and copying current standards implementing the statute CFR part 286. indices of all (a)(2) records as required effective October 1, 1995. Since that by 10 U.S.C. 552(a)(2). time, the Postal Service has consistently § 285.4 Responsibilities. held that ‘‘backend premiums’’ such as (a) The Assistant Secretary of Defense § 285.5 Information requirements. those described above are to be for Public Affairs shall: The reporting requirements in subpart considered advertising for the product (1) Direct and administer the DoD G of 32 CFR part 286 have been assigned offered as a premium. In addition, the FOIA Program to ensure compliance Report Control Symbol DD–PA(A) 1365. Postal Service has generally concluded with policies and procedures that Dated: November 5, 1997. that ‘‘utilitarian’’ items such as coffee govern the administration of the mugs, t-shirts, tote bags, umbrellas, and program. L.M. Bynum, Alternate OSD Federal Register Liaison similar items are not normally related to (2) Issue a DoD FOIA regulation and an organization’s qualifying purposes, other discretionary instructions and Officer, Department of Defense. [FR Doc. 97–29659 Filed 11–13–97; 8:45 am] thus disqualifying such advertisements guidance to ensure timely and from being mailed at the Nonprofit reasonably uniform implementation of BILLING CODE 5000±04±M Standard Mail rates. the FOIA in the Department of Defense. The proposed rule offered standards (3) Internally administer the FOIA by which, if met, the Postal Service Program for OSD, the Chairman of the POSTAL SERVICE would not consider the announcement Joint Chiefs of Staff and, as an exception of the backend premium as an 2 39 CFR Part 111 to DoD Directive 5100.3, the Combatant ‘‘advertisement.’’ Specifically, the Postal Commands. Service proposed two tests. First, the (4) As the designee of the Secretary of Eligibility Requirements for Certain Nonprofit Standard Mail Rate Matter requested contribution must be at least Defense, serve as the sole appellate five (5) times the cost of the premium authority for appeals to decisions of AGENCY: Postal Service. to exempt the announcement from being respective Initial Denial Authorities ACTION: Final rule. considered as an advertisement for the within OSD, the Chairman of the Joint premium. The cost of the premium is its Chiefs of Staff, the Combatant SUMMARY: This notice adopts a proposed actual cost to the nonprofit organization. Commands, and the DoD Field rule which was published in the Second, the requested contribution must Activities. Federal Register on September 8, 1997 be at least three (3) times the (b) The General Counsel of the (62 FR 47178–47179). It amends the represented value in the mailpiece, if Department of Defense shall provide regulations of the Postal Service any, of the premium. Each test must be uniformity in the legal interpretation of governing the eligibility requirements met or the offer will be considered an this part. for mail to be sent at the Nonprofit advertisement. (c) The Heads of the DoD Components Standard Mail rates of postage. For the The Postal Service received a total of shall: most part, this final rule adopts the 12 comments on the proposed rule. In (1) Publish in the Federal Register proposal as it was published with one fashion or another, all of the any instructions necessary for the changes suggested in comments commenters expressed their support for internal administration of this part received from interested parties. a test or threshold by which within a DoD Component that are not EFFECTIVE DATE: November 14, 1997. announcements of backend premiums prescribed by this Directive or by other would not be considered as FOR FURTHER INFORMATION CONTACT: issuances of the Assistant Secretary of advertisements, thereby eliminating the Defense (Public Affairs). For the Jerome M. Lease, 202–268–5188. need for consideration of the guidance of the public, the information SUPPLEMENTARY INFORMATION: The substantially related test. Accordingly, specified in 5 U.S.C. 552(a)(1) shall be proposed rule discussed in detail the after full consideration of the comments published in accordance with DoD common practice of nonprofit received, the Postal Service believes it is 3 Directive 5400.9. organizations to offer premium items, appropriate to adopt, with revision of (2) Conduct training on the provisions such as tote bags, umbrellas, t-shirts, the ratios, the proposed changes in of this part, 5 U.S.C. 552, and 32 CFR and coffee mugs when seeking eligibility requirements at this time. part 286 for officials and employees contributions or membership dues who implement the FOIA. payments from new members. As Evaluation of Comments Received (3) Submit the report prescribed in explained in the proposed rule, by Written comments were received from subpart G of 32 CFR part 286. statute, material that advertises, 12 organizations and associations (4) Make available for public promotes, offers, or, for a fee or representing nonprofit organizations. Of inspection and copying in an consideration, recommends, describes, primary concern to 11 of the 12 appropriate facility or facilities, in or announces the availability of any commenters is the Postal Service’s accordance with rules published in the product or service, other than separately proposed test of requiring a contribution Federal Register, the records specified restricted travel, insurance, and or dues payment to be at least five times in 10 U.S.C. 552(a)(2), unless such financial instruments such as credit the cost and three times the represented records are published and copies are cards, is ineligible for the nonprofit value of the premium to activate the offered for sale. These records shall be rates of postage unless the sale of the exception from material being made available to the public in hard product or the provision of such service considered as an advertisement. Four copy, by computer telecommunications, is substantially related to the exercise or commenters supported the proposal in or other electronic means. performance by the organization of one its entirety including the five times cost or more of the purposes used by the and three times represented value 1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port organization to qualify for mailing at the criteria. On the other hand, two Royal Road, Springfield, VA 22161. Nonprofit Standard Mail rates or other commenters requested a test of three 2 See footnote 1. prescribed exceptions are met. 39 U.S.C. times the cost and eliminating the 3 See footnote 1. 3626(j)(1)(D). represented value test. Other Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61015 suggestions included a test of three not be considered to be an application of the policy adopted in the times cost and 11⁄2 times represented advertisement if the requested donation final rule, although no justification for value; three times cost and two times is more than two times the represented this request was offered in the comment represented value; four times cost and value of the premium(s). (For example, provided. These requests are beyond the two times represented value; and a if the request is for $100.00, the scope of this rulemaking. Nevertheless, single test that would be based on the represented value of the premium(s) the Postal Service has an ongoing lower of cost or market value of the could be no more than $49.99). With dialogue with the nonprofit community premium. respect to cost to the nonprofit, the and concerns such as those expressed The most common reason for solicitation will not be considered an here have been considered. requesting lower numbers be used, advertisement if the requested donation Finally, one commenter offered views particularly with respect to the test is more than four times the represented concerning the application of the related to the ‘‘represented value’’ of the value of the premium(s). (For example, ‘‘substantially related’’ standard. These premium, is a disclosure requirement of if the request is for $100.00, the cost of comments were beyond the scope of the the Internal Revenue Service which the premium(s) may be no more than rulemaking. requires that the ‘‘fair market value’’ of $24.99). In adopting this test, we a premium be disclosed. (The donor considered that a usual ‘‘markup’’ over List of Subjects in 39 CFR Part 111 may not take a charitable deduction for costs is two to one, which was suggested that part of his or her payment). Along in some comments (although other Postal Service. those same lines, one commenter was comments suggest the ratio may be For the reasons discussed above, the concerned about using a cost figure higher). Postal Service hereby adopts the when merchandise which is ‘‘obsolete’’ The comment concerning application following amendments to the Domestic and without current market value is of the test to ‘‘obsolete’’ merchandise Mail Manual, which is incorporated by offered as a premium. Others simply raises an interesting concern. Even if we reference in the Code of Federal cited lower numbers as a more would be inclined to consider this Regulations (see 39 CFR part 111). reasonable way to fairly assess whether concern, it is not clear to us how a the offer of a premium should be standard could easily be administered PART 111Ð[AMENDED] considered advertising. (e.g., how can we determine what is We have considered the comments, ‘‘obsolete?’’). While we do not believe it 1. The authority citation for 39 CFR and determined to adopt both of the appropriate to delay this rulemaking to part 111 continues to read as follows: proposed tests, albeit with give further consideration to this modifications in the original ratios. Up concern, we will consider further Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, to this time, the Postal Service viewed proposals regarding it. 401, 403, 404, 3001–3011, 3201–3219, 3403– these solicitations as two distinct Two commenters were concerned that 3406, 3621, 3626, 5001. transactions (i.e., part donation and part the proposed rule does not make clear 2. In the Domestic Mail Manual, sale). Even though the amount of the that only premium offers which are not donation generally exceeded the amount substantially related to a nonprofit redesignate 5.9, 5.10, 5.11, and 5.12 as of the sale, the premium offer was organization’s qualifying purposes must 5.10, 5.11, 5.12, and 5.13, respectively; considered to be an advertisement for meet the test incorporated in the final add new 5.9 to read as follows: that item. The rulemaking looks to the rule to be eligible for mailing at 5.0 ELIGIBLE AND INELIGIBLE premise, supported by a recent ruling of Nonprofit Standard Mail rates. We MATTER another agency, that the solicitation is a believe that adoption of these single transaction (rather than part suggestions is not needed, and would * * * * * solicitation and part sale); it then looks unnecessarily complicate the 5.9 Contribution and Membership to whether the solicitation or sale is the regulations. The rule is intended to Premiums predominant part of the transaction. define the solicitations which will not That is, it looks to whether the amount be considered advertising. If Announcements for premiums of the sale is greater than the amount of solicitations are advertising, they may received as a result of a contribution or the donation. still be eligible for nonprofit rates if the payment of membership dues are not One means to make this judgment premiums are substantially related to considered advertisements if the would be to compare the fair market the organization’s purposes or contained requested contribution or membership value of the premium(s) with the in material meeting the content dues is more than 4 times the cost of the ‘‘donation’’ (i.e., the difference between requirements of a periodical. premium item(s) offered and more than the amount solicited and the fair market One commenter also suggested that 2 times the represented value in the value). However, the fair market value future adjustments be made possible, mailpiece, if any, of the premium of the premium may not always be clear such as adjustments for inflation. We item(s) offered. or readily ascertained. Accordingly, the will remain open to future suggestions * * * * * Postal Service proposal looked to the to change the standards adopted here. A transmittal letter making these changes represented value, if any, of the Another commenter requested that in the pages of the Domestic Mail Manual premium(s), since this would be the the Postal Service include a provision will be published and will be transmitted to perceived value of the premium(s), as for ‘‘one written warning’’ if a premium subscribers automatically. Notice of issuance well as the cost to the nonprofit, since offer for a product or service is will be published in the Federal Register as there is generally a relationship (i.e., determined to be ineligible for mailing provided by 39 CFR 111.3. markup) between cost and market value. at the nonprofit rates; and, to create a We continue to believe that both of statute of limitations to limit a nonprofit Stanley F. Mires, these standards are appropriate, but will organization’s liability for making Chief Counsel, Legislative. adjust the ratios. With respect to improper mailings. This same [FR Doc. 97–30008 Filed 11–13–97; 8:45 am] represented value, the solicitation will commenter requested ‘‘retroactive’’ BILLING CODE 7710±12±P 61016 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION SUMMARY: The Commission has adopted Paperwork Reduction Act AGENCY a Report and Order and Second Further The Order contains modified Notice of Proposed Rulemaking which information collection requirements. 40 CFR Part 52 addresses rules and policies concerning The Federal Communications [VA±5029a; FRL±5921±4] cable inside wiring. The Second Further Commission, as part of its continuing Notice of Proposed Rulemaking segment effort to reduce paperwork burdens, Approval and Promulgation of Air of this decision may be found elsewhere invites the general public and other Quality Implementation Plans; Virginia; in this issue of the Federal Register. The Federal agencies to take this Approval of VOC RACT Determinations Report and Order (‘‘Order’’) segment opportunity to comment on the for Individual Sources; Correction amends the Commission’s regulations following information collection, as relating to the disposition of cable home AGENCY: Environmental Protection required by the Paperwork Reduction wiring and establishes regulations for Act of 1995, Public Law 104–13. Agency (EPA). the disposition of home run wiring and ACTION: Direct final rule; corrections. Comments should address: (a) whether related issues including the sharing of the proposed collection of information SUMMARY: This document corrects the molding, the demarcation point for is necessary for the proper performance preamble to a direct final rule published multiple dwelling unit buildings of the functions of the Commission, in the Federal Register of October 14, (‘‘MDUs’’), loop-through cable wiring including whether the information shall 1997 regarding the approval of configurations, customer access to cable have practical utility; (b) the accuracy of Reasonably Available Control home wiring before termination of the Commission’s burden estimates; (c) Technology (RACT) for six major service, and signal leakage. This action ways to enhance the quality, utility, and sources of volatile organic compounds was necessary because competition is clarity of the information collected; and (VOC) located in Virginia. The currently being deterred by disputes (d) ways to minimize the burden of the document contains an incorrect annual over control and use of the wires collection of information on the emission rate and a typographical error. necessary to reach each unit in an MDU. respondents, including the use of The intended effect of this action is to DATES: Effective November 28, 1997. automated collection techniques or expand opportunities for new entrants FOR FURTHER INFORMATION CONTACT: other forms of information technology. seeking to compete in distributing video OMB Approval Number: 3060–0692. Kimberly Peck, (215) 566–2165. programming and to broaden SUPPLEMENTARY INFORMATION: In direct Title: Cable Inside Wiring Provisions. consumers’ ability to install and Type of Review: Revision of a final rule FRL–5904–3, beginning on maintain their own wiring. page 53243 in the Federal Register issue currently approved collection. of October 14, 1997, make the following DATES: Amendments in §§ 76.613, Respondents: Individuals; Businesses corrections, in the Preamble section. On 76.802 and 76.804 contain information or other for-profit entities. Number of Respondents: 30,500 page 53243 in the middle column, collection requirements, and will not (20,500 MVPDs and 10,000 MDU change the second full paragraph to the become effective until approved by the owners). following: Office of Management and Budget ‘‘The uncontrolled stack VOC (‘‘OMB’’). Amendments in §§ 76.5, Estimated Time Per Response: 5 emissions from the Bermuda Hundred 76.620, 76.800, 76.805 and 76.806 minutes to 30 minutes. Facility are estimated to be 93.4 tons per become effective December 15, 1997. Total Annual Burden to Respondents: year.’’ However, compliance with amendments 46,114 hours, calculated as follows: On page 53243 in the middle column, in §§ 76.5, 76.620, 76.800, 76.805 and This collection (3060–0692) accounts change the third full paragraph to the 76.806 will not be required until OMB for all information collection following: approval of the information collection requirements that may come into play ‘‘RACT as prescribed in the Consent requirements in §§ 76.613, 76.802 and during the disposition of cable home Agreement, Registration Number 50722, 76.804. When approval is received, the wiring in single dwelling units, as well dated March 26, 1997 is determined to Commission will publish a document as the disposition of home run wiring be no controls as Virginia determined announcing the effective date of the and cable home wiring in multiple that add-on controls were not amendments in §§ 76.613, 76.802 and dwelling units. All multichannel video economically feasible or cost-effective.’’ 76.804, and the date of compliance for programming distributors (‘‘MVPDs’’), both cable and non-cable alike, will be Dated: November 3, 1997. the amendments in §§ 76.5, 76.620, 76.800, 76.805 and 76.806. subject to the disposition rules in Thomas C. Voltaggio, MDUs. Pursuant to the Paperwork Acting Regional Administrator, Region III. Written comments by the public on the modified information collections are Reduction Act, when modifying only [FR Doc. 97–30020 Filed 11–13–97; 8:45 am] due on or before January 13, 1998. portions of an information collection, BILLING CODE 6560±50±P agencies are still obligated to put forth ADDRESSES: A copy of any comments on the entire collection for public the information collections contained comment. FEDERAL COMMUNICATIONS herein should be submitted to Judy This information collection also now COMMISSION Boley, Federal Communications accounts for information collection Commission, Room 234, 1919 M Street, stated in 47 CFR 76.613, where MVPDs 47 CFR Part 76 NW, Washington, DC 20554, or via the causing harmful signal interference may Internet to [email protected]. [CS Docket No. 95±184; MM Docket No. 92± be required by the Commission’s 260; FCC 97±376] FOR FURTHER INFORMATION CONTACT: Rick District Director and/or Resident Agent Chessen, Cable Services Bureau, (202) to prepare and submit a report regarding Inside Wiring 418–7200. For additional information the cause(s) of the interference, AGENCY: Federal Communications concerning the information collections corrective measures planned or taken, Commission. contained herein, contact Judy Boley at and the efficacy of the remedial 202–418–0214, or via the Internet at measures. Through the course of this ACTION: Final rule. [email protected]. rulemaking proceeding, the Commission Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61017 has identified this information will choose to abandon the home wiring hours per MVPD. (20,000 MVPDs × 50% collection requirement as not having because the cost and effort required to × 0.5 hours = 5,000 hours). previously been reported to OMB for remove the wiring generally outweigh 47 CFR 76.804 Disposition of Home approval. We estimate that no more than its value. The burden to disclose the Run Wiring. We estimate the burden for 10 interference reports will be information at the time of termination notification and election requirements submitted annually to the Commission’s will vary depending on the manner of for building-by-building and unit-by- District Director and/or Resident Agent, disclosure, e.g., by telephone, customer unit disposition of home run wiring as each having an average burden of 2 visit or registered mail. Virtually all described below. Note that these hours to prepare. (10 reports × 2 hours voluntary service terminations are done requirements apply only when an = 20 hours). by telephone. The estimated average MVPD owns the home run wiring in an 47 CFR 76.620 applies the time consumed in the process of the MDU and does not (or will not at the Commission’s signal leakage rules to all MVPD’s disclosure and subscriber’s conclusion of the notice period) have a non-cable MVPDs. Our rules require election is 5 minutes (.083 hours). legally enforceable right to remain on that each cable system perform an Estimated annual number of the premises against the wishes of the independent signal leakage test occurrences is 72,000,000 × 12% × 50% entity that owns or controls the common annually, therefore, non-cable MVPDs × 5% = 216,000. (216,000 × .083 hours areas of the MDU or have a legally will now be subject to the same = 17,928 hours). enforceable right to maintain any requirement. We recognize, however, In addition, 47 CFR 76.802 states that particular home run wire dedicated to a particular unit on the premises against that immediate compliance with these if a subscriber in an MDU declines to the MDU owner’s wishes. We use the requirements may present hardships to purchase the wiring, the MDU owner or term ‘‘MDU owner’’ to include whatever existing non-cable MVPDs not alternative provider (where permitted entity owns or controls the common previously subject to such rules. We by the MDU owner) may purchase the areas of an apartment building, will allow a five-year transition period home wiring where reasonable advance condominium or cooperative. For from the effective date of these rules to notice has been provided to the building-by-building disposition of afford non-cable MVPDs time to comply incumbent. According to the Statistical home run wiring, the MDU owner gives with our signal leakage rules other than Abstracts of the United States, 1995 at the incumbent service provider a § 76.613. The transition period will 733 Table No. 1224, over 28 million minimum of 90 days’ written notice that apply only to systems of those non-cable people resided in MDUs with three or its access to the entire building will be MVPDs that have been substantially more units in 1993. We therefore terminated. The incumbent then has 30 built as of January 1, 1998. Considering estimate that there are currently 30 days to elect what it will do with the non-cable MVPD systems that will be million MDU residents and that MDUs home run wiring. Where parties built after January 1, 1998, we estimate house an average of 50 residents, and so negotiate a price for the wiring and are that 500 new entities will be subject to we estimate that there are unable to agree on a price, the signal leakage filing requirements, with approximately 600,000 MDUs in the incumbent service provider must elect an estimated burden of 20 hours per United States. We estimate that 2,000 × among abandonment, removal of the entity. (500 systems 20 hours = 10,000 MDU owners will provide advance wiring, or arbitration for a price hours). 47 CFR 76.802, Disposition of notice to the incumbent that the MDU determination. Also, regarding cable Cable Home Wiring, gives individual owner or alternative provider (where home wiring, when the MDU owner video service subscribers in single unit permitted by the MDU owner) will notifies the incumbent service provider dwellings and MDUs the opportunity to purchase the home wiring where a that its access to the building will be purchase their cable home wiring at terminating individual subscriber terminated, the incumbent provider replacement cost upon voluntary declines. The estimated average time for must, within 30 days of the initial termination of service. In calculating MDU owners to provide such notice is notice and in accordance with our home hour burdens for notifying individual estimated to be 15 minutes (.25 hours). wiring rules, (1) offer to sell to the MDU subscribers of their purchase rights, we The estimated average time consumed owner any home wiring within the make the following assumptions: There in the process of the MVPD’s individual dwelling units which the are approximately 20,000 MVPDs subsequent disclosure and the MDU incumbent provider owns and intends serving approximately 72 million owner or alternative provider’s election to remove, and (2) provide the MDU subscribers in the United States. The is 5 minutes (.083 hours). Estimated owner with the total per-foot average rate of churn (subscriber annual time consumed is 2,000 replacement cost of such home wiring. termination) for all MVPDs is estimated notifications × .333 hours = 666 hours. The MDU owner must then notify the to be 1% per month, or 12% per year. 47 CFR 76.802 also states that, to inform incumbent provider as to whether the MVPDs own the home wiring in 50% of subscribers of per-foot replacement MDU owner or an alternative provider the occurrences of voluntary subscriber costs, MVPDs may develop replacement intends to purchase the home wiring not termination and subscribers or property cost schedules based on readily later than 30 days before the owners already have gained ownership available information; if the MVPD incumbent’s access to the building will of the wiring in the other 50% of chooses to develop such schedules, it be terminated. occurrences (e.g., where the MVPD has must place them in a public file For unit-by-unit disposition of home charged the subscriber for the wiring available for public inspection during run wiring, an MDU owner must upon installation, has treated the wiring regular business hours. We estimate that provide at least 60 days’ written notice as belonging to the subscriber for tax 50% of MVPDs will develop such cost to the incumbent MVPD that it intends purposes, or where state and/or local schedules to place in their public files. to permit multiple MVPDs to compete law treats cable home wiring as a Virtually all individual subscribers for the right to use the individual home fixture). Where MVPDs own the wiring, terminate service via telephone, and few run wires dedicated to each unit. The we estimate that they intend to actually subscribers are anticipated to review incumbent service provider then has 30 remove the wiring 5% of the time, thus cost schedules on public file. The days to provide the MDU owner with a initiating the disclosure requirement. annual recordkeeping burden for these written election as to whether, for all of We believe in most cases that MVPDs cost schedules is estimated to be 0.5 the incumbent’s home run wires 61018 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations dedicated to individual subscribers who sell the wiring but the parties are unable Home Wiring Further Notice’’), and the may later choose the alternative to agree on a price, therefore Further Notice of Proposed Rulemaking provider’s service, it will remove the necessitating a second election. We in CS Docket No. 95–184 and MM wiring, abandon the wiring, or sell the assume all notifications and elections Docket No. 92–260, 62 FR 46453 wiring to the MDU owner. In other (except when an individual subscriber (September 3, 1997) (‘‘Inside Wiring words, the incumbent service provider is terminating service) will be in writing Further Notice’’) regarding potential will be required to make a single and take an average burden of 30 changes in our telephone and cable election for how it will handle the minutes (0.5 hours) to prepare. (25,000 inside wiring rules in light of the disposition of individual home run notifications and elections × 0.5 hours = evolving telecommunications wires whenever a subscriber wishes to 12,500 hours). marketplace. Total Annual Cost to Respondents: switch service providers; that election II. Disposition of Home Run Wiring will then be implemented each time an $37,510, estimated as follows: Under the individual subscriber switches service annual operation and maintenance costs 1. We believe that one of the primary providers. Where parties negotiate a category, we estimate that stationery competitive problems in MDUs is the price for the wiring and are unable to and postage costs for interference difficulty for some service providers to agree on a price, the incumbent service reports submitted to the Commission obtain access to the property for the provider must elect among pursuant to § 76.613 to be $1 per report. purpose of running additional home run abandonment, removal of the wiring, or (10 reports × $1 = $10). We estimate wires to subscribers’ units. Home run arbitration for a price determination. stationery and postage costs for signal wiring is defined as the wiring from the The MDU owner also must provide leakage filings to be $1 per filing. (500 point at which it becomes dedicated to reasonable advance notice to the filings × $1 = $500). We estimate that an individual unit in an MDU to the incumbent provider that it will 50% of the 20,000 MVPDs will annually cable demarcation point. The record purchase, or that it will allow an develop cost schedules. We estimate indicates that MDU property owners alternative provider to purchase, the recordkeeping expenses for these often object to the installation of cable home wiring when a terminating schedules to be $1 per MVPD. (20,000 multiple home run wires in the individual subscriber declines. If the × 50% × $1 = $10,000). We estimate hallways of their properties, for reasons alternative provider is permitted to stationery and postage costs for the including aesthetics, space limitations, purchase the wiring, it will be required various disposition notifications and the avoidance of disruption and to make a similar election during the elections to be $1 per occurrence. inconvenience, and the potential for property damage. Incumbents often initial 30-day notice period for each (27,000 notifications and elections × $1 refuse to sell the home run wiring to the subscriber who switches back from the = $27,000). There are no estimated new provider or to cooperate in any alternative provider to the incumbent capital and start-up costs. transition. The result, regardless of the MVPD. Needs and Uses: The various cable operators’ motives, is to chill the According to the Statistical Abstracts notification and election requirements in this collection (3060–0692) are set competitive environment. of the United States, 1995 at 733 Table 2. In the Order, we establish No. 1224, over 28 million people forth in order to promote competition and consumer choice by minimizing procedures for building-by-building resided in MDUs with three or more disposition of the home run wiring units in 1993. We therefore estimate that any potential disruption in service to a subscriber switching video providers. (where the MDU owner decides to there are currently 30 million MDU convert the entire building to a new SUPPLEMENTARY INFORMATION: residents and that MDUs house an The video service provider) and for unit-by- average of 50 residents, and so we following is a synopsis of the unit disposition of the home run wiring estimate that there are approximately Commission’s Report and Order in CS (where an MDU owner is willing to 600,000 MDUs in the United States. In Docket No. 95–184 and MM Docket No. permit two or more video service many instances, incumbent service 92–260, FCC No. 97–376, adopted providers to compete for subscribers on providers may no longer own the home October 9, 1997 and released October a unit-by-unit basis) where the MDU run wiring or may continue to have a 17, 1997. The full text of this decision owner wants the alternative provider to legally enforceable right to remain on is available for inspection and copying be able to use the existing home run the premises. Also, MDU owners may during normal business hours in the wiring. We believe that our procedural forego the notice and election processes FCC Reference Center (Room 239), 1919 mechanisms will not create or destroy for various other reasons, e.g., they have M Street, NW, Washington, DC 20554, any property rights, but will promote no interest in purchasing the home run and may be purchased from the competition and consumer choice by or cable home wiring. We estimate that Commission’s copy contractor, bringing order and certainty to the there will be approximately 12,500 International Transcription Services, disposition of the MDU home run notices and 12,500 elections made on an Inc. (202) 857–3800 (phone), (202) 857– wiring upon termination of service. We annual basis. The number of notices 3805 (fax), 1231 20th Street, NW, clarify that riser cable is not covered by accounts for the occasions when the Washington, DC 20036. the following procedures. MDU owner simultaneously notifies the Synopsis incumbent provider that: (1) It is A. Building-by-Building Procedures invoking the home run wiring I. Introduction 3. We adopt the following procedures disposition procedures, and (2) whether The Order addresses the issues raised for building-by-building disposition of the MDU owner or alternative provider in the Notice of Proposed Rulemaking in home run wiring. Where the incumbent intends to purchase the cable home CS Docket No. 95–184, 61 FR 3657 service provider owns the home run wiring. It also accounts for those (February 1, 1996) (‘‘Inside Wiring wiring in an MDU and does not (or will occasions when the MDU owner makes Notice’’), the Order On Reconsideration not at the conclusion of the notice a separate notification regarding the and Further Notice of Proposed period) have a legally enforceable right purchase of cable home wiring. The Rulemaking in MM Docket No. 92–260, to remain on the premises, and the MDU number of elections accounts for 61 FR 6131 (February 16, 1996) and 61 owner wants to be able to use the instances when the incumbent elects to FR 6210 (February 16, 1996) (‘‘Cable existing home run wiring for service Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61019 from another provider, the MDU owner interfere with the ability of an notify the MDU owner at the time of this may give the incumbent service alternative MVPD to use the home run election if and when it intends to provider a minimum of 90 days’ written wiring. terminate service before the end of the notice that the provider’s access to the 5. Where the incumbent provider 90-day notice period. In addition to this entire building will be terminated. By elects to sell the home run wiring, we and other notice requirements, we will adopting this procedural mechanism, will allow the parties to negotiate the adopt a general rule requiring the we do not intend to affect any price of the wiring. We believe that parties to cooperate to avoid service contractual rights the parties may have market forces will provide adequate disruption to subscribers to the extent to terminate service in a different incentives for the parties to reach a possible. One of our overriding goals in manner. We believe that it is reasonable reasonable price, particularly in these this proceeding is to ensure as seamless to require, and thus our rules will circumstances where the incumbent has a transition as possible. Our rules are require, that MDU owners that wish to no legally enforceable right to remain on premised on the good faith cooperation avail themselves of these procedures the premises. The parties will have 30 of all parties to protect against such notify the incumbent providers of days from the date of the incumbent’s disruption. We expect service providers termination of service for the entire election to negotiate a price for the to cooperate and to make all necessary building in writing. The incumbent home run wiring. The parties may also efforts to minimize any service provider will have 30 days to notify the negotiate to purchase additional wiring disruption when a transition is MDU owner in writing of its election to (e.g., riser cables) at their option. As undertaken. We believe that the current do one of the following for all the home stated above, our procedures do not notification requirements, in run wiring inside the MDU: (1) to apply to riser cable in that the conjunction with a general rule remove the wiring and restore the MDU incumbent provider is not required to requiring a seamless transition, are consistent with state law within 30 days sell, remove or abandon its riser cable, sufficient to protect subscribers from of the end of the 90-day notice period but it does have the option of doing so lengthy service disruptions when or within 30 days of actual service if all parties agree. If the parties are switching providers. We therefore will termination, whichever occurs first; (2) unable to agree on a price, the not require incumbents to continue to abandon and not disable the wiring incumbent will then be required to service until the new provider is at the end of the 90-day notice period; elect: (1) to abandon without disabling connected. or (3) to sell the wiring to the MDU the wiring; (2) to remove the wiring and 8. If the parties are unable to agree on owner. If the MDU owner refuses to restore the MDU consistent with state a price and the incumbent elects to purchase the home run wiring, the MDU law; or (3) to submit the price submit to binding arbitration, the parties owner may permit the alternative video determination to binding arbitration by will have seven days to agree on an service provider to purchase it. If the an independent expert. If the incumbent independent expert or to each designate incumbent provider elects to remove or fails to comply with any of the an expert who will pick a third expert abandon the wiring, and it intends to deadlines established herein, it will be within an additional seven days. The terminate service before the end of the deemed to have elected to abandon its independent expert chosen will be 90-day notice period, the incumbent home run wiring at the end of the 90- required to assess a reasonable price for provider will be required to notify the day notice period. If the incumbent the home run wiring by the end of the MDU owner at the time of this election service provider elects to abandon its 90-day notice period. If the incumbent wiring at this point, the abandonment elects to submit the matter to binding of the date on which it intends to will become effective at the end of the arbitration and the MDU owner (or, in terminate service. 90-day notice period or upon service some cases, the alternative provider) 4. If the incumbent elects to abandon termination, whichever occurs first. refuses to participate, the incumbent the wiring, its ownership will be Similarly, if the incumbent elects at this will have no further obligations under determined as a matter of state law. point to remove its wiring and restore our home run wiring disposition Passive devices such as splitters, as in the building consistent with state law, it procedures. the cable home wiring context, will be will have to do so within 30 days of the B. Unit-by-Unit Procedures considered part of the home run wiring end of the 90-day notice period or for this purpose. While the operator may within 30 days of actual service 9. We adopt the following procedures remove its amplifiers or other active termination, whichever occurs first. for unit-by-unit disposition of home run devices used in the wiring, it may do so 6. At this time we decline to establish wiring. Where the incumbent video only if an equivalent replacement can a penalty for an incumbent provider that service provider owns the home run easily be reattached. Our decision in fails to remove wiring after electing to wiring in an MDU and does not (or will this proceeding assumes adherence to do so, or, for that matter, for any other not at the conclusion of the notice standards of good faith that are party that violates our cable inside period) have a legally enforceable right necessary elements of an orderly wiring rules. We expect all parties to maintain its home run wiring on the transition. In addition, we will require participating in the procedures for the premises, the MDU owner may permit the party removing any active elements disposition of home run wiring to multiple service providers to compete to comply with the notice requirements cooperate and act in full compliance head-to-head in the building for the and other rules regarding the removal of with our rules and the policies right to use the individual home run home run wiring. Although we will not underlying them. Similarly, at this time wires dedicated to each unit. Where an require that incumbents must transfer or we will not require the incumbent to MDU owner wishes to permit such relinquish all rights in molding or post a performance bond prior to head-to-head competition, the MDU conduit when they sell, remove or removal. There is not sufficient owner must provide at least 60 days’ abandon their wiring, we will prohibit evidence to conclude that a significant written notice to the incumbent incumbent providers from using any problem will exist, or that MDU owners provider of the owner’s intention to ownership interests they may have in are unable to protect their interests invoke the following procedure. The property located on or near the home pursuant to contract or state law. incumbent service provider will then run wiring, such as molding or conduit, 7. If the incumbent chooses to have 30 days to provide the MDU owner to prevent, impede or in any way abandon or remove its wiring, it must with a written election as to whether, 61020 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations for all of the incumbent’s home run unauthorized change of a consumer’s 14. After completion of this initial wires dedicated to individual chosen long distance service. We use process, a provider’s election will be subscribers who may later choose the the term more generically here to mean carried out if and when the provider is alternative provider’s service, it will: (1) an unauthorized change in any notified either orally or in writing that remove the wiring and restore the MDU communications service.) a subscriber wishes to terminate service consistent with state law; (2) abandon 11. As with the proposed building-by- and that an alternative service provider the wiring without disabling it (as in the building procedures, we will permit the intends to use the existing home run building-by-building situation, if the parties to negotiate for the sale of the wire to provide service to that particular incumbent elects to abandon the wiring, home run wiring. If one or both of the subscriber. At that point, a provider that its ownership will be determined by video service providers elects to has elected to remove its home run state law, and passive devices will be negotiate for the sale of the home run wiring will have seven days to do so considered part of the home run wiring); wiring it may own, the parties will have and to restore the building consistent or (3) sell the wiring to the MDU owner 30 days from the date of such election with state law. If the subscriber has (as in the building-by-building situation, to reach an agreement. During this 30- requested service termination more than the MDU owner may permit the day negotiation period, the incumbent, seven days in the future, the seven-day alternative provider to purchase the the MDU owner and/or the new removal period will begin on the date of home run wiring if the MDU owner provider may also work out actual service termination (and, in any refuses to purchase it). In other words, arrangements for an up-front lump sum event, shall end no later than seven days the incumbent service provider will be payment in lieu of a unit-by-unit after the requested date of termination). required to make a single election for payment. An up-front lump sum 15. If the current service provider has how it will handle the disposition of payment would permit either service elected to abandon or sell the wiring, individual home run wires whenever a provider to use the home run wiring to the abandonment or sale will become subscriber wishes to switch video provide service to a subscriber without effective upon actual service service providers; that election will then the administrative burden of paying termination or upon the requested date be implemented each time an individual separately for each home run wire every of termination, whichever occurs first. If subscriber switches service providers. time a subscriber changes providers. the incumbent provider intends to 12. If the parties cannot agree on a As in the context of building-by- terminate service prior to the end of the price, the provider that has elected to building dispositions of home run seven-day period, the incumbent will be sell the wiring will be required to elect: wiring, incumbent providers will be required to inform the subscriber or the (1) to abandon without disabling the prohibited from using any ownership subscriber’s agent (whichever is wiring; (2) to remove the wiring and interests they may have in property on notifying the incumbent that the restore the MDU consistent with state or near the home run wiring, such as law; or (3) to submit the price subscriber wishes to terminate service) molding or conduit, to prevent, impede, determination to binding arbitration by at the time of the request for service or in any way interfere with the ability an independent expert. Again, if the termination of the date on which service of an alternative MVPD to use the home MDU owner (or, in some cases, the will be terminated. In addition, the run wiring. If the MDU owner permits alternative provider) refuses to submit incumbent provider must disconnect the alternative service provider to the issue to arbitration, the incumbent’s the home run wiring from its lockbox purchase the home run wiring, the obligations under our procedures will and leave it accessible for the new alternative service provider will be cease. If the incumbent fails to comply provider within 24 hours of actual required to make a similar election with any of the deadlines established service termination. within this same 30-day period for any herein, the home run wiring will be 16. We base the above procedures on home run wiring that the alternative considered abandoned and the the assumption that the alternative provider subsequently owns (i.e., after incumbent may not prevent the service provider will have an incentive the alternative provider has purchased alternative provider from using the to ensure that the incumbent is notified the wiring from the current incumbent home run wiring immediately to that the alternative service provider provider) and that is solely dedicated to provide service. intends to use the existing home run a subscriber who switches back from the 13. If the incumbent elects to submit wire to provide service. If, however, the alternative provider to the incumbent. to binding arbitration, the parties will subscriber’s service is simply 10. We continue to believe that it have seven days to agree on an terminated without any indication that would streamline and expedite the independent expert or each designate an a competing service provider wishes to process of changing service providers if expert who will pick a third expert use the home run wiring, the incumbent alternative service providers and MDU within an additional seven days. The service provider will not be required to owners were permitted to act as independent expert chosen would be carry out its election to sell, remove or subscribers’ agents in providing notice required to assess the price for the abandon the home run wiring. This of a subscriber’s desire to change wiring within 14 days. We realize that might occur, for instance, where an services. However, consistent with our the expert’s price determination may MDU tenant is moving out of the intention not to ‘‘create or destroy any not be issued for up to 28 days after the building. In such cases, we do not property rights’’ by these procedures, 60-day notice period has expired. If believe that it would be appropriate to we will not create any new right of subscribers wish to switch service require the incumbent to sell, remove or MDU owners and alternative providers providers during this period, the abandon the home run wiring when it to act on behalf of subscribers in procedures set forth below should be might have every reasonable expectation terminating service. Nor will we restrict followed, subject to the price that the next tenant will request its the rights of such MDU owners and established by the arbitrator. If the MDU service. However, the incumbent alternative providers under state law. owner (or, in some cases, the alternative provider will be required to carry out its We therefore decline at this time to provider) refuses to participate, the election with regard to the home run adopt specific procedures to guard incumbent’s obligations under the wiring if and when it receives notice against unauthorized changes in service, Commission’s home run wiring from a subsequent tenant (either directly i.e., ‘‘slamming.’’ (‘‘Slamming’’ is the procedures will cease. or through an alternative provider) that Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61021 the tenant wishes to use the home run situation to protect their interests. Even period following the initial notice. The wiring to receive a competing service. under the home run disposition incumbent will still be required to make 17. Where the incumbent receives a procedures adopted above, we recognize its election to sell, remove or abandon request for service termination but does that some MDU owners may not wish to the wiring by the end of the initial 30- not receive notice that an alternative exercise ownership over the inside day period in the absence of such a provider wishes to use the home run wiring. We believe that MDU owners ruling or injunction. In light of this rule, wiring, the incumbent will still be should have the same option at the time we decline to shorten the initial election required to follow the procedures set of installation. period. We also decline to stay our forth in our cable home wiring rules— 20. We do believe, however, that all procedures until all judicial procedures e.g., to offer to sell to the subscriber any parties involved would benefit from are terminated, including all appeals. cable home wiring that the incumbent additional certainty regarding We have not received evidence provider otherwise intends to remove. ownership of the home run wiring upon sufficient to persuade us that state The required notice in the unit-by-unit termination of a service contract. For courts will not respond expeditiously. context may be effected in two stages any contracts between MVPDs and MDU Significantly, the record indicates state (i.e., the subscriber may call to owners entered into after the effective courts’ ability to protect incumbents’ terminate service and the alternative date of our rules, we will require the rights. The record continues to support provider may separately notify the MVPD to include a provision describing our judgment that an incumbent’s incumbent that it wishes to use the the disposition of the home run wiring failure to obtain a state court injunction home run wiring). In order for the home upon the contract’s termination. We justifies a presumption that the run wiring and the home wiring to be believe that such a rule will provide incumbent no longer has an enforceable disposed of in a coordinated manner, certainty to the parties and permit them legal right to remain on the premises. we believe that our cable home wiring to address the disposition of home run We do not believe that this presumption rules must apply upon any termination wiring in light of their circumstances. interferes with the incumbent’s state of service. In addition, we believe that Where the parties’ contract clearly and law rights. A court applying state law subscribers should have the right to expressly addresses the disposition of will continue to be the ultimate arbiter purchase their home wiring to protect the home run wiring, our procedures of whether the incumbent has a legally themselves from unnecessary disruption will not apply. We also reiterate that the enforceable right to remain on the associated with removal of home wiring, parties may rely upon any existing premises, and possesses the ability to regardless of whether they intend to contractual rights upon termination, in take any necessary and appropriate subscribe to an alternative service. addition to the procedures we are steps to make the parties whole under adopting. C. Ownership of Home Run Wiring state law. Our presumption simply means that if the incumbent cannot 18. In both the building-by-building D. Application of Procedural Framework obtain an injunction to maintain its and unit-by-unit approaches, the MDU home run wiring on the premises, it is owner will have the initial option to 21. As noted above, the procedural appropriate to permit the MDU owner to negotiate for ownership and control of mechanisms we are adopting will apply invoke our procedures pending any the home run wiring because the only where the incumbent provider no further litigation. property owner is responsible for the longer has an enforceable legal right to 23. We will adopt one exception to common areas of a building, including maintain its home run wiring on the our presumption that our procedures safety and security concerns, premises against the will of the MDU will apply in the absence of a state court compliance with building and electrical owner. These procedures will not apply ruling or injunction obtained within 45 codes, maintaining the aesthetics of the where the incumbent provider has a days of the initial notice. We will not building and balancing the concerns of contractual, statutory or common law require an incumbent provider to obtain all of the residents. Moreover, vesting right to maintain its home run wiring on such a ruling or injunction where a ownership of the home run wiring in the property. We also reiterate that we state’s highest court has found that, the MDU owner, as opposed to the are not preempting any rights the under its state mandatory access statute, alternative service provider, will reduce incumbent provider may have under the incumbent always has an future transaction costs since the above state law. In the building-by-building enforceable right to maintain its home procedures will not need to be repeated context, the procedures will not apply run wiring on the premises. We believe if service is subsequently switched where the incumbent provider has a that to require the incumbent to initiate again. Nevertheless, we recognize that legally enforceable right to maintain its court proceedings in this situation is some MDU owners may not want to home run wiring on the premises, even wasteful and unnecessary. In such own the home run wiring in their against the MDU owner’s wishes, and to cases, we believe that the burden should buildings; in such cases, the MDU prevent any third party from using the shift to the new provider to obtain a owner may permit the alternative wiring. In the unit-by-unit context, the judicial determination to the contrary. service provider to purchase the wiring. procedures will not apply where the 24. We decline, however, to provide 19. We will not require video service incumbent provider has a legally that our procedures do not apply in providers to transfer ownership of cable enforceable right to keep a particular states that have enacted mandatory inside wiring to MDU owners upon home run wire dedicated to a particular access statutes. Several parties take installation. At this time, we believe this unit (not including the wiring on the issue with our statement that where the issue is best left to marketplace subscriber’s side of the demarcation incumbent provider’s mandatory right negotiations between the service point) on the premises, even against the of access is dependent upon a provider and the MDU owner. Some property owner’s wishes. subscriber’s request for service, the MDU owners may choose to bargain for 22. We will adopt a presumption that provider may no longer have a legally ownership of the inside wiring, while the building-by-building and unit-by- enforceable right to maintain that others may prefer to let the service unit procedural mechanisms will apply subscriber’s home run wiring on the provider maintain ownership. We are unless and until the incumbent obtains premises against the MDU owner’s not convinced that MDU owners have a court ruling or an injunction enjoining wishes once the subscriber no longer insufficient bargaining power in this its displacement during the 45-day requests service. We clarify that we did 61022 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations not intend to and do not now express wires. The alternative provider will, issue in the Second Further Notice of any opinion on the merits of this issue. however, be required to pay any and all Proposed Rulemaking, which is The enforceability of a state mandatory installation costs, including the costs of summarized elsewhere in the Federal access statute is an issue for the state restoring the property to its prior Register. courts to decide under their particular condition and the costs of any damage A. Disposition of Home Wiring When statutes. We are unwilling to conclude to the incumbent’s wiring or other Service is Terminated for an Entire that state mandatory access statutes property. MDU always grant incumbents the right to 27. Under the rule we will adopt, maintain their home run wiring in an where the MDU owner does not agree 29. We conclude that, if the MDU MDU over the MDU owner’s objection. that there is adequate space in the owner has the legal right, either by law Similarly, we express no opinion on molding for the additional wiring, and or by contract, to terminate the whether state mandatory access statutes the MDU owner is willing to permit the subscriber’s cable service, the owner permit an incumbent MVPD to block installation of larger molding that could terminating service for the entire moldings or conduits with unused contain both the incumbent’s and the building is effectively voluntarily wiring. Contrary to the arguments of alternative MVPD’s wiring, the MDU terminating service on the subscriber’s some cable operators, this is not an owner (with or without the assistance of behalf, and our home wiring rules issue of the right to install wiring. the incumbent and/or the alternative would be triggered. We conclude that Rather, the issue is whether the provider) shall be permitted to remove providing the cable operator a single incumbent has a legally enforceable the existing molding (and return the point of contact (i.e., the MDU owner) right to maintain its home run wiring on molding to the incumbent, if will further the statutory purposes of the premises over the objection of the appropriate) and replace it with the minimizing disruption and facilitating MDU owner. Accordingly, our larger molding at the alternative the transfer of service to a competing procedures will apply in mandatory MVPD’s expense. Again, the alternative video service provider. Because we access states to the extent state law does MVPD would be required to pay any believe that it would be impractical and not permit the incumbent to maintain and all installation costs, including the inefficient for the incumbent provider to its home run wiring (in the case of a costs of restoring the property to its deal with each individual subscriber building-by-building disposition) or a prior condition and the costs of any regarding the disposition of his or her particular home run wire to a particular damage to the incumbent’s wiring or cable home wiring when the entire subscriber (in the case of a unit-by-unit other property. This rule will not apply MDU is switching providers, we will disposition) against the will of the MDU if the incumbent has contracted for the deem the MDU owner to be acting as the owner. right to maintain its molding on the terminating ‘‘subscriber’’ for purposes of 25. The above procedural mechanisms MDU owner’s property without the disposition of the cable home wiring will apply regardless of the identity of alteration by the MDU owner. Absent within the individual dwelling unit the incumbent video service provider such a contractual provision, we believe where the cable home wiring is not involved. While initially this incumbent that the incumbent has no right to already owned by a resident. We clarify, would commonly be a cable operator, it prevent the MDU owner from altering however, that we are not changing our could also be a SMATV provider, an the molding in its hallways and other definition of subscriber to include MDU MMDS provider, a DBS provider or areas of its property. owners. We believe that, when as a others. We believe that this will ensure matter of law or contract, the MDU IV. Disposition of Cable Home Wiring competitive parity among MVPDs and owner has the right to terminate service, ensure that MDU owners are able to 28. The procedural framework the MDU owner is effectively benefit from these procedures regardless discussed above addresses the terminating service on behalf of the of the MVPD that initially wired their disposition of MDU home run wiring. subscriber. Similarly, with regard to buildings. Here, we set forth specific rules on how exclusive bulk service contracts, we to address certain issues regarding the conclude that it is logical for the III. Sharing of Molding disposition of MDU cable home wiring landlord to be deemed the subscriber, 26. We will permit an alternative that were not addressed in our prior and thus for the landlord to have the MVPD to install its wiring within an home wiring order. Cable home wiring right to purchase the home wiring as incumbent’s existing molding, even over is defined as the internal wiring provided in our general rules. the incumbent provider’s objection, contained within the premises of a 30. For those MDU owners proceeding where the MDU owner agrees that there subscriber which begins at the under our home run wiring disposition is adequate space in the molding and demarcation point, not including any procedures, we will adopt the following the MDU owner gives its affirmative active elements such as amplifiers, framework in order to ensure the consent. We believe that such a rule will converter or decoder boxes, or remote orderly disposition of the home wiring. promote head-to-head competition control units. As in the context of home When an incumbent provider is notified among MVPDs by overcoming the run wiring, our MDU home wiring rules under our home run wiring disposition resistance of MDU owners to the will apply regardless of the identity of procedures that the incumbent installation of redundant molding. At the incumbent video service provider provider’s access to the entire building this time we will not require the sharing involved. While initially this incumbent will be terminated and that the MDU of space within conduits. However, we will commonly be a cable operator, it owner seeks to use the home run wiring will not apply this rule where the could also be a SMATV provider, an for another service, the incumbent incumbent has an exclusive contractual MMDS provider, a DBS provider or provider must, within 30 days: (1) offer right to occupy the molding. Since we others. We therefore will apply all of to sell to the MDU owner any home do not believe that the incumbent our cable home wiring rules for wiring within the individual dwelling ordinarily will have a property interest multiple-unit installations to all units which the incumbent provider in the vacant air space inside the MVPDs. We also believe that it may be owns and intends to remove; and (2) hallway molding, we will not require beneficial to apply our cable home provide the MDU owner with the total the alternative MVPD to compensate the wiring rules for single-unit installations per-foot replacement cost of such home incumbent for the placement of its to all MVPDs. We seek comment on this wiring. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61023

31. As with the home run wiring, if consumer choice. As with the home run subscriber declines, the operator must an MDU owner declines to purchase the wiring in an MDU, if the premises remove the wiring within seven days or cable home wiring not already owned owner declines to purchase the cable make no further effort to remove it or by a resident, the MDU owner may home wiring, the owner may permit the restrict its use. We expressly state that permit the alternative service provider alternative service provider to purchase the cable operator must be given to purchase the wiring upon service it. reasonable access to the individual termination under our rules. We will 33. Where an individual MDU premises during the removal period. We require that the MDU owner decide resident terminates service, the MDU believe that the foregoing policy will whether it or the alternative provider owner must provide reasonable advance promote the objectives of section 624(i) will purchase the cable home wiring notice to the incumbent provider if it by minimizing disruption and and so notify the incumbent provider no wishes to purchase the home wiring (or facilitating subsequent subscribers’ later than 30 days before the termination that the alternative provider will ability to use their home wiring to of access to the building will become purchase it) if and when an individual connect to the video service provider of effective. If the MDU owner and the subscriber declines. The MDU owner their choice. alternative service provider decline to will be required to inform the 36. The disposition of the cable home purchase the home wiring, the incumbent provider one time for the wiring under these circumstances will incumbent provider will not be entire building. If the MDU owner fails not affect our rules for the unit-by-unit permitted to remove the home wiring to provide the incumbent with such disposition of the MDU home run until the date of actual service notice, the incumbent will be under no wiring. As described above, our rules termination, i.e., likely 90 days after the obligation to sell the home wiring to the regarding the disposition of the home building owner notified the incumbent MDU owner or the alternative provider run wiring are not triggered where a that its access to the entire building will when an individual subscriber subscriber terminates service and be terminated. We will modify our terminates and declines to purchase the vacates the premises unless and until a current home wiring rules to allow the wiring. Where an MDU owner does not new or subsequent subscriber (or his or or cannot invoke our unit-by-unit home incumbent provider 30 days after her agent) notifies the incumbent run wiring disposition procedures (e.g., service termination, rather than the service provider that the subscriber if it elects to have two-wire competition current seven days, to remove all of the wishes to receive service from an to each unit), we will require the MDU cable home wiring for the entire alternative service provider lawfully owner to provide the incumbent building if the MDU owner has serving the premises. terminated service for the entire provider reasonable advance notice if building and has declined to purchase the MDU owner or the alternative V. MDU Demarcation Point the home wiring. We believe this is provider intends to purchase the home 37. We believe that it is not necessary appropriate given the amount of home wiring if and when a subscriber to establish a common cable and wiring that may need to be removed declines. telephone demarcation point at this from an entire building. Under these 34. In addition, where an individual time. At least as far as inside wiring is circumstances, if the incumbent subscriber is terminating service, we provider fails to remove the home will change the time in which an concerned, telephony generally appears wiring within 30 days of actual service incumbent provider must remove the to continue to be delivered over twisted termination, it cannot make any home wiring or make no further effort pair wiring and multichannel video subsequent attempt to remove the to use it or restrict its use in single unit programming generally appears to be wiring or restrict its use. installations from seven business days delivered over coaxial cable. Based on to seven calendar days after the the record in this proceeding, it appears B. Disposition of Home Wiring When individual subscriber terminates that cable operators and other entities Service Is Terminated by an Individual service. We believe that this minor planning to offer telephone service Subscriber change is sufficient time for removal of generally will do so by connecting to the 32. We will continue to apply our a single subscriber’s cable home wiring, existing telephone inside wiring rules permitting individual terminating and will avoid customer confusion by network. The record before us indicates subscribers (or their agents) to purchase having the time permitted for the that this distinction is likely to continue the cable home wiring up to a point at provider to remove the home wiring for at least the near future. If and when or about 12 inches outside their within the individual unit run circumstances change, we will revisit individual units. We continue to believe concurrently with the time permitted for this issue with the goal of creating a that this is consistent with the purposes the provider to remove, sell or abandon single set of inside wiring rules. We of section 624(i) to promote consumer the home run wiring under our note that, as a practical matter, the choice and competition by permitting procedural framework. telephone demarcation point in new subscribers to avoid the disruption of single family home installations may be having their home wiring removed upon C. Effect of Subscriber Vacating the located at a point outside of where the voluntary termination and to Premises on the Application of Cable wiring enters the home, near the cable subsequently utilize that wiring for an Home Wiring Rules demarcation point. Similarly, the points alternative service. If the subscriber 35. We conclude that our cable home at which the telephone and cable inside declines to purchase its home wiring, wiring rules should apply even when wiring become devoted to individual we believe that the premises owner the subscriber terminates cable service, multiple dwelling units may be at should be permitted to purchase the elects not to purchase the wiring and similar locations (e.g., in garden-style cable home wiring within the vacates the premises within the seven- apartment buildings, such points may individual’s premises based on the per- day time period the operator has to both be located in the basement of the foot replacement cost. This approach remove the home wiring. A cable individual buildings). While such will preserve the current subscriber’s operator that owns the wiring and examples may create a de facto rights, and still allow the premises intends to remove it must offer to sell convergence in many cases, so long as owner to act on behalf of future tenants, the cable home wiring to the subscriber the cable and telephone inside wiring thus promoting competition and upon voluntary termination, and if the networks remain distinct, we do not 61024 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations believe that the Commission need may include both wiring inside the Allowing the MDU owner to control require such a result. individual dwelling unit and wiring in loop-through home wiring gives the 38. At this time, we will not modify common areas which extends outside subscriber an opportunity for increased the cable demarcation point in MDUs. the individual dwelling unit to the riser choice and enhanced service, and We will, however, adopt our tentative or feeder cable. We now believe that, for furthers section 624(i)’s statutory conclusion that where the cable purposes of our cable inside wiring purpose of facilitating the transfer to an demarcation point is ‘‘physically rules, all loop-through wiring should alternate service provider with minimal inaccessible’’ to an alternative MVPD, not be treated the same. We therefore disruption to the subscriber. We the demarcation point should be moved conclude that, when the property owner previously excluded loop-through to the point at which it first becomes or the entity that owns or controls the wiring from our cable home wiring rules physically accessible. We clarify that common areas elects to switch to a new because we did not believe it was this movement should be the closest service provider, our cable home wiring appropriate to give the initial individual point at which the wiring becomes rules will apply to that portion of the subscriber in the loop control over the physically accessible that does not loop-through wiring that is inside the cable service of all remaining require access to the subscriber’s unit. individual dwelling unit (up to the subscribers on the loop. Under the Moving the demarcation point into the demarcation point(s) discussed below). procedures we adopt today, that unit in such situations would add For example, when an MDU owner situation cannot occur. significantly to the disruption and wishes to terminate service for a 44. We clarify that our rules will inconvenience of switching service building with loop-through wiring and provide the MDU owner, not the providers, contrary to the intent of invokes our building-by-building alternative provider, with the first section 624(i). procedures for disposition of the home opportunity to purchase the loop- 39. In addition, we will adopt a run wiring, those procedures will through wiring. Once the MDU owner definition of ‘‘physically inaccessible’’ govern the disposition of the wiring that owns and controls the wiring, the cable which asks whether accessing the is dedicated to each loop other than the operator will be on equal footing under demarcation point (1) would require cable home wiring within each unit. our rules with other video service significant modification or damage of Consistent with our building-by- providers with regard to subsequently preexisting structural elements, and (2) building procedures, the MDU owner providing service to the tenants. Only if would add significantly to the physical will be permitted to purchase the loop- the MDU owner declines to purchase difficulty and/or cost of accessing the through home wiring pursuant to our the wiring will the alternative provider subscriber’s home wiring. For example, cable home wiring rules. In addition, have the opportunity to purchase the wiring embedded in brick, metal where the MDU owner terminates loop-through wiring. conduit or cinder blocks would likely be service for the entire loop but does not 45. We will set the demarcation ‘‘physically inaccessible’’ under this or cannot invoke our procedures for the points, i.e., the points between which definition; wiring simply enclosed disposition of home run wiring, the the MDU owner may purchase the loop- within hallway molding would not. MDU owner will nevertheless have through home wiring under our cable home wiring rules, at or about 12 inches VI. Loop-Through Cable Wiring certain rights to the home wiring within outside the point at which the loop Configurations the individual dwelling units. 42. Where a building is comprised of enters or exits the first and last 40. In a loop-through cable wiring rental units, the building owner will individual dwelling units on the loop, system, a single cable is used to provide have the right to elect to switch service or as close as practicable where 12 service to either a portion of or an entire providers and the right to purchase the inches outside is physically MDU. Every subscriber on the loop is loop-through home wiring. In buildings inaccessible. In some cases, the loop therefore limited to receiving video in which persons have a direct or may begin and end outside of the same services from the same provider. If the indirect ownership interest in unit, and thus the demarcation points cable is broken or removed, signals to individual units (as with condominiums shall be 12 inches outside the point at all succeeding units are interrupted. and cooperatives), the election of which the loop enters and exits that one Previously, we excluded MDU loop- whether to switch service providers will unit, or as close as practicable where 12 through wiring from the cable home be determined under the rules of the inches outside is physically wiring rules because we believed that association or entity that owns and inaccessible. We believe that this is applying our rules to loop-through controls the building’s common areas, consistent with section 624(i), i.e., the wiring would give the initial subscriber in a manner similar to other decisions loop-through home wiring is within the control over cable service for all made by the entity with respect to the customer’s premises, and with the cable subscribers in the loop. Because loop- common areas. If the MDU owner elects demarcation point for non-loop-through through configurations are excluded to switch to a new service provider but configurations. We note that one of our from the home wiring rules, cable does not wish to purchase the loop- prior concerns was that establishing a operators are not currently required to through home wiring, the new service separate demarcation point for each offer to sell the wire to subscribers upon provider may elect to purchase the subscriber on the loop was not feasible. termination of service, and no wiring. Under the rules set forth herein, subscriber on the loop has the right to 43. Allowing the MDU owner to however, one entity will be purchasing purchase that portion of the loop- purchase loop-through home wiring the entire home wiring loop, making it through cable wiring located inside his under these circumstances will allow unnecessary to set a demarcation point or her dwelling unit. The ownership of that party to control the wiring. We for each subscriber’s unit. loop-through wiring therefore currently believe that, at least in competitive 46. We will apply the same rules with depends on the circumstances (e.g., who markets, the MDU owner has a respect to compensation and technical installed the wire, whether the wire has significant incentive to represent the standards that we apply to non-loop- been sold and state fixture law) and is subscribers’ interests. In addition, the through wiring systems as well. In other not affected by our rules. management structures of condominium words, the loop-through wiring on the 41. As with other cable inside wiring or cooperative buildings are designed to subscriber’s side of the demarcation configurations in MDUs, a wiring loop reflect their residents’ interests. point may be purchased by the MDU Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61025 owner at the replacement cost as 49. In addition, commenters in this property owners deny access for reasons defined in § 76.802(a). The loop-through proceeding urged the Commission to unrelated to the state laws, including wiring outside the demarcation points construe section 621(a)(2) to prohibit a property damage, aesthetic up to the point at which the loop property owner from denying a considerations and space limitations. connects with the riser or feeder cable franchised cable operator access to an We believe that our rules regarding the may be addressed pursuant to the easement on the property when the building-by-building and unit-by-unit procedures set forth above with regard owner has already granted or is disposition of home run wiring adopted to the disposition of home run wiring. obligated to grant an easement to other herein will lower many of these barriers 47. Despite the competitive utilities, whether public or private. to entry and may alleviate some of the drawbacks of loop-through wiring, we Section 621(a)(2) provides that ‘‘[a]ny advantages incumbent providers may do not believe it necessary for the franchise shall be construed to authorize have with respect to providing service Commission to prohibit future the construction of a cable system over to particular buildings. 52. We remain concerned, however, installations of loop-through wiring public rights-of-way, and through easements, which is within the area to about disparate regulation of MVPDs configurations. We believe that such a be served by the cable system and that unfairly skews competition in the prohibition would unduly restrict the which have been dedicated for multichannel video programming configuration options available to compatible uses * * *.’’ Numerous marketplace. Despite our decision not to building owners and service providers. court decisions have interpreted the preempt state and local mandatory We have found no evidence in the statutory language and legislative access laws at this time, we encourage record that cable operators have history of section 621(a)(2), several these jurisdictions to evaluate present installed loop-through wiring in order to finding that this section does not laws and circumstances to determine evade our rules since they were provide cable operators access to purely whether a nondiscriminatory and implemented in 1993. Also, the private easements granted to utilities. competitively neutral environment application of our home wiring rules to We decline to address those rulings exists. We believe that establishing loop-through systems where the MDU here, but will continue to examine these competitive parity under these statutes owner seeks to switch service providers issues as we seek to ensure parity of will promote competition among should reduce any incentive cable access among all telecommunications MVPDs and will expand consumer operators may have to install loop- and video services providers. Similarly, choice. through configurations for anti- we decline at this time to adopt a C. Exclusive Service Contracts competitive reasons. mandatory access rule under section VII. Video Service Provider Access to 706 of the 1996 Act, but may revisit this 53. We recognize that there are significant competitive issues regarding Private Property issue as we consider issues of service provider access in the broader exclusive contracts. We are concerned A. Federal Mandatory Access competitive context. that long-term exclusive contracts may Requirements 50. We believe that whether an raise anti-competitive concerns because incumbent provider may use its existing they ‘‘lock up’’ properties, preventing 48. While we believe that easements or rights-of-way to provide consumers from receiving the benefits of nondiscriminatory access for video and new or additional services generally a newly competitive market. However, telephony service providers enhances depends on state law interpretations of we also note that alternative providers competition, we will not adopt a federal the terms of the easements or rights-of- cite the competitive benefits of mandatory access requirement at this way. While we decline at this time to exclusive contracts as a means of time. We note that telecommunications decide as a general matter whether such financing ‘‘specialized investments.’’ carriers’ access to telephone companies’ easements and rights-of-way permit the Without exclusive contracts to allow facilities and rights-of-way under the provision of additional services, we recovery over time on the cost of new 1996 Act are currently under believe that we do have the authority in installation, these parties assert that reconsideration in First Report and certain instances to review restrictions they will be unable to compete with the Order in CC Docket No. 96–98 and CC imposed upon such use. incumbent cable operator. We believe Docket No. 95–185 (‘‘Interconnection that the record would benefit from Order’’). We do not believe that the B. State Cable Mandatory Access further comment on these issues. In the Requirements record in this proceeding provides a Second Further Notice of Proposed sufficient basis for us to address these 51. According to the record in this Rulemaking, summarized elsewhere in issues. We will defer decisions on these proceeding, some form of mandatory the Federal Register, we seek comment issues to that proceeding. Similarly, we access law may exist in approximately on various options, including: (1) do not decide herein whether under 18 jurisdictions, including Connecticut, adopting a maximum ‘‘cap’’ on the section 207 of the 1996 Act viewers Delaware, the District of Columbia, enforceability of all MVPDs’ exclusive living in rental properties, and those Florida, Illinois, Iowa, Kansas, Maine, contracts; (2) limiting the ability of who need access to common property, Massachusetts, Minnesota, Nevada, New MVPDs with market power from have the right to receive certain video Jersey, New York, Ohio, Pennsylvania, entering into exclusive contracts; and programming services over the property Rhode Island, West Virginia and (3) adopting a ‘‘fresh look’’ period for owner’s objections. This issue will be Wisconsin. The record also indicates so-called ‘‘perpetual’’ exclusive addressed in IB Docket No. 95–59 that there may be local ordinances that contracts. (Preemption of Local Zoning Regulation provide similar access rights. We of Satellite Earth Stations) and CS believe that the record in this VIII. Customer Access to Cable Home Docket No. 96–83 (Implementation of proceeding does not support the Wiring Before Termination of Service section 207 of the Telecommunications preemption of state mandatory access 54. We will establish a rule allowing Act, Restrictions on Over-the-Air laws at this time. While commenters customers to provide and install their Devices: Television Broadcast Service opposing state mandatory access laws own cable home wiring within their and Multichannel Multipoint argue that these laws act as a barrier to premises, and to connect additional Distribution Service). entry, the record also indicates that home wiring within their premises to 61026 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations the wiring installed and owned by the (including passive splitters, connectors wiring rates at this time. These issues cable operator prior to termination of and other equipment used in the are beyond the scope of this proceeding. service. Under this rule, customers will installation of home wiring), not to We believe that our rules allowing be able to select who will install their exceed the specifications of their own consumers to install, redirect and home wiring (e.g., themselves, the cable wiring and equipment. Furthermore, we reroute their cable home wiring operator or a commercial contractor). In will protect the cable system from adequately promote the goals of addition, customers may connect electronic and physical harm by expanded competition and consumer additional wiring, splitters or other allowing the cable operator to impose choice without the need to address equipment to the cable operator’s additional technical specifications ownership issues. We also note our wiring, or redirect or reroute the home where such harm exists. obligation under section 623 to regulate wiring, so long as no electronic or 56. We will not modify our current the rates of equipment used by physical harm is caused to the cable requirement that cable operators subscribers to receive the basic service system and the physical integrity of the monitor signal leakage and eliminate tier. See 47 U.S.C. § 543. harmful interference while they are cable operator’s wiring remains intact. IX. Signal Leakage Subscribers will not be permitted to providing service, regardless of who physically cut, improperly terminate, owns the home wiring. We also will 59. The purpose of the Commission’s substantially alter or otherwise destroy continue to require cable operators to signal leakage rules is to protect cable operator-owned inside wiring. To discontinue service to a subscriber licensed over-the-air communications, protect cable operators’ systems from where signal leakage occurs, until the including aeronautical, police, and fire signal leakage, electronic and physical problem is corrected. See 47 CFR safety communications, from harm and other types of degradation, we 76.617. A cable operator will not be interference caused by signal leakage. will permit cable operators to require held responsible for facilities over Until now, the Commission rules that any home wiring (including any which it no longer provides service. We governing signal leakage have been passive splitters, connectors and other believe that the continuation of these applied only to cable systems, which equipment used in the installation of requirements will appropriately balance often deliver signals over the same home wiring) meets reasonable the interests of subscribers with the frequency bands as many over-the-air technical specifications, not to exceed interests of those engaged in licensed licensees. Specifically, § 76.605(a)(12) the technical specifications of such over-the-air communications and cable establishes the maximum individual signal leakage limits for all cable equipment installed by the cable operators in maintaining the security operators using frequencies outside the operator. If, however, the subscriber’s and integrity of the cable systems. broadcast television bands, while connection to, redirection of or 57. Allowing subscribers to install their own cable home wiring prior to §§ 76.610–76.617 impose more stringent rerouting of the home wiring causes termination of service may raise operating and monitoring requirements electronic or physical harm to the cable concerns regarding physical and for cable systems operating in the bands system, the cable operator may impose electronic harm to the cable system and that are used by aircraft for additional technical specifications to degradation of signal quality, including communications and navigation. eliminate such harm. We believe that interference with other customers’ 60. An increasing number of MVPDs subscriber access to home wiring is service. To the extent a customer’s are competing with cable operators in necessary to enhance competition, installations or rearrangements of wiring the provision of video programming and which will result in lower and more degrade the signal quality of or interfere other services. Because these MVPDs reasonable rates for services such as the with other customers’ signals, or cause often transmit signals over the same installation of additional outlets. electronic or physical harm to the cable public safety and navigation frequencies Indeed, where competition is system, we will allow cable operators to as cable operators, they may be a source introduced, consumers benefit from discontinue service to that subscriber, as of potentially harmful signal leakage. lower prices, greater technological operators may do where a customer’s The public safety concerns that underlie innovation, and additional consumer wiring causes signal leakage, until the application of our signal leakage choice. degradation or interference is resolved. regulations to cable operators are 55. We do not believe that the rule we We note, however, that cable operators equally present with respect to other are adopting will pose an undue risk of are not responsible for degradation of MVPDs such as SMATV, MMDS and signal leakage or harm to the cable signal quality to the subscriber where a open video system operators and others. system. Many subscribers already own subscriber has added outlets or owns We will therefore modify our rules to and control their home wiring—e.g., and maintains his or her own wiring. extend existing cable signal leakage where the cable operator charges for it While we recognize that theft of cable requirements to non-cable MVPDs. In upon installation or where state law service is a legitimate concern, we do light of the potential harm to public deems home wiring to be a ‘‘fixture.’’ not agree that our rules granting safety that may be caused by broadband Indeed, as many cable interests have customers pre-termination access to signal leakage interfering with pointed out in this proceeding, the cable home wiring will promote theft of aeronautical, navigational and marketplace has established the F-type service. Some cable companies already communications radio systems, we will connector as the de facto standard for provide customer pre-termination not rely on labelling requirements, connecting coaxial cable to CPE. Such access to wiring, and there is no installation instructions or cable connectors are readily available and, if evidence in the record that these performance specifications. properly used, provide adequate signal policies have resulted in increased theft 61. Systems transmitting digitized leakage protection. In addition, cable of service. In addition, cable operators signals may operate in the restricted operators can provide guidance to may take security measures, such as aeronautical and public safety bands. subscribers who install their own scrambling of their signals, to deter theft Our signal leakage rules provide that wiring. Also, as stated above, we will of service. systems operating in the restricted permit cable operators to establish 58. We will neither establish a bands are only subject to the testing and reasonable technical specifications for presumption of ownership of cable monitoring requirements when they subscriber-installed home wiring home wiring nor deregulate home operate above a threshold power level. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61027

Systems using digital transmissions that may warrant adjustments to our forces will ensure that they, too, deliver normally operate below this power signal leakage testing criteria. a good quality picture. As competition threshold. Systems using digital 64. We will not establish any new develops and its effects become clearer, technology that operate below our signal leakage testing procedures such we expect to leave the issue of signal threshold power level therefore would as tracking systems to identify the quality wholly to market forces. not generally be subject to the most source of signal leakage. We believe that XI. Means of Connection rigorous sections of our signal leakage MVPDs are capable of devising and rules. For digital transmissions that may selecting the most appropriate methods 67. Based on the record, we will not operate above the power threshold, the for detecting signal leakage on their own adopt uniform technical standards for Commission shall continue to apply the systems. We encourage MVPDs to work jacks and connectors for broadband same requirements as those for analog together to develop methods that will service. The F-type connector has transmissions due to the potential harm permit them to accurately identify the emerged as the de facto broadband to public safety. MVPDs using digital source of any signal leakage. connection standard within the cable transmission will be subject to section 65. While our signal leakage rules industry. We believe that, properly 76.605(a)(12) which sets forth the generally require cable operators to used, the F-type connector is an maximum signal leakage limits for perform signal leakage monitoring and effective means of connecting coaxial systems, regardless of the frequency testing, § 76.615 requires cable operators cable to customer premises equipment band or power level in use. to file specific information with the while minimizing the potential for 62. We will require that all MVPDs Commission. In particular, signal leakage. Non-cable video service comply with § 76.613 of our rules upon § 76.615(b)(7) requires that cable providers also use the F-type connector the effective date of the Order. Section operators annually file with the to connect their services via coaxial 76.613 protects licensed over-the-air Commission the results of signal leakage cable to customer premises equipment. communications from harmful testing. The reporting requirements of Further government action in this area interference and requires prompt action § 76.615(b)(7) may impose undue is therefore unwarranted at this time. In to eliminate such interference. We burdens on small MVPDs. In the Second addition, in light of the fact that we are believe that immediate compliance with Further Notice of Proposed Rulemaking, extending our cable signal leakage rules § 76.613 is necessary because, unlike we seek comment on whether certain to all broadband service providers, we our other signal leakage rules that are MVPDs should be exempted from the believe that such providers will have designed to minimize the risk of reporting requirements of § 76.615(b)(7). the incentive and obligation to ensure interference by requiring that leakage be Since § 76.615(b)(7) is one of the that connections are properly made with detected and repaired, § 76.613 provides provisions covered by the five-year high quality materials, without the that once harmful interference actually transition period, all non-cable MVPDs Commission mandating a connection occurs it must be promptly eliminated. will have five years to comply with the standard. We recognize, however, that immediate filing requirements; the Second Further XII. Dual Regulation compliance with many of our other Notice of Proposed Rulemaking seeks signal leakage requirements may present comment on whether we should create 68. We do not believe that the record hardships to existing MVPDs not a permanent exemption for certain types before us provides sufficient previously subject to such rules. We of MVPDs. information to address the issue of whether and how to harmonize the dual will allow for a five-year transition X. Signal Quality period from the effective date of these systems of regulation governing cable rules to afford non-cable MVPDs time to 66. By statute, the Commission is and telephone companies where comply with our signal leakage rules charged with promulgating regulations broadband or multiple services are other than § 76.613. The five-year governing the quality of television provided over a single wire or multiple transition period will apply only to the signals delivered to cable subscribers. wires. Based on the current record, it systems of those non-cable MVPDs that We believe that continued application appears that service providers will have been substantially built as of of the Commission’s signal quality continue to use separate inside wiring to January 1, 1998. We will define standards to cable operators is necessary provide cable and telephone service for ‘‘substantially built’’ as having 75% of because, despite the recent entrance of at least the near future. If and when the distribution plant completed. The other service providers into the video circumstances change, we will revisit signal leakage requirements under Part market, cable operators, in most areas of this issue with the goal of creating a 15 of the Commission’s rules will the country, still exercise significant single set of inside wiring rules. continue to apply during the transition market power. We do not believe at this XIII. Regulation of Simple and Complex period. time that market forces alone will and of Residential and Non-Residential 63. Our rules require that each cable ensure that cable subscribers receive the system perform an independent signal quality picture they are entitled to Wiring leakage test annually. 47 CFR 76.611. expect. With regard to non-cable 69. We will not, at this time, establish Based on the current record, we will not broadband service providers, we believe common definitions in the common amend our rules to treat MDUs or that government regulation of signal carrier and cable rules with regard to different geographic areas connected by quality would be unnecessary and simple versus complex wiring and microwave link as separate systems for unduly intrusive. These alternative residential versus non-residential testing purposes. We believe that for the providers do not exercise market power wiring. See 47 CFR 68.213, 68.215. In past six years our testing criteria have and virtually always compete with an the telephone context, we believe that provided effective standards for incumbent cable operator. Head-to-head our distinction between simple and monitoring and rectifying signal leakage competition with a cable operator complex wiring has proven to be a in 31,000 cable communities should ensure that alternative MVPDs workable and effective way to promote nationwide. Cognizant of the changing deliver a good quality picture in order competition while ensuring network technologies that may be used by to attract and retain customers. We protection. Similarly, in the cable MVPDs, we will continue to review believe that, as cable operators become context, there may be substantial specific systems’ operations and designs subject to vigorous competition, market differences between residential and 61028 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations commercial buildings which would pose a similar threat of interference with systems, satellite master antenna make it difficult to adopt uniform rules licensed over-the-air communications. systems and subscription television for all kinds of property. We do not services. According to the Bureau of the Summary of Issues Raised by the Public believe that the current record provides Census, there were 1423 such cable and Comments in Response to the Initial other pay television services generating sufficient evidence to support the need Regulatory Flexibility Analysis for a modification of our rules, nor does less than $11 million in revenue that it provide adequate guidance on the 73. In response to the IRFAs were in operation for at least one year direction any such modification should contained in the Inside Wiring Notice at the end of 1992. 1992 Economic take. We therefore will not modify our and the Cable Home Wiring Further Census Industry and Enterprise Receipts rules at this time. Notice, Building Owners, et al., filed Size Report, Table 2D, SIC 4841 (U.S. comments arguing that the proposed Bureau of the Census data under XIV. Customer Premises Equipment rules would have a significant effect on contract to the Office of Advocacy of the 70. The issue of whether we should small residential and commercial U.S. Small Business Administration). revise our rules regarding customer building operators and that the We will address each service premises equipment will be addressed Commission should exempt these individually to provide a more succinct in a separate ongoing Commission entities from any final rules. In response estimate of small entities. rulemaking proceeding arising under to the IRFA contained in the Inside 76. Cable Systems: The Commission new section 629 of the Communications Wiring Notice, CATA filed comments has developed its own definition of a Act. and an ex parte submission requesting small cable company for the purposes of that the Commission rescind the Inside rate regulation. Under the Commission’s XV. Final Regulatory Flexibility Act Wiring Notice and reissue it as a notice rules, a ‘‘small cable company,’’ is one Analysis of inquiry or reissue it with specific serving fewer than 400,000 subscribers proposed rules. CATA argues that the 71. As required by section 603 of the nationwide. 47 CFR 76.901(e). The Inside Wiring Notice failed to propose Regulatory Flexibility Act, 5 U.S.C. Commission developed this definition specific rules, thereby preventing both based on its determinations that a small § 603 (‘‘RFA’’), Initial Regulatory the Commission staff and small entities cable system operator is one with Flexibility Analyses (‘‘IRFAs’’) were from analyzing and commenting on the annual revenues of $100 million or less. incorporated in the Inside Wiring effects of proposed rules on small Based on our most recent information, Notice, the Cable Home Wiring Further entities. RTE Group filed its comments we estimate that there were 1439 cable Notice, and the Inside Wiring Further and reply comments as ‘‘a response by operators that qualified as small cable Notice. The Commission sought written a small business pursuant to section 603 companies at the end of 1995. Since public comments on the proposals in of the Regulatory Flexibility Act.’’ The then, some of those companies may these notices, including comments on issues raised by RTE Group are have grown to serve over 400,000 the IRFAs. This Final Regulatory addressed above. No comments were subscribers, and others may have been Flexibility Analysis (‘‘FRFA’’) conforms filed in response to the IRFA contained involved in transactions that caused to the RFA, as amended by the Contract in the Inside Wiring Further Notice. them to be combined with other cable with America Advancement Act of 1996 operators. Consequently, we estimate (‘‘CWAAA’’), Public Law 104–121, 110 Description and Estimate of the Number of Small Entities Impacted that there are fewer than 1439 small Stat. 847 (1996). Title II of the CWAAA entity cable system operators that may is ‘‘The Small Business Regulatory 74. The RFA directs the Commission be affected by the decisions and rules Enforcement Fairness Act of 1996’’ to provide a description of and, where adopted in the Order. (SBREFA), codified at 5 U.S.C. § 601 et feasible, an estimate of the number of 77. The Communications Act also seq. small entities that will be affected by the contains a definition of a small cable Need for Action and Objectives of the proposed rules. The RFA defines the system operator, which is ‘‘a cable Rule term ‘‘small entity’’ as having the same operator that, directly or through an meaning as the terms ‘‘small business,’’ affiliate, serves in the aggregate fewer 72.This Order adopts new procedural ‘‘small organization,’’ and ‘‘small than 1% of all subscribers in the United mechanisms to provide order and governmental jurisdiction,’’ and the States and is not affiliated with any certainty regarding the disposition of same meaning as the term ‘‘small entity or entities whose gross annual MDU home run wiring upon business concern’’ under section 3 of revenues in the aggregate exceed termination of existing service. In the Small Business Act. Under the $250,000,000.’’ The Commission has addition, this Order promotes Small Business Act, a ‘‘small business determined that there are 61,700,000 competition and consumer choice by concern’’ is one that: (1) is subscribers in the United States. establishing rules for the disposition of independently owned and operated; (2) Therefore, we found that an operator cable ‘‘loop through’’ wiring upon is not dominant in its field of operation; serving fewer than 617,000 subscribers termination of service. This Order also and (3) satisfies any additional criteria shall be deemed a small operator, if its permits consumers to provide or install established by the Small Business annual revenues, when combined with their own cable home wiring, or Administration (‘‘SBA’’). The rules we the total annual revenues of all of its redirect, reroute or connect additional adopt in this Order will affect video affiliates, do not exceed $250 million in wiring to the cable operator’s home service providers and MDU owners. the aggregate. Based on available data, wiring. These rules will promote 75. Small MVPDs: SBA has developed we find that the number of cable competition among MVPDs as well as a definition of a small entity for cable operators serving 617,000 subscribers or cable wiring services, which will result and other pay television services, which less totals 1450. Although it seems in lower prices, greater technological includes all such companies generating certain that some of these cable system innovation, and additional consumer $11 million or less in annual receipts. operators are affiliated with entities choice. Finally, to protect public safety This definition includes cable system whose gross annual revenues exceed and navigation frequencies, this Order operators, closed circuit television $250,000,000, we are unable at this time applies the cable signal leakage rules to services, direct broadcast satellite to estimate with greater precision the all broadband service providers that services, multipoint distribution number of cable system operators that Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61029 would qualify as small cable operators providers, of which 115 channels are have not yet started operations. under the definition in the scrambled and approximately 150 are Accordingly, we believe that three OVS Communications Act. unscrambled. HSD owners can watch licensees may qualify as small business 78. MMDS: The Commission refined unscrambled channels without paying a concerns. the definition of ‘‘small entity’’ for the subscription fee. To receive scrambled 85. SMATVs: Industry sources auction of MMDS as an entity that channels, however, an HSD owner must estimate that approximately 5200 together with its affiliates has average purchase an integrated receiver-decoder SMATV operators were providing gross annual revenues that are not more from an equipment dealer and pay a service as of December 1995. Other than $40 million for the preceding three subscription fee to an HSD estimates indicate that SMATV calendar years. This definition of a programming packager. Thus, HSD operators serve approximately 1.05 small entity in the context of the users include: (1) Viewers who million residential subscribers as of Commission’s Report and Order subscribe to a packaged programming September 1996. The ten largest concerning MMDS auctions has been service, which affords them access to SMATV operators together pass 815,740 approved by the SBA. most of the same programming provided units. If we assume that these SMATV 79. The Commission completed its to subscribers of other video service operators serve 50% of the units passed, MMDS auction in March 1996 for providers; (2) viewers who receive only the ten largest SMATV operators serve authorizations in 493 basic trading areas non-subscription programming; and (3) approximately 40% of the total number (‘‘BTAs’’). Of 67 winning bidders, 61 viewers who receive satellite of SMATV subscribers. Because these qualified as small entities. Five bidders programming services illegally without operators are not rate regulated, they are indicated that they were minority- subscribing. Because scrambled not required to file financial data with owned and four winners indicated that packages of programming are most the Commission. Furthermore, we are they were women-owned businesses. specifically intended for retail not aware of any privately published MMDS is an especially competitive consumers, these are the services most financial information regarding these service, with approximately 1573 relevant to this discussion. operators. Based on the estimated previously authorized and proposed 83. According to the most recently number of operators and the estimated MMDS facilities. Information available available information, there are number of units served by the largest to us indicates that no MMDS facility approximately 30 program packagers ten SMATVs, we believe that a generates revenue in excess of $11 nationwide offering packages of substantial number of SMATV operators million annually. We believe that there scrambled programming to retail qualify as small entities. are approximately 1634 small MMDS consumers. These program packagers 86. LMDS: Unlike the above pay providers as defined by the SBA and the provide subscriptions to approximately television services, LMDS technology Commission’s auction rules. 2,314,900 subscribers nationwide. This and spectrum allocation will allow 80. ITFS: There are presently 1,989 is an average of about 77,163 subscribers licensees to provide wireless telephony, licensed educational ITFS stations and per program packager. This is data, and/or video services. An LMDS 97 licensed commercial ITFS stations. substantially smaller than the 400,000 provider is not limited in the number of Educational institutions are included in subscribers used in the Commission’s potential applications that will be the definition of a small business. definition of a small MSO. Furthermore, available for this service. Therefore, the However, we do not collect annual because this an average, it is likely that definition of a small LMDS entity may revenue data for ITFS licensees and are some program packagers may be be applicable to both cable and other unable to ascertain how many of the 97 substantially smaller. pay television (SIC 4841) and/or commercial stations would be 84. OVS: The Commission has radiotelephone communications categorized as small under the SBA certified nine OVS operators. Because companies (SIC 4812). The SBA definition. Thus, we believe that at least these services were introduced so definition for cable and other pay 1,989 ITFS licensees are small recently and only one operator is services is defined above. A small businesses. currently offering programming to our radiotelephone entity is one with 1500 81. DBS: There are presently nine knowledge, little financial information employees or less. For the purposes of DBS licensees, some of which are not is available. Bell Atlantic (certified for this proceeding, we include only an currently in operation. The Commission operation in Dover) and Metropolitan estimate of LMDS video service does not collect annual revenue data for Fiber Systems (‘‘MFS,’’ certified for providers. The vast majority of LMDS DBS and, therefore, is unable to operation in Boston and New York) entities providing video distribution ascertain the number of small DBS have sufficient revenues to assure us could be small businesses under the licensees that could be impacted by that they do not qualify as small SBA’s definition of cable and pay these proposed rules. Although DBS business entities. Two other operators, television (SIC 4841). However, in the service requires a great investment of Residential Communications Network LMDS Second Report and Order, we capital for operation, we acknowledge (‘‘RCN,’’ certified for operation in New defined a small LMDS provider as an that there are several new entrants in York) and RCN/BETG (certified for entity that, together with affiliates and this field that may not yet have operation in Boston), are MFS affiliates attributable investors, has average gross generated $11 million in annual and thus also fail to qualify as small revenues for the three preceding receipts, and therefore may be business concerns. However, Digital calendar years of less than $40 million. categorized as a small business, if Broadcasting Open Video Systems (a We have not yet received approval by independently owned and operated. general partnership certified for the SBA for this definition. 82. HSD: The market for HSD service operation in southern California), Urban 87. There is only one company, is difficult to quantify. Indeed, the Communications Transport Corp. (a CellularVision, that is currently service itself bears little resemblance to corporation certified for operation in providing LMDS video services. other MVPDs. HSD owners have access New York and Westchester), and Although the Commission does not to more than 265 channels of Microwave Satellite Technologies, Inc. collect data on annual receipts, we programming placed on C-band (a corporation owned solely by Frank T. assume that CellularVision is a small satellites by programmers for receipt Matarazzo and certified for operation in business under both the SBA definition and distribution by video service New York) are either just beginning or and our proposed auction rules. We 61030 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations tentatively conclude that a majority of their own cable home wiring, or for future installations, MVPDs transfer the potential LMDS licensees will be redirect, reroute or connect additional ownership of home run wiring to MDU small entities, as that term is defined by wiring to the cable operator’s home owners. We instead decided to require the SBA. wiring, so long as no electronic or MVPDs to include in future contracts 88. MDU Operators: The SBA has physical harm is caused to the cable with MDU owners a provision developed definitions of small entities system and the physical integrity of the addressing the disposition of home run for operators of nonresidential cable operator’s wiring remains intact. wiring upon termination of the contract. buildings, apartment buildings and The cable operator may choose to This requirement will provide all MDU dwellings other than apartment impose requirements that any home owners, including small MDU owners, buildings, which include all such wiring meet reasonable technical the flexibility to negotiate for ownership companies generating $5 million or less specifications, not to exceed the of the home run wiring. in revenue annually. According to the technical specifications of such wiring 96. Sharing of Molding: We Census Bureau, there were 26,960 installed by the cable operator; however, considered not requiring the sharing of operators of nonresidential buildings the cable operator may require molding even when empty space exists. generating less than $5 million in additional technical specifications to We concluded, however, that the ability revenue that were in operation for at eliminate electronic or physical harm. to share molding often may assist small least one year at the end of 1992. Also 93. Signal Leakage: The Order extends MVPDs, which frequently are new according to the Census Bureau, there the Commission’s cable signal leakage entrants, to gain access to MDUs. We were 39,903 operators of apartment rules to all broadband service providers considered Time Warner’s proposal to dwellings generating less than $5 that pose a similar threat of interference allow affected MVPDs and the MDU million in revenue that were in with frequencies used for over-the-air owner to determine whether the operation for at least one year at the end communications. Section 76.615(b)(7) of molding contains adequate space. Our of 1992. The Census Bureau provides no the cable signal leakage rules requires rule, however, does not require the separate data regarding operators of cable operators to file annually with the concurrence of the affected MVPDs in dwellings other than apartment Commission the results of their signal the determination of whether adequate buildings, and we are unable at this leakage tests conducted pursuant to space exists. time to estimate the number of such section 76.611. 97. Customer Access to Cable Home operators that would qualify as small Wiring before Termination of Service: Significant Alternatives and Steps entities. We believe that subscriber access to Taken To Minimize the Significant home wiring will advance the interests Reporting, Recordkeeping, and Other Economic Impact on a Substantial Compliance Requirements Number of Small Entities Consistent of small entities. As customers gain the With the Stated Objectives ability to select who will install and 89. Disposition of MDU Home Run maintain their home wiring, small Wiring: The Order requires MVPDs to This section analyzes the impact on entities will be able to compete with the comply with a set of procedural small entities of the regulations incumbent cable operator to provide timetables for the disposition of home adopted, amended, modified, or such services. run wiring upon termination of service clarified in this Order. 98. Signal Leakage: This Order when an MDU owner invokes the 94. Disposition of MDU Home Run extends the Commission’s cable signal Commission’s procedures. In addition, Wiring: We considered several leakage rules to all broadband service it requires MVPDs to include in future alternatives for the disposition of MDU providers that pose a similar threat of contracts with MDU owners a provision home run wiring, including: (1) Creating interference with frequencies used for addressing the disposition of home run a single demarcation point for cable and over-the-air communications. Although wiring upon the termination of the telephony providers; (2) moving the this modification will impact small contract. It also requires the parties to cable demarcation point; and (3) broadband service providers, we are cooperate to ensure as seamless a maintaining our current rules. The exploring the possibility of exempting transition as possible for subscribers. record indicates that MDU owners often certain categories of broadband service 90. Sharing of Molding: The Order object to the installation of multiple providers from the reporting permits an MVPD to install home run home run wires for reasons including requirements of the signal leakage rules. wiring in an existing molding if the aesthetics, space limitations, the MDU owner determines that there is avoidance of disruption and Report to Congress sufficient space, if the incumbent inconvenience, and the potential for 99. The Commission shall send a copy MVPD’s ability to provide service is not property damage. Small video service of the Order, including this FRFA, in a impaired, and if the MDU owner gives providers often are new entrants that report to Congress pursuant to the Small its affirmative consent. If the MDU will have to install new home run Business Regulatory Enforcement owner determines that there is not wiring (if they cannot use the existing Fairness Act of 1996, 5 U.S.C. sufficient space, and the MDU owner wiring), while incumbent service § 801(a)(1)(A). A copy of the Order and will permit larger moldings, the MDU providers often are established entities the FRFA will be sent to the Chief owner may install larger moldings at the that may resist efforts by both new Counsel for Advocacy of the Small alternative MVPD’s expense. entrants and MDU operators to arrange Business Administration. 91. Disposition of Cable Home Wiring: for use of the existing wiring. By The Order requires MVPDs to bringing order and certainty to the XVI. Ordering Clauses implement their election to remove or disposition of the home run wiring 100. It is Ordered that, pursuant to abandon home wiring within seven days upon termination of service, the rules sections 1, 4(i), 201–205, 214–215, 220, of learning that the home wiring will adopted herein advance the interests of 303, 623, 624 and 632 of the not be purchased. both small video service providers and Communications Act of 1934, as 92. Customer Access to Cable Home small MDU owners. amended, 47 U.S.C. §§ 151, 154(i), 201– Wiring before Termination of Service: 95. Transfer of Ownership of Home 205, 214–215, 220, 303, 543, 544 and The Order requires cable operators to Run Wiring in Future Installations: We 552, the Commission’s rules are hereby permit subscribers to provide or install considered adopting a requirement that, amended as set forth below. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61031

101. It is further ordered that the does not require access to the individual 4. Section 76.620 is added to read as amendments in 47 CFR 76.613, 76.802 subscriber’s dwelling unit. follows: and 76.804 impose information (3) For new and existing multiple collection requirements, and will § 76.620 Non-cable multichannel video dwelling unit installations with loop- programming distributors (``MVPDs''). therefore not become effective until through wiring configurations, the approved by the Office of Management demarcation points shall be at (or about) (a) Sections 76.605(a)(12), 76.610, and Budget (‘‘OMB’’). The amendments twelve inches outside of where the cable 76.611, 76.612, 76.614, 76.615(b)(1–6), in 47 CFR 76.5, 76.620, 76.800, 76.805 wire enters or exits the first and last 76.616, and 76.617 shall apply to all and 76.806 will become effective 30 individual dwelling units on the loop, non-cable MVPDs. However, non-cable days following publication of this Order or, where the wire is physically MVPD systems that are substantially in the Federal Register. However, inaccessible at such point(s), the closest built as of January 1, 1998 shall not be compliance with amendments in 47 practicable point thereto that does not subject to these sections until January 1, CFR 76.5, 76.620, 76.800, 76.805 and require access to an individual 2003. ‘‘Substantially built’’ shall be 76.806 will not be required until OMB subscriber’s dwelling unit. defined as having 75 percent of the distribution plant completed. As of approval of the information collection (4) As used in this paragraph (mm)(3), January 1, 2003, § 76.615(b)(7) shall requirements in 47 CFR 76.613, 76.802 the term ‘‘physically inaccessible’’ apply to all non-cable MVPDs. and 76.804. The Commission will describes a location that: (b) To comply with § 76.615(b)(2), a publish a document at a later date (i) Would require significant announcing the effective date of the non-cable MVPD shall submit its modification of, or significant damage Internal Revenue Service’s Employer amendments in 47 CFR 76.613, 76.802 to, preexisting structural elements, and and 76.804, and the date of compliance Identification (E.I.) number instead of an (ii) Would add significantly to the FCC identifier. for the amendments in 47 CFR 76.5, physical difficulty and/or cost of 76.620, 76.800, 76.805 and 76.806. 5. Subpart M is amended by revising accessing the subscriber’s home wiring. the heading to read as follows: 102. It is further ordered that the Note to paragraph (mm)(4): For example, Commission shall send a copy of the wiring embedded in brick, metal conduit or Subpart MÐCable Inside Wiring Order, including the Final Regulatory cinder blocks with limited or without access Flexibility Analysis, to the Chief openings would likely be physically 6. Section 76.800 is added to read as Counsel for Advocacy of the Small inaccessible; wiring enclosed within hallway follows: molding would not. Business Administration. § 76.800 Definitions. List of Subjects in 47 CFR Part 76 * * * * * (a) MDU. A multiple dwelling unit 3. Section 76.613 is amended by Cable television. building (e.g., an apartment building, revising the heading and by revising condominium building or cooperative). Federal Communications Commission. paragraphs (b), (c), and (d) to read as (b) MDU owner. The entity that owns William F. Caton, follows: or controls the common areas of a Acting Secretary. § 76.613 Interference from a multichannel multiple dwelling unit building. (c) MVPD. A multichannel video Rule Changes video programming distributor (``MVPD''). programming distributor, as that term is * * * * * Part 76 of title 47 of the Code of defined in Section 602(13) of the (b) An MVPD that causes harmful Federal Regulations is amended as Communications Act, 47 U.S.C. 522(13). follows: interference shall promptly take (d) Home run wiring. The wiring from appropriate measures to eliminate the the demarcation point to the point at PART 76ÐCABLE TELEVISION harmful interference. which the MVPD’s wiring becomes SERVICE (c) If harmful interference to radio devoted to an individual subscriber or communications involving the safety of 1. The authority citation for part 76 individual loop. life and protection of property cannot be 7. Section 76.802 is amended by continues to read as follows: promptly eliminated by the application revising paragraphs (a) and (g), and Authority: 47 U.S.C. 151, 152, 153, 154, of suitable techniques, operation of the adding paragraph (l) to read as follows: 301, 302, 303, 303a, 307, 308, 309, 312, 315, offending MVPD or appropriate 317, 325, 503, 521, 522, 531, 532, 533, 534, elements thereof shall immediately be § 76.802 Disposition of cable home wiring. 535, 536, 537, 543, 544, 544a, 545, 548, 552, suspended upon notification by the (a)(1) Upon voluntary termination of 554, 556, 558, 560, 561, 571, 572, 573. District Director and/or Resident Agent cable service by a subscriber in a single 2. Section 76.5 is amended by revising of the Commission’s local field office, unit installation, a cable operator shall paragraph (mm)(2) and adding and shall not be resumed until the not remove the cable home wiring paragraphs (mm)(3) and (mm)(4), to read interference has been eliminated to the unless it gives the subscriber the as follows: satisfaction of the District Director and/ opportunity to purchase the wiring at or Resident Agent. When authorized by the replacement cost, and the subscriber § 76.5 Definitions. the District Director and/or Resident declines. If the subscriber declines to * * * * * Agent, short test operations may be purchase the cable home wiring, the (mm) * * * made during the period of suspended cable system operator must then remove (2) For new and existing multiple operation to check the efficacy of the cable home wiring within seven dwelling unit installations with non- remedial measures. days of the subscriber’s decision, under loop-through wiring configurations, the (d) The MVPD may be required by the normal operating conditions, or make demarcation point shall be a point at (or District Director and/or Resident Agent no subsequent attempt to remove it or about) twelve inches outside of where to prepare and submit a report regarding to restrict its use. the cable wire enters the subscriber’s the cause(s) of the interference, (2) Upon voluntary termination of dwelling unit, or, where the wire is corrective measures planned or taken, cable service by an individual physically inaccessible at such point, and the efficacy of the remedial subscriber in a multiple-unit the closest practicable point thereto that measures. installation, a cable operator shall not be 61032 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations entitled to remove the cable home wiring and restore the MDU building restore the building consistent with wiring unless: it gives the subscriber the consistent with state law within 30 days state law, it must do so within 30 days opportunity to purchase the wiring at of the end of the 90-day notice period of the end of the 90-day notice period the replacement cost; the subscriber or within 30 days of actual service or within 30 days of actual service declines, and neither the MDU owner termination, whichever occurs first; to termination, which ever occurs first. nor an alternative MVPD, where abandon and not disable the wiring at (3) If the incumbent elects to submit permitted by the MDU owner, has the end of the 90-day notice period; or to binding arbitration, the parties shall provided reasonable advance notice to to sell the wiring to the MDU building have seven days to agree on an the incumbent provider that it would owner. If the incumbent provider elects independent expert or to each designate purchase the cable home wiring to remove or abandon the wiring, and it an expert who will pick a third expert pursuant to this section if and when a intends to terminate service before the within an additional seven days. The subscriber declines. If the cable system end of the 90-day notice period, the independent expert chosen will be operator is entitled to remove the cable incumbent provider shall notify the required to assess a reasonable price for home wiring, it must then remove the MDU owner at the time of this election the home run wiring by the end of the wiring within seven days of the of the date on which it intends to 90-day notice period. If the incumbent subscriber’s decision, under normal terminate service. If the incumbent elects to submit the matter to binding operating conditions, or make no provider elects to remove its wiring and arbitration and the MDU owner (or the subsequent attempt to remove it or to restore the building consistent with alternative provider) refuses to restrict its use. state law, it must do so within 30 days participate, the incumbent shall have no (3) The cost of the cable home wiring of the end of the 90-day notice period further obligations under the is to be based on the replacement cost or within 30 days of actual service Commission’s home run wiring per foot of the wiring on the subscriber’s termination, which ever occurs first. For disposition procedures. If the side of the demarcation point multiplied purposes of abandonment, passive incumbent fails to comply with any of by the length in feet of such wiring, and devices, including splitters, shall be the deadlines established herein, it shall the replacement cost of any passive considered part of the home run wiring. be deemed to have elected to abandon splitters located on the subscriber’s side The incumbent provider that has elected its home run wiring at the end of the 90- of the demarcation point. to abandon its home run wiring may day notice period. (4) The MDU owner shall be * * * * * remove its amplifiers or other active devices used in the wiring if an permitted to exercise the rights of (g) If the cable operator adheres to the individual subscribers under this procedures described in paragraph (b) of equivalent replacement can easily be reattached. In addition, an incumbent subsection for purposes of the this section, and the subscriber asks for disposition of the cable home wiring provider removing any active elements more time to make a decision regarding under § 76.802. When an MDU owner shall comply with the notice whether to purchase the home wiring, notifies an incumbent provider under requirements and other rules regarding the seven (7) day period described in this section that the incumbent the removal of home run wiring. If the paragraph (b) of this section will not provider’s access to the entire building MDU owner declines to purchase the begin running until the subscriber will be terminated and that the MDU home run wiring, the MDU owner may declines to purchase the wiring; in owner seeks to use the home run wiring permit an alternative provider that has addition, the subscriber may not use the for another service, the incumbent been authorized to provide service to wiring to connect to an alternative provider shall, in accordance with our the MDU to negotiate to purchase the service provider until the subscriber current home wiring rules: offer to sell notifies the operator whether or not the wiring. to the MDU owner any home wiring subscriber wishes to purchase the (2) If the incumbent provider elects to within the individual dwelling units wiring. sell the home run wiring under that the incumbent provider owns and * * * * * paragraph (a)(1) of this section, the intends to remove; and provide the (l) The provisions of § 76.802, except incumbent and the MDU owner or MDU owner with the total per-foot for § 76.802(a)(1), shall apply to all alternative provider shall have 30 days replacement cost of such home wiring. MVPDs in the same manner that they from the date of election to negotiate a This information must be provided to apply to cable operators. price. If the parties are unable to agree the MDU owner within 30 days of the 8. Section 76.804 is added to read as on a price within that 30-day time initial notice that the incumbent’s follows: period, the incumbent must elect: to access to the building will be abandon without disabling the wiring; terminated. If the MDU owner declines § 76.804 Disposition of home run wiring. to remove the wiring and restore the to purchase the cable home wiring, the (a) Building-by-building disposition of MDU consistent with state law; or to MDU owner may allow the alternative home run wiring. (1) Where an MVPD submit the price determination to provider to purchase the home wiring owns the home run wiring in an MDU binding arbitration by an independent upon service termination under the and does not (or will not at the expert. If the incumbent provider terms and conditions of § 76.802. If the conclusion of the notice period) have a chooses to abandon or remove its MDU owner or the alternative provider legally enforceable right to remain on wiring, it must notify the MDU owner elects to purchase the home wiring the premises against the wishes of the at the time of this election if and when under these rules, it must so notify the MDU owner, the MDU owner may give it intends to terminate service before the incumbent MVPD provider not later the MVPD a minimum of 90 days’ end of the 90-day notice period. If the than 30 days before the incumbent’s written notice that its access to the incumbent service provider elects to termination of access to the building entire building will be terminated to abandon its wiring at this point, the will become effective. If the MDU owner invoke the procedures in this section. abandonment shall become effective at and the alternative provider fail to elect The MVPD will then have 30 days to the end of the 90-day notice period or to purchase the home wiring, the notify the MDU owner in writing of its upon service termination, whichever incumbent provider must then remove election for all the home run wiring occurs first. If the incumbent elects at the cable home wiring, under normal inside the MDU building: to remove the this point to remove its wiring and operating conditions, within 30 days of Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61033 actual service termination, or make no subscribers wish to switch service home run wiring immediately to subsequent attempt to remove it or to providers after the expiration of the 60- provide service. The alternative restrict its use. day notice period but before the expert provider or the MDU owner may act as (5) The parties shall cooperate to issues its price determination, the the subscriber’s agent in providing avoid disruption in service to procedures set forth in paragraph (b)(3) notice of a subscriber’s desire to change subscribers to the extent possible. of this section shall be followed, subject services, consistent with state law. If a (b) Unit-by-unit disposition of home to the price established by the arbitrator. subscriber’s service is terminated run wiring: (1) Where an MVPD owns If the incumbent elects to submit the without notification that another service the home run wiring in an MDU and matter to binding arbitration and the provider intends to use the existing does not (or will not at the conclusion MDU owner (or the alternative provider) home run wiring to provide service to of the notice period) have a legally refuses to participate, the incumbent that particular subscriber, the enforceable right to maintain any shall have no further obligations under incumbent provider will not be required particular home run wire dedicated to a the Commission’s home run wiring to carry out its election to sell, remove particular unit on the premises against disposition procedures. or abandon the home run wiring; the the MDU owner’s wishes, the MDU (3) When an MVPD that is currently incumbent provider will be required to owner may permit multiple MVPDs to providing service to a subscriber is carry out its election, however, if and compete for the right to use the notified either orally or in writing that when it receives notice that a subscriber individual home run wires dedicated to that subscriber wishes to terminate wishes to use the home run wiring to each unit in the MDU. The MDU owner service and that another service receive an alternative service. Section must provide at least 60 days’ written provider intends to use the existing 76.802 of the Commission’s rules notice to the incumbent MVPD of the home run wire to provide service to that regarding the disposition of cable home MDU owner’s intention to invoke this particular subscriber, a provider that has wiring will apply where a subscriber’s procedure. The incumbent MVPD will elected to remove its home run wiring service is terminated without notifying then have 30 days to provide a single pursuant to paragraph (b)(1) or (b)(2) of the incumbent provider that the written election to the MDU owner as to this section will have seven days to subscriber wishes to use the home run whether, for each and every one of its remove its home run wiring and restore wiring to receive an alternative service. home run wires dedicated to a the building consistent with state law. If (5) The parties shall cooperate to subscriber who chooses an alternative the subscriber has requested service avoid disruption in service to provider’s service, the incumbent MVPD termination more than seven days in the subscribers to the extent possible. will: remove the wiring and restore the future, the seven-day removal period (6) Section 76.802 of the MDU building consistent with state law; shall begin on the date of actual service Commission’s rules regarding the abandon the wiring without disabling it; termination (and, in any event, shall disposition of cable home wiring will or sell the wiring to the MDU owner. If end no later than seven days after the continue to apply to the wiring on the the MDU owner refuses to purchase the requested date of termination). If the subscriber’s side of the cable home run wiring, the MDU owner may provider has elected to abandon or sell demarcation point. permit the alternative provider to the wiring pursuant to paragraph (b)(1) (c) The procedures set forth in purchase it. If the alternative provider is or (b)(2) of this section, the paragraphs (a) and (b) of this section permitted to purchase the wiring, it will abandonment or sale will become shall apply unless and until the be required to make a similar election effective upon actual service incumbent provider obtains a court within this 30-day period for each home termination or upon the requested date ruling or an injunction within forty-five run wire solely dedicated to a subscriber of termination, whichever occurs first. (45) days following the initial notice who switches back from the alternative For purposes of abandonment, passive enjoining its displacement. provider to the incumbent MVPD. devices, including splitters, shall be (d) After the effective date of this rule, (2) If the incumbent provider elects to considered part of the home run wiring. MVPDs shall include a provision in all sell the home run wiring under The incumbent provider may remove its service contracts entered into with MDU paragraph (b)(1), the incumbent and the amplifiers or other active devices used owners setting forth the disposition of MDU owner or alternative provider in the wiring if an equivalent any home run wiring in the MDU upon shall have 30 days from the date of replacement can easily be reattached. In the termination of the contract. election to negotiate a price. During this addition, an incumbent provider (e) Incumbents are prohibited from 30-day negotiation period, the parties removing any active elements shall using any ownership interest they may may arrange for an up-front lump sum comply with the notice requirements have in property located on or near the payment in lieu of a unit-by-unit and other rules regarding the removal of home run wiring, such as molding or payment. If the parties are unable to home run wiring. If the incumbent conduit, to prevent, impede, or in any agree on a price during this 30-day time provider intends to terminate service way interfere with, the ability of an period, the incumbent must elect: to prior to the end of the seven-day period, alternative MVPD to use the home run abandon without disabling the wiring; the incumbent shall inform the party wiring pursuant to this section. to remove the wiring and restore the requesting service termination, at the (f) Section 76.804 shall apply to all MDU consistent with state law; or to time of such request, of the date on MVPDs. submit the price determination to which service will be terminated. The 9. Section 76.805 is added to read as binding arbitration by an independent incumbent provider shall make the follows: expert. If the incumbent elects to submit home run wiring accessible to the to binding arbitration, the parties shall alternative provider within twenty-four § 76.805 Access to molding. have seven days to agree on an (24) hours of actual service termination. (a) An MVPD shall be permitted to independent expert or to each designate (4) If the incumbent provider fails to install one or more home run wires an expert who will pick a third expert comply with any of the deadlines within the existing molding of an MDU within an additional seven days. The established herein, the home run wiring where the MDU owner finds that there independent expert chosen will be shall be considered abandoned, and the is sufficient space to permit the required to assess a reasonable price for incumbent may not prevent the installation of the additional wiring the home run wiring within 14 days. If alternative provider from using the without interfering with the ability of an 61034 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations existing MVPD to provide service, and integrity of the cable operator’s wiring These amendments, which were gives its affirmative consent to such remains intact. published in the Federal Register on installation. This paragraph shall not (b) Cable operators may require that May 23, 1997, relate to implementation apply where the incumbent provider home wiring (including passive of the cable television leased access and has an exclusive contractual right to splitters, connectors and other public, educational, and governmental occupy the molding. equipment used in the installation of access indecency provisions of the 1992 (b) If an MDU owner finds that there home wiring) meets reasonable Cable Act. is insufficient space in existing molding technical specifications, not to exceed EFFECTIVE DATE: The amendments to 47 to permit the installation of the new the technical specifications of such CFR Sections 76.701 and 76.702, wiring without interfering with the equipment installed by the cable published at 62 FR 28371, became ability of an existing MVPD to provide operator; provided however, that if effective on October 29, 1997. service, but gives its affirmative consent electronic or physical harm is caused to to the installation of larger molding and the cable system, the cable operator may FOR FURTHER INFORMATION CONTACT: additional wiring, the MDU owner (with impose additional technical Meryl S. Icove, Cable Services Bureau, or without the assistance of the specifications to eliminate such harm. (202) 418–7200. incumbent and/or the alternative To the extent a customer’s installations SUPPLEMENTARY INFORMATION: provider) shall be permitted to remove or rearrangements of wiring degrade the the existing molding, return such signal quality of or interfere with other 1. On May 7, 1997, the Commission molding to the incumbent, if customers’ signals, or cause electronic released an order revising its indecency appropriate, and install additional or physical harm to the cable system, rules for leased access and public, wiring and larger molding in order to the cable operator may discontinue educational and governmental access contain the additional wiring. This service to that subscriber until the channels, a summary of which was paragraph shall not apply where the degradation or interference is resolved. published in the Federal Register. See incumbent provider possesses a (c) Customers shall not physically cut, 62 FR 28371, May 23, 1997. Because contractual right to maintain its molding substantially alter, improperly terminate they imposed new or modified on the premises without alteration by or otherwise destroy cable operator- information collection requirements, 47 the MDU owner. owned home wiring. CFR Sections 76.701 and 76.702 could not become effective until approved by (c) The alternative provider shall be [FR Doc. 97–29514 Filed 11–13–97; 8:45 am] required to pay any and all installation the Office of Management and Budget BILLING CODE 6712±01±P costs associated with the (‘‘OMB’’). OMB approved these rule implementation of paragraphs (a) or (b) changes on October 29, 1997. of this section, including the costs of FEDERAL COMMUNICATIONS 2. The Federal Register summary restoring the MDU owner’s property to COMMISSION stated that the Commission would its original condition, and the costs of publish a document confirming the repairing any damage to the incumbent 47 CFR Part 76 effective date and notifying parties that provider’s wiring or other property. these rules have become effective. The 10. Section 76.806 is added to read as [MM Docket No. 92±258; FCC 97±156] amendments to 47 CFR Sections 76.701 follows: Cable Television Consumer Protection and 76.702 became effective on October 29, 1997. § 76.806 Pre-termination access to cable and Competition Act of 1992 home wiring. List of Subjects in 47 CFR Part 76 AGENCY: Federal Communications (a) Prior to termination of service, a Commission. Administrative practice and customer may: install or provide for the ACTION: Final rule; announcement of procedure, Cable television, Reporting installation of their own cable home effective date. and recordkeeping requirements. wiring; or connect additional home Federal Communications Commission. wiring, splitters or other equipment SUMMARY: The Commission’s within their premises to the wiring amendments to 47 CFR Sections 76.701 William F. Caton, owned by the cable operator, so long as and 76.702, which contained Acting Secretary. no electronic or physical harm is caused information collection requirements, [FR Doc. 97–29986 Filed 11–13–97; 8:45 am] to the cable system and the physical became effective on October 29, 1997. BILLING CODE 6712±01±P 61035

Proposed Rules Federal Register Vol. 62, No. 220

Friday, November 14, 1997

This section of the FEDERAL REGISTER The FLRA proposes to amend part Paperwork Reduction Act of 1995, 44 contains notices to the public of the proposed 2411, Availability of Official U.S.C. 3501, et seq. issuance of rules and regulations. The Information. The EFOIA requires List of Subjects in 5 CFR Part 2411 purpose of these notices is to give interested agencies to promulgate, through notice persons an opportunity to participate in the and comment rulemaking, regulations Administrative practice and rule making prior to the adoption of the final procedure, Freedom of information, rules. providing for expedited processing of initial requests that demonstrate a Government employees. compelling need. In addition, the For the reasons stated in the FEDERAL LABOR RELATIONS regulations must provide for expedited preamble, the FLRA is proposing to AUTHORITY processing in other cases when the adopt the following amendments to 5 agency determines it is warranted. CFR part 2411, Freedom of Information 5 CFR Part 2411 Compelling need is defined as cases Act Regulations: where ‘‘a failure to obtain requested 1. The authority citation for Part 2411 Revision of Freedom of Information records on an expedited basis could continues to read as follows: Act Regulations reasonably be expected to pose an Authority: 5 U.S.C. 552. imminent threat to the life or physical AGENCY: Federal Labor Relations safety of an individual; or with respect 2. Revise § 2411.8 to read as follows: Authority. to a request made by a person primarily § 2411.8 Modification of time limits. ACTION: Notice of proposed rulemaking. engaged in disseminating information, (a) In unusual circumstances as urgency to inform the public concerning SUMMARY: The Federal Labor Relations specified in this section, the time limits actual or alleged Federal Government Authority, the General Counsel of the prescribed with respect to initial activity.’’ 5 U.S.C. 552(a)(6)(E)(v). A Federal Labor Relations Authority, and determinations or determinations on requester seeking expedited processing the Federal Service Impasses Panel appeal may be extended by written can demonstrate a compelling need by (FLRA) are proposing to amend their notice from the officer handling the submitting a statement certified by the regulations relating to the Freedom of request (either initial or on appeal) to requester ‘‘to be true and correct to the Information Act to implement certain the person making such request setting best of such person’s knowledge and changes mandated by the Electronic forth the reasons for such extension and belief’’ that satisfies the statutory and the date on which a determination is Freedom of Information Act regulatory definitions of compelling expected to be dispatched. No such Amendments of 1996, (EFOIA). The need. 5 U.S.C. 552(a)(6)(E)(vi). FOIA regulatory changes proposed in this officers must notify the requester within notice shall specify a date that would notice will provide for expedited ten (10) calendar days whether or not result in a total extension of more than processing of information requests, as expedited processing has been granted. ten (10) working days. As used in this required by the EFOIA. If denied, any appeals made must be section, unusual circumstances means, DATES: Comments must be received on processed expeditiously. The proposed but only to the extent reasonably or before December 15, 1997. regulations would reflect these changes necessary to the proper processing of ADDRESSES: Mail or deliver written through modifications to § 2411.8, the particular request: (1) The need to search for and collect comments to Peter Constantine, Office including a retitling of the section and the requested records from field of Case Control, Federal Labor Relations the addition of a new paragraph (b). facilities or other establishments that are Authority, 607 14th Street, N.W., Room Executive Order 12886 separate from the office processing the 415, Washington, D.C. 20424–0001. This final regulation has been request; FOR FURTHER INFORMATION CONTACT: (2) The need to search for, collect and Shari Polur (202) 482–6695 ext. 340. reviewed in accordance with Executive Order 12886. It is not classified as appropriately examine a voluminous SUPPLEMENTARY INFORMATION: Through significant because it does not meet the amount of separate and distinct records the EFOIA, Pub. L. 104–231, 110 Stat. criteria for significant regulatory action which are demanded in a single request; 3048 (1996), Congress amended the established by the E.O. or FOIA 5 U.S.C. 552 et seq., to address, (3) The need for consultation, which among other things, the expedited Regulatory Flexibility Act Certification shall be conducted with all practicable processing of requests for information. Pursuant to section 605(b) of the speed, with another agency having a Specifically, Congress required agencies Regulatory Flexibility Act, 5 U.S.C. substantial interest in the determination to promulgate regulations under which 605(b), the FLRA has determined that of the request or among two or more requests for expedited processing would this proposed regulation will not have a components of the agency having be considered. In addition, Congress significant economic impact on a substantial subject matter interest mandated that agencies grant such substantial number of small entities. therein. requests upon a showing of compelling The amendments are procedural in (b) Expedited processing of a request need. nature and are required to implement for records, or an appeal of a denial of Written comments are solicited at the EFOIA. a request for expedited processing, shall address given above. Copies of all be provided when the requester written comments will be available for Paperwork Reduction Act of 1995 demonstrates a compelling need for the inspection and photocopying during The proposed regulations contain no information and in other cases as normal business hours, in the Office of additional information collection or determined by the officer processing the Case Control. record keeping requirement under the request. A requester seeking expedited 61036 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules processing can demonstrate a result in a risk of introducing animal services, laboratory and diagnostic compelling need by submitting a diseases into the United States, the procedures, vaccination practices, and statement certified by the requester to be importation into the United States of the administration of laws and true and correct to the best of such animals and animal products from those regulations to ensure against the person’s knowledge and belief and that countries would continue to be subject introduction of the diseases of concern satisfies the statutory and regulatory to certain restrictions. into each country through the definitions of compelling need. DATES: Consideration will be given only importation of live animals, meats, and Requesters shall be notified within ten to comments received on or before animal products. (10) calendar days after receipt of such January 13, 1998. Since this request was received and a request whether expedited processing, ADDRESSES: Please send an original and reviewed by APHIS, we have published or an appeal of a denial of a request for three copies of your comments to a final rule and policy statement in the expedited processing, was granted. As Docket No. 97–086–1, Regulatory Federal Register that establish used in this section, compelling need Analysis and Development, PPD, procedures for recognizing regions, means: APHIS, suite 3C03, 4700 River Road rather than only countries, for the (1) That a failure to obtain requested Unit 118, Riverdale, MD 20737–1238. purpose of importing animals and records on an expedited basis could Please state that your comments refer to animal products into the United States, reasonably be expected to pose an Docket No. 97–086–1. Comments and that establish procedures by which imminent threat to the life or physical received may be inspected at USDA, regions may request permission to safety of an individual; or room 1141, South Building, 14th Street export animals and animal products to (2) With respect to a request made by and Independence Avenue SW., the United States under specified a person primarily engaged in Washington, DC, between 8 a.m. and conditions, based on the regions’ disseminating information, urgency to 4:30 p.m., Monday through Friday, disease status (see 62 FR 56000–56033, inform the public concerning actual or except holidays. Persons wishing to October 28, 1997, Dockets 94–106–8 and alleged Federal Government activity. inspect comments are requested to call 94–106–9). The final rule is scheduled to become effective on November 28, Dated: November 7, 1997. ahead on (202) 690–2817 to facilitate entry into the comment reading room. 1997. The request from the EC Solly Thomas, addressed by this proposed rule is not FOR FURTHER INFORMATION CONTACT: Dr. Executive Director. a request to recognize regions, rather John Cougill, Staff Veterinarian, [FR Doc. 97–29914 Filed 11–13–97; 8:45 am] than countries, nor a request to establish Products Program, National Center for BILLING CODE 6727±01±P new import conditions based the Import and Export, VS, APHIS, 4700 disease status of any region. Therefore, River Road Unit 40, Riverdale, MD as we explained we would do in our 20737–1231, (301) 734–8695; or e-mail: final rule and policy statement on DEPARTMENT OF AGRICULTURE [email protected]. regionalization, we have handled and Animal and Plant Health Inspection SUPPLEMENTARY INFORMATION: evaluated this request in the traditional Service Background framework of recognizing a country as free or not free of a specified disease. If 9 CFR Part 94 The regulations in 9 CFR part 94 this proposed rule is adopted, the (referred to below as the regulations) [Docket No. 97±086±1] current regulations regarding prohibit or restrict the importation of importation of animals and animal Changes in Disease Status of Belgium, specified animals and animal products products from regions ‘‘free’’ of a France, Greece, Luxembourg, into the United States in order to specified disease will apply. Portugal, and Spain prevent the introduction of various animal diseases, including foot-and- Luxembourg and Portugal Free of AGENCY: Animal and Plant Health mouth disease (FMD), rinderpest, exotic Rinderpest and FMD Inspection Service, USDA. Newcastle disease (END), African swine Section 94.1(a)(1) of the regulations ACTION: Proposed rule. fever (ASF), hog cholera, swine provides that rinderpest or FMD exists vesicular disease (SVD), and bovine in all regions of the world except those SUMMARY: We are proposing to declare spongiform encephalopathy (BSE). listed in § 94.1(a)(2), which have been Luxembourg and Portugal free of These are dangerous and destructive declared to be free of those diseases. rinderpest and foot-and-mouth disease; communicable diseases of ruminants, The regulations in § 94.1(b) prohibit, Greece free of rinderpest; France, swine, and poultry. with certain specific exceptions, the Greece, Luxembourg, and Spain free of In this document, we are proposing to importation into the United States of exotic Newcastle disease; Portugal free declare Luxembourg and Portugal free of any ruminant or swine, or any fresh, of African swine fever; and Belgium, FMD and rinderpest; Greece free of chilled, or frozen meat of any ruminant France, and Portugal free of swine rinderpest; France, Greece, Luxembourg, or swine, that is from any region where vesicular disease. These proposed and Spain free of END; Portugal free of rinderpest or FMD exists, or that has actions are based on a request from the ASF; and Belgium, France, and Portugal entered a port in or otherwise transited European Commission’s Directorate free of SVD. We are proposing these a region where rinderpest or FMD General for Agriculture and on our actions in response to a request exists. Furthermore, the regulations in review of the supporting documentation submitted to the Animal and Plant § 94.2 restrict the importation of fresh, supplied with that request. These Health Inspection Service (APHIS) in chilled, or frozen products other than proposed actions would relieve some July 1997 by the European meat, and milk and milk products, of restrictions on the importation into the Commission’s (EC’s) Directorate General ruminants or swine that originate in or United States of certain animals and for Agriculture. With its request, the transit a region where rinderpest or animal products from those countries. EC’s Directorate General for Agriculture FMD exists. Additionally, the However, because of the status of those provided supporting documentation importation of organs, glands, extracts, countries with respect to other diseases, that included information about the and secretions of ruminants or swine and because of other factors that could capability of each country’s veterinary originating in a region where rinderpest Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61037 or FMD exists is restricted under the listed in § 94.11(a) are subject to these Greece Free of Rinderpest regulations in § 94.3, and the special restrictions because they: (1) Although Greece does not appear to importation of cured or cooked meat Supplement their national meat supply qualify to be declared free of both from a region where rinderpest or FMD by importing fresh, chilled, or frozen rinderpest and FMD, the EC’s exists is restricted under the regulations meat of ruminants or swine from regions Directorate General for Agriculture has in § 94.4. Finally, the regulations in 9 that are designated in § 94.1(a) as requested that Greece be declared free of CFR part 98 restrict the importation of infected with rinderpest or FMD; or (2) rinderpest. As noted above with regard ruminant and swine embryos and have a common land border with to both rinderpest and FMD, we will animal semen from a region where regions designated as infected with consider declaring a region to be free of rinderpest or FMD exists. rinderpest or FMD; or (3) import rinderpest if, among other things, there We will consider declaring a region to ruminants or swine from regions have been no cases of the disease be free of rinderpest and FMD if, among designated as infected with rinderpest other things, there have been no cases reported there for at least the previous or FMD under conditions less restrictive 1-year period and no vaccinations for of those diseases reported there for at than would be acceptable for least the previous 1-year period and no rinderpest have been administered to importation into the United States. swine or ruminants in that region for at vaccinations for rinderpest or FMD have Both Luxembourg and Portugal been administered to swine or least the previous 1-year period. There supplement their national meat supplies has not been a reported case of ruminants in that region for at least the by the importation of fresh, chilled, or previous 1-year period. There has never rinderpest in Greece since 1926, and frozen meat of ruminants and swine vaccinations for that disease have been been a reported case of rinderpest in from regions designated in § 94.1(a)(1) Luxembourg or Portugal, and the last prohibited in Greece since 1991. as regions in which rinderpest or FMD We have reviewed the documentation reported cases of FMD in Luxembourg exists. Furthermore, both Luxembourg and Portugal occurred in 1964 and 1984, submitted by the EC’s Directorate and Portugal import live ruminants and General for Agriculture in support of its respectively. Both Luxembourg and swine from regions not recognized as Portugal have prohibited vaccinations request that Greece be declared free of being free of FMD under conditions less rinderpest. Based on that for rinderpest and FMD since 1991. restrictive than would be acceptable for We have reviewed the documentation documentation, we believe that Greece importation into the United States. As a submitted by the EC’s Directorate qualifies to be designated as free of result, even though we propose to General for Agriculture in support of its rinderpest. We are, therefore, proposing designate Luxembourg and Portugal as request that Luxembourg and Portugal to amend § 94.1(a) to designate Greece being free of rinderpest and FMD, the be declared free of rinderpest and FMD. as a region free of rinderpest. To do so, meat and other animal products Based on that documentation, we we are proposing to add a new believe that Luxembourg and Portugal produced in these countries may be paragraph § 94.1(a)(3) in which Greece’s qualify to be designated as free of commingled with the fresh, chilled, or status as a region free of rinderpest rinderpest and FMD. Therefore, we are frozen meat of animals from a region in would be designated. proposing to add Luxembourg and which rinderpest or FMD exists, However, because Greece would be Portugal to the list in § 94.1(a)(2) of resulting in an undue risk of declared free of rinderpest only, and not regions declared free of rinderpest and introducing rinderpest or FMD into the FMD, the prohibitions and restrictions FMD. This proposed action would United States. found in §§ 94.1(b), 94.2, 94.3, and 94.4 remove the rinderpest- and FMD-based Therefore, we are proposing that meat on the importation from Greece of prohibition on the importation from and other animal products of ruminants ruminants and swine, and fresh, chilled, Luxembourg and Portugal of live and swine and the ship stores, airplane or frozen meat of ruminants and swine; ruminants and fresh, chilled, or frozen meals, and baggage containing these products other than meat; milk and milk meat from ruminants and would relieve meat or animal products imported into products; organs, glands, extracts, and restrictions on the importation, from the United States from Luxembourg and secretions; and cured or cooked meat of these two countries, of milk and milk Portugal be subject to the restrictions ruminants or swine would continue to products from ruminants. However, the specified in § 94.11 of the regulations, in apply. importation of fresh, chilled, or frozen addition to other applicable requirements of the U.S. Department of France, Greece, Luxembourg, and meat and edible products other than Spain Free of END meat (excluding gelatin, milk, and milk Agriculture’s Food Safety and products) from ruminants that have Inspection Service (FSIS) at 9 CFR Section 94.6(a)(1) of the regulations been in Portugal would continue to be Chapter III. Section 94.11 generally provides that END is considered to exist restricted under § 94.18 because requires that the meat and other animal in all regions of the world except those Portugal is listed in § 94.18 as a region products of ruminants and swine be: (1) listed in § 94.6(a)(2), which have been in which BSE exists. Additionally, the Prepared in an inspected establishment declared to be free of END. The importation from Luxembourg and that is eligible to have its products importation into the United States of Portugal of live swine and fresh, chilled, imported into the United States under any carcasses, or parts or products of or frozen meat from swine would the Federal Meat Inspection Act; and (2) carcasses, of poultry, game birds, or continue to be restricted under § 94.9 of accompanied by an additional other birds that are from a region where the regulations because these countries certificate, issued by a full-time salaried END is considered to exist, or that have have not been declared free of hog veterinary official of the national been imported from or moved into or cholera. government that is responsible for the through any region where END is We are also proposing to add health of the animals within the considered to exist, is subject to the Luxembourg and Portugal to the list in exporting region, assuring that the meat restrictions contained in § 94.6(c). In § 94.11(a) of regions declared free of or other animal products have not been addition, the importation into the rinderpest and FMD that are subject to commingled with or exposed to meat or United States of eggs (other than special restrictions on the importation other animal products originating in, hatching eggs) laid by poultry, game of their meat and other animal products imported from, or transported through a birds, or other birds that are from a into the United States. The regions region where rinderpest or FMD exists. region where END or Salmonella 61038 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules enteritidis (SE) phage-type 4 is may not be imported into the United restrictions in 9 CFR part 93 on the considered to exist or that have been States because the regulations in 9 CFR importation into the United States of imported from or moved into or through 93.505(a) require, among other things, live swine from Portugal because any region where END or SE phage-type that live domestic swine be Portugal remains affected with hog 4 is considered to exist is subject to the accompanied by a certificate showing cholera. restrictions contained in § 94.6(d). that the entire region of origin of the Belgium, France, and Portugal Free of Poultry eggs for hatching imported from swine is free of ASF and other specified SVD a region where END exists must be diseases. The importation of swine quarantined in accordance with casings from regions where ASF exists Section 94.12(a) of the regulations § 93.209(b). is likewise prohibited by 9 CFR 96.2(a) provides that SVD is considered to exist We will consider declaring a region to unless the swine casings originated in a in all regions of the world except those be free of END if there have been no region free of ASF and were processed listed in § 94.12(a), which have been reported cases of the disease in that in the region where ASF exists at a declared to be free of SVD. Paragraph (b) region for at least the previous 1-year facility that meets the criteria of of § 94.12 provides that no pork or pork period. There has been no documented § 94.8(a)(3)(iv) of the regulations. products may be imported into the case of END in France, Greece, or Spain We will consider declaring a region United States from a region where SVD during the reporting period that began free of ASF if there have been no exists unless the pork or pork product in 1994, and there has been no reported reported cases of the disease in that meets certain specified conditions and case of END in Luxembourg since 1995. region for at least the previous 1-year is not otherwise prohibited importation APHIS has reviewed the period. The last case of ASF in Portugal into the United States by the documentation submitted by the EC’s occurred in 1993. regulations. Directorate General for Agriculture in APHIS has reviewed the We will consider declaring a region to support of its request that France, documentation submitted by the EC’s be free of SVD if there have been no Greece, Luxembourg, and Spain be Directorate General for Agriculture in reported cases of the disease in that declared free of END. Based on that support of its request that Portugal be region for at least the previous 1-year documentation, we believe that France, declared free of ASF. Based on that period. The last cases of SVD in Greece, Luxembourg, and Spain qualify documentation, we believe that Portugal Belgium, France, and Portugal were to be designated as free of END. qualifies to be designated as free of ASF. reported in 1993, 1983, and 1995, Therefore, we are proposing to amend Therefore, we are proposing to amend respectively. § 94.6(a)(2) by adding France, Greece, § 94.8 by removing Portugal from the list APHIS has reviewed the Luxembourg, and Spain to the list of of regions in which ASF exists or is documentation submitted by the EC’s regions declared free of END. This reasonably believed to exist. This Directorate General for Agriculture in proposed action would relieve the proposed action would result in the support of its request that Belgium, restrictions of § 94.6(c) on the importation of pork and pork products France, and Portugal be declared free of importation of carcasses, or parts or from Portugal no longer being subject to SVD. Based on that documentation, we products of carcasses, of poultry, game the restrictions found in § 94.8 of the believe that Belgium, France, and birds, or other birds from those regulations. Another effect of this Portugal qualify to be designated as free countries, and would relieve the END- proposed action would be that the of SVD. Therefore, we are proposing to specific restrictions of § 94.6(d)(1)(ix) on importation of swine casings that amend § 94.12(a) by adding Belgium, the importation of eggs (other than originated in or were processed in France, and Portugal to the list of hatching eggs) laid by poultry, game Portugal would no longer be subject to regions declared free of SVD. This birds, or other birds from those the restrictions in 9 CFR 96.2(a). proposed action would relieve certain countries. This proposed action would However, Portugal is still considered restrictions on the importation of pork also relieve the quarantine requirements to be affected with hog cholera, so the and pork products from those countries. of § 93.209(b) for poultry hatching eggs importation of pork and pork products However, Belgium, France, and imported from France, Greece, from Portugal would remain subject to Portugal are still considered to be Luxembourg, and Spain. the restrictions in § 94.9 for hog cholera. affected with hog cholera, so pork and Similarly, the importation of dry-cured pork products from those countries Portugal Free of ASF pork products from Portugal would offered for importation into the United Section 94.8 of the regulations states continue to be subject to the regulations States would remain subject to the that ASF exists or is reasonably believed in § 94.17 due to hog cholera. In restrictions in § 94.9 for hog cholera. to exist in all the regions of Africa; in addition, the importation of pork and The importation of live swine, except Brazil, Cuba, Haiti, Malta, and Portugal; pork products from Portugal would for wild swine, from Belgium, France, and on the island of Sardinia, Italy. continue to be subject to the restrictions and Portugal would likewise continue to Paragraph (a) of § 94.8 provides that no in § 94.11 because, as discussed above be prohibited due to hog cholera in pork or pork products may be imported with respect to our proposal to declare accordance with § 94.10. Similarly, dry- into the United States from a region Portugal free of rinderpest and FMD, cured pork products from Belgium, where ASF exists unless the pork or Portugal would be listed in § 94.11(a) as France, and Portugal would continue to pork product meets certain specified a region that has been declared free of be subject to the regulations in § 94.17 conditions. Also, § 94.17 provides, in rinderpest and FMD, but from which the due to hog cholera. In addition, pork part, that dry-cured pork products may importation of all meat and other animal and pork products from Belgium, be imported into the United States from products is restricted due to the nature France, and Portugal would continue to a region where ASF exists if the dry- of its requirements for importing animal be subject to the restrictions in § 94.11 cured pork products meet the products from with regions affected because Belgium, France, and Portugal conditions specified in that section. with rinderpest or FMD or because they are among the regions listed (or, in the In addition to the restrictions on pork have a common land border with a case of Portugal, would be listed) in and pork products contained in the region affected with rinderpest or FMD. § 94.11(a) that have been declared free regulations in part 94, live domestic Finally, declaring Portugal free of ASF of rinderpest and FMD, but from which swine from a region where ASF exists would not relieve any of the current the importation of all meat and other Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61039 animal products is restricted due to the inspection certificate and a certification this proposed rule on the importation of nature of their requirements for issued by a full-time salaried veterinary pork and pork products and live swine importing animal products from regions official of the national government that would be minimal, and thus the affected with rinderpest or FMD or is responsible for the health of the potential impact on the domestic because they have a common land animals within the exporting region, producers of pork and pork products border with a region affected with stating that certain precautions have and swine would be minimal. rinderpest or FMD. (Portugal is not been taken so that the pork or pork Ruminants and Ruminant Products currently on the list in § 94.11(a), but, as product has not been commingled with discussed above, we are proposing to or exposed to animals, pork, or pork This proposed rule would declare add Portugal to that list as part of our products originating in, or transported Greece free of rinderpest, but that proposal to declare Luxembourg and through, a region in which SVD is country is still considered to be affected Portugal free of rinderpest and FMD.) considered to exist. with FMD. Similarly, Portugal would be We are also proposing to amend declared free of rinderpest and FMD, § 94.13 by adding Belgium, France, and Miscellaneous but that country is still considered to be Portugal to the list of regions that have In §§ 94.3 and 94.4, reference is made affected with BSE. Because imports of been declared free of SVD, but from to articles ‘‘originating in any region ruminants and ruminant products from which the importation of pork and pork designated in § 94.1.’’ Although the regions with FMD and BSE are products is restricted. The regions listed intent of those sections is to restrict the restricted, this proposed rule would not in § 94.13 are subject to these importation of certain articles from lead to a substantive change in the restrictions because they: (1) regions where rinderpest or FMD exists, restrictions imposed on the importation Supplement their national pork supply the phrase ‘‘designated in § 94.1’’ could of ruminants and ruminant products by importing fresh, chilled, or frozen also be interpreted as referring to those from Greece and Portugal. pork from regions where SVD is regions declared free of rinderpest and By declaring Luxembourg free of considered to exist; (2) have a common FMD, since those regions are listed in rinderpest and FMD, this proposed rule border with regions where SVD is § 94.1(a)(2). To make the intent of those would reduce the restrictions placed on considered to exist; or (3) have certain two sections clear, we are proposing to the importation of ruminants and import requirements that are less amend those sections so that they refer ruminant products from Luxembourg. restrictive than are acceptable to the to ‘‘regions where rinderpest or foot- However, that proposed change in United States. and-mouth disease exists, as designated disease status should have a minimal Belgium, France, and Portugal all in § 94.1.’’ We would also amend effect on the amount of ruminants and supplement their national pork supplies §§ 94.1(c) and 94.11(a), where reference ruminant products imported into the by importing fresh, chilled, or frozen is made to § 94.1(a); for the sake of United States from Luxembourg. pork from regions where SVD is accuracy, those paragraphs should The cattle industry in Luxembourg is considered to exist. In addition, France specifically refer to § 94.1(a)(2). very small relative to the U.S. domestic has a common land border with Italy, market. Cattle and buffalo inventories which is designated in § 94.12(a) as a Executive Order 12866 and Regulatory for 1996 were more than 103 million region where SVD exists. Furthermore, Flexibility Act head in the United States (‘‘Agricultural Belgium, France, and Portugal have This proposed rule has been reviewed Statistics,’’ 1997), compared to fewer certain import requirements that are less under Executive Order 12866. For this than 3.4 million in Belgium and restrictive than are acceptable to the action, the Office of Management and Luxembourg (those two nations are United States. As a result, even though Budget has waived its review process reported collectively in the United Belgium, France, and Portugal appear to required by Executive Order 12866. Nations’ Food and Agriculture qualify for designation as regions free of This proposed rule would amend the Organization (FAO) Yearbook). Also, of SVD, there is potential for pork and regulations in part 94 by declaring the 2 million cattle and calves that were pork products produced in Belgium, Luxembourg and Portugal free of imported into the United States in 1996, France, and Portugal to be commingled rinderpest and FMD; Greece free of more than 99 percent were from Canada with fresh, chilled, or frozen pork from rinderpest; France, Greece, Luxembourg, and Mexico. Sheep and goat inventories a region where SVD exists. This and Spain free of END; Portugal free of are also much smaller in Luxembourg potential for commingling constitutes an ASF; and Belgium, France, and Portugal than in the United States. According to undue risk of introducing SVD into the free of SVD. the FAO, there were 8.9 million sheep United States. and 2 million goats in the U.S. in 1995, Therefore, we are proposing that pork Pork and Pork Products and Swine as opposed to 150,000 sheep and 9,000 and pork products, as well as any ship’s Although this proposed rule would goats in Belgium and Luxembourg. The stores, airplane meals, and baggage declare Luxembourg and Portugal free of United States is also a strong net containing such pork, offered for rinderpest and FMD; Greece free of exporter of sheep and goats, with 48,792 importation into the United States from rinderpest; Belgium, France, and head imported and 397,395 head Belgium, France, or Portugal be subject Portugal free of SVD; and Portugal free exported in 1996 (‘‘World Trade Atlas,’’ to the restrictions specified in § 94.13 of of ASF, all those countries are still June 1997). Of the sheep that the United the regulations and to the applicable considered affected with hog cholera, States does import, more than 99 requirements contained in the FSIS and Greece is still considered to be percent are from Canada and Mexico regulations at 9 CFR chapter III. Section affected with FMD. Because of this, this (‘‘World Trade Atlas,’’ June 1997). 94.13 requires, in part, that pork and proposed rule would not lead to any Luxembourg exported no live ruminants pork products, except those treated in substantive relaxation of restrictions to the United States in 1996. In fact, accordance with § 94.12(b), be: (1) imposed on the importation of pork and there were fewer than 100 cattle, sheep Prepared in an inspected establishment pork products and live swine from those and goats imported from the European that is eligible to have its products countries, as these products would Union in 1996. Western Europe is not a imported into the United States under continue to be restricted based on the significant source of live ruminants for the Federal Meat Inspection Act; and (2) presence of hog cholera and, in the case the United States, and any importation accompanied by a foreign meat of Greece, FMD. Therefore, the effect of of live ruminants from Luxembourg as 61040 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules a result of this proposed rule likely Bird and Poultry Products and calf farms would be considered would be negligible. The proposed rule would declare small entities. The vast majority of the The effect of this proposed rule on the France, Greece, Luxembourg, and Spain domestic hog and pig farms qualify as importation of ruminant meat and meat free of END. This proposed action small entities (96.3 percent in 1992). products should also be minimal. The would relieve restrictions on the Eighty-seven percent of poultry farms 1995 production of beef, veal, mutton, importation of carcasses, or parts or would be considered small entities in lamb and goat meat for Belgium and products of carcasses, of poultry, game 1992 (‘‘1992 Census of Agriculture,’’ U.S. Department of Commerce, 1993). Luxembourg was approximately 3 birds, or other birds from those The SBA’s guidelines state that a percent of the U.S. production of 11.6 countries, and would relieve certain ‘‘small’’ producer of poultry meat million metric tons for that year (‘‘FAO restrictions on the importation of eggs (Standard Industrial Classification (SIC) Yearbook,’’ 1995). The United States (other than hatching eggs) laid by 2015, poultry slaughtering and imports only a small portion of its poultry, game birds, or other birds from processing) is one employing fewer than overall supply of these products, an those countries. This proposed action 500 workers. In 1992, 74 percent of 591 amount equal to about 6 percent of would also relieve the quarantine poultry slaughtering and processing production. In addition, the United requirements for poultry hatching eggs establishments were considered small States imports very little ruminant meat imported from France, Greece, entities. These small entities accounted and meat products from Luxembourg or Luxembourg, and Spain. for approximately 30 percent of the total from Western Europe in general. Egg production in those four countries value of shipments of the industry, $7.2 Moreover, nearly 85 percent of the is considerable: In 1995, the reported billion. imports that come into the United States egg production in Belgium and are from Australia, Canada, and New The SBA’s guidelines state that a Luxembourg was 3,858 million; in ‘‘small’’ producer of pork and ruminant Zealand. Because we believe that it is France, 16,911 million; in Greece, 2,600 unlikely that Luxembourg would export products (part of SIC 2011 or 2013, meat million; and in Spain, 9,983 million packing plants) is one employing fewer a significant portion of its comparatively (‘‘Agriculture Statistics,’’ 1997). U.S. small meat production exclusively to than 500 workers. In 1992, 97 percent of production is also large, 74,280 million the 1,367 meat packing establishments the United States, any effect on in 1995. In addition, the U.S. imports domestic prices or supplies would in SIC 2011 were considered small few eggs, with the total amount being entities. These small establishments likely be negligible. equal to less than 0.1 percent of U.S. The importation of dairy products accounted for approximately 40 percent production. We believe that it is of the total value of shipments of the from Luxembourg into the United States unlikely that these countries would should be at most minimally affected by industry, $50.4 billion. Ninety-eight redirect a significant portion of their percent of the 1,264 establishments in this proposed rule. Dairy product production toward such a small U.S. production in Luxembourg is small SIC 2013 were considered small entities import market. in 1992. These producers accounted for relative to that of the United States. Total poultry meat production in Milk production in Belgium and 84 percent of the total value of France, Greece, Luxembourg, and Spain shipments of the industry, $19.97 Luxembourg was less than 5 percent the in 1995 was about 3.5 million metric size of U.S. production in 1995 (‘‘FAO billion. tons, or about 26 percent the size of U.S. Although the majority of the domestic Yearbook,’’ 1995). For dairy products in production of 13.8 million metric tons. entities potentially affected by this general, we believe that it is unlikely However, the United States is a very proposed rule are small, there should be that Luxembourg would redirect a strong net exporter of poultry meat, with only a minimal change in the level of significant portion of its production imports of only 3,546 metric tons and imports that may compete with the exclusively to the United States, which exports of more than 2 million metric output of these small entities, and thus is a significant net exporter of those tons in 1996 (‘‘World Trade Atlas,’’ June there would be a minimal impact on any products. Belgium and Luxembourg do 1997). Very few of the imports are from domestic producer of these products, export significant quantities of butter western Europe. Moreover, more than whether small or large. and dried milk, but those products may 99 percent of U.S. poultry meat imports Under these circumstances, the currently be exported to the United originated in Canada. We do not expect Administrator of the Animal and Plant States under the current regulations. that these countries would redirect a Health Inspection Service has Therefore, the impact on domestic dairy significant amount of poultry meat determined that this action would not producers should be minimal. toward such a small U.S. import market. have a significant economic impact on The potential effect of this proposed a substantial number of small entities. rule on the importation into the United Impact on Small Entities States of ruminant embryos and animal The Regulatory Flexibility Act Executive Order 12988 semen would also likely be minimal. requires that the Agency specifically This proposed rule has been reviewed The United States is a net exporter of consider the economic impact under Executive Order 12988, Civil both bovine semen and cattle embryos. associated with the proposed rule on Justice Reform. If this proposed rule is In 1996, the value of U.S. bovine semen small entities. Those likely to be adopted: (1) All State and local laws and and cattle embryo imports was $7.7 affected by this proposed rule are those regulations that are inconsistent with million and $701,000, respectively, entities engaged in the production of this rule will be preempted; (2) no while the value of U.S. exports of live swine, pork and pork products, live retroactive effect will be given to this bovine semen and cattle embryos was ruminants, meat, meat products, and rule; and (3) administrative proceedings $63.1 million and $12.6 million dairy products derived from ruminants, will not be required before parties may respectively (‘‘World Trade Atlas,’’ June and poultry products. file suit in court challenging this rule. 1997). Given this trade balance and the The Small Business Administration’s size difference between the cattle (SBA’s) definition of a ‘‘small’’ cattle, Paperwork Reduction Act industries of the United States and swine, or poultry farm is one whose This proposed rule contains no new Luxembourg, the amount imported of total sales is less than $0.5 million information collection or recordkeeping each will likely be minimal. annually. In 1992, 97.8 percent of cattle requirements under the Paperwork Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61041

Reduction Act of 1995 (44 U.S.C. 3501 § 94.6 [Amended] DEPARTMENT OF HEALTH AND et seq.). 5. In § 94.6, paragraph (a)(2) would be HUMAN SERVICES List of Subjects in 9 CFR Part 94 amended by adding the words ‘‘France, Food and Drug Administration Greece,’’ immediately after the word Animal diseases, Imports, Livestock, ‘‘Finland,’’; by adding the word Meat and meat products, Milk, Poultry 21 CFR Part 201 and poultry products, Reporting and ‘‘Luxembourg,’’ immediately after the recordkeeping requirements. word ‘‘Iceland,’’; and by adding the [Docket No. 77N±094W] Accordingly, 9 CFR part 94 would be word ‘‘Spain,’’ immediately after the words ‘‘Republic of Ireland,’’. amended as follows: RIN 0910±AA01 § 94.8 [Amended] PART 94ÐRINDERPEST, FOOT-AND- Over the-Counter Drug Products MOUTH DISEASE, FOWL PEST (FOWL 6. In § 94.8, the introductory text of Containing Analgesic/Antipyretic PLAGUE), EXOTIC NEWCASTLE the section would be amended by Active Ingredients for Internal Use; DISEASE, AFRICAN SWINE FEVER, removing the words ‘‘Malta, and Required Alcohol Warning HOG CHOLERA, AND BOVINE Portugal’’ and adding in their place the SPONGIFORM ENCEPHALOPATHY: words ‘‘and Malta’’. AGENCY: Food and Drug Administration, PROHIBITED AND RESTRICTED HHS. IMPORTATIONS § 94.11 [Amended] ACTION: Notice of proposed rulemaking. 7. In § 94.11, paragraph (a), the first 1. The authority citation for part 94 SUMMARY: The Food and Drug would continue to read as follows: sentence would be amended by adding the word ‘‘Luxembourg,’’ immediately Administration (FDA) is issuing a notice Authority: 7 U.S.C. 147a, 150ee, 161, 162, of proposed rulemaking that would after the word ‘‘Japan,’’; by adding the and 450; 19 U.S.C. 1306; 21 U.S.C. 111, 114a, establish alcohol warnings for all over- word ‘‘Portugal,’’ immediately after the 134a, 134b, 134c, 134f, 136, and 136a; 31 the-counter (OTC) drug products U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR word ‘‘Poland,’’; and by removing the containing internal analgesic/antipyretic 2.22, 2.80, and 371.2(d). reference ‘‘§ 94.1’’ and adding the active ingredients labeled for adult use. reference ‘‘§ 94.1(a)(2)’’ in its place. 2. Section 94.1 would be amended as The proposed warning statements follows: § 94.12 [Amended] advise consumers who have a history of a. In paragraph (a)(1), the words ‘‘or heavy alcohol use or abuse to consult a (a)(3)’’ would be added immediately 8. In § 94.12, paragraph (a) would be physician for advice about the use of after the words ‘‘paragraph (a)(2)’’. amended by adding the word OTC internal analgesic/antipyretic drug b. In paragraph (a)(2), the word ‘‘Belgium,’’ immediately after the words products. A warning would be required ‘‘Luxembourg,’’ would be added ‘‘The Bahamas,’’; by adding the word for all OTC internal analgesic/ immediately after the word ‘‘Japan,’’ ‘‘France,’’ immediately after the word antipyretic drug products marketed and the word ‘‘Portugal,’’ would be ‘‘Finland,’’; and by adding the word under an OTC drug monograph or an added immediately after the word ‘‘Portugal,’’ immediately after the word approved new drug application (NDA). ‘‘Poland,’’; ‘‘Panama,’’. FDA is issuing this notice of proposed rulemaking after considering the reports c. A new paragraph (a)(3) would be § 94.13 [Amended] added to read as set forth below. and recommendations of its Nonprescription Drugs Advisory d. In the introductory text of 9. In § 94.13, the introductory text of Committee (NDAC) and Arthritis Drugs paragraph (c), the words ‘‘paragraph (a) the section would be amended by Advisory Committee (ADAC), public of’’ would be removed and the words adding the word ‘‘Belgium,’’ comments on the proposed rule for OTC ‘‘paragraph (a)(2) of’’ would be added in immediately after the words ‘‘The internal analgesic, antipyretic, and their place. Bahamas,’’; by adding the word antirheumatic drug products, and other ‘‘France,’’ immediately after the word § 94.1 Regions where rinderpest or foot- available information. ‘‘Denmark,’’; and by adding the word and-mouth disease exists; importations DATES: Written comments by January 28, prohibited. ‘‘Portugal,’’ immediately after the words ‘‘Northern Ireland,’’. 1998. Written comments on the agency’s (a) * * * economic impact determination by (3) The following regions are declared Done in Washington, DC, this 12th day of January 28, 1998. The agency is to be free of rinderpest: Greece. November 1997. proposing that any final rule based on * * * * * Terry L. Medley, this proposal be effective 6 months after Administrator, Animal and Plant Health the date of its publication in the Federal § 94.3 [Amended] Inspection Service. Register. 3. Section 94.3 would be amended by [FR Doc. 97–30105 Filed 11–13–97; 8:45 am] ADDRESSES: Written comments to the adding the words ‘‘where rinderpest or BILLING CODE 3410±34±P Dockets Management Branch (HFA– foot-and-mouth disease exists, as’’ 305), Food and Drug Administration, immediately before the word 12420 Parklawn Dr., rm. 1–23, ‘‘designated’’. Rockville, MD 20857. § 94.4 [Amended] FOR FURTHER INFORMATION CONTACT: 4. In § 94.4(a), the introductory text of Debbie L. Lumpkins, Center for Drug the paragraph would be amended by Evaluation and Research (HFD–560), adding the words ‘‘where rinderpest or Food and Drug Administration, 5600 foot-and-mouth disease exists, as’’ Fishers Lane, Rockville, MD 20857, immediately before the word 301–827–2241. ‘‘designated’’. SUPPLEMENTARY INFORMATION: 61042 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

I. Background to the hepatotoxicity of acetaminophen and aspirin’s ability to cause GI In the Federal Register of July 8, 1977 was not necessarily due to liver bleeding or the lack of a reference to (42 FR 35346), FDA published, under cirrhosis but resulted from the such effect in labeling. induction of microsomal enzymes by § 330.10(a)(6) (21 CFR 330.10(a)(6)), an II. Summary of the Comments Received the chronic use of alcohol. However, the advance notice of proposed rulemaking In response to the proposed rule, the to establish a monograph for OTC Panel did not recommend a warning concerning the use of normal doses of agency received comments concerning internal analgesic, antipyretic, and the need for an alcohol warning for antirheumatic drug products, together acetaminophen by individuals with a history of liver disease or chronic acetaminophen. One comment with the recommendations of the recommended that the labeling of OTC Advisory Review Panel on OTC Internal alcohol abuse. The Panel’s recommended label warning on liver drug products containing Analgesic and Antirheumatic Drug acetaminophen include the following Products (the Panel), which was the damage referred only to the well- documented injury that can occur with warning: ‘‘Do not drink alcoholic panel responsible for evaluating data on beverages while taking acetaminophen. the active ingredients in these drug overdose. The Panel recommended the following warning: ‘‘Do not exceed To do so may increase the chance of products. In that notice, the Panel liver damage, especially if you drink discussed the effects of alcohol recommended dosage because severe liver damage may occur.’’ large amounts of alcoholic beverages ingestion on the safe use of OTC regularly.’’ Citing 75 incidences of liver internal analgesic, antipyretic, and In the Federal Register of November 16, 1988 (53 FR 46204), the agency damage in alcohol abusers who antirheumatic drug products containing consumed acetaminophen for aspirin and acetaminophen (42 FR published a proposed rule (tentative final monograph) for OTC internal therapeutic reasons (Refs. 1 through 27), 35346 at 35395). the comment asserted that the reports Based on the data evaluated, the Panel analgesic, antipyretic, and antirheumatic drug products. In the strongly suggest that alcohol abuse found evidence of a possible synergism potentiates acetaminophen’s liver between alcohol and aspirin’s ability to preamble to the proposed rule, the agency responded to a number of toxicity. cause gastrointestinal (GI) bleeding (42 The comment stated that the clinical FR 35346 at 35395). The Panel stated comments concerning the Panel’s recommended liver warning for observation of increased liver toxicity of that the data supported the hypothesis acetaminophen in alcohol abusers has that aspirin may enhance or potentiate acetaminophen and the need for a warning on the increased risk of liver been confirmed by experimental data in bleeding from GI lesions, even though animals and humans (Refs. 22 and 28 toxicity when acetaminophen is taken aspirin alone may not initiate the lesion. through 46). In the comment’s view, with substances or drugs that induce However, the Panel stopped short of these experimental data demonstrate microsomal enzyme activity, i.e., recommending a warning concerning that: (1) Alcohol has a significant effect alcohol, barbiturates, or prescription the use of aspirin with alcohol. on acetaminophen metabolism; (2) drugs for epilepsy (53 FR 46204 at The Panel did not receive data on the chronic alcohol ingestion has been 46213 through 46218). The agency effect of alcohol use with other shown to induce microsomal enzymes, found that the available data did not salicylates. However, based on its thereby increasing the formation of the provide a sufficient basis to require such evaluation of the available data, the toxic intermediate metabolite of a warning. Panel concluded that carbaspirin acetaminophen, known as N-acetyl-p- The agency also received a number of calcium, choline salicylate, magnesium benzoquinoneimine (NAPQI); and (3) comments opposed to warnings that cite salicylate, and sodium salicylate all chronic alcohol ingestion interferes with organs of the body as possible cites for have safety profiles similar to aspirin the detoxification of NAPQI by damage from acute overdoses of internal and should bear similar labeling (42 FR depleting hepatic glutathione (GSH). 35346 at 35417 through 35422). analgesic/antipyretic drug products. The Citing information indicating that In evaluating the safety of agency agreed with the comments and alcohol is consumed by two-thirds of acetaminophen (42 FR 35346 at 35413 determined that warnings for the American population (12 percent of to 35415), the Panel considered data on acetaminophen need not specify the this population considered to be heavy the metabolism of acetaminophen in the toxic effects on particular organs of the drinkers (Ref. 47) and that presence of various types of liver body that can be caused by acute acetaminophen is widely available disease, including alcoholic liver overdose of a drug, as in a suicide (present in over 200 OTC drug cirrhosis. The Panel determined that the attempt. However, the agency further products), the comment asserted that decreased metabolism of acetaminophen stated (53 FR 46204 at 46213): the concurrent use of alcohol and by the usual principal mechanisms * * * the warnings should include specific acetaminophen can be predicted to be information on the known side effects or (glucuronidation and sulfation) adverse reactions that may occur from use of extraordinarily common. The comment observed in some people with chronic the drug according to labeled directions, as suggested that the use of acetaminophen liver disease could potentially increase well as potential dangers that may occur if with alcohol may be even greater the toxicity of acetaminophen by the labeled directions are exceeded. because heavy promotion stating that increasing the relative fraction The agency concludes that when medical acetaminophen causes less stomach metabolized through the other evidence shows that toxicity is associated irritation than aspirin has made it the pathway(s) leading to the toxic with the use of an OTC drug, either within preferred OTC internal analgesic/ metabolite. The Panel found that the its recommended dosage or when used antipyretic used in the presence of evidence suggested that the overall beyond its recommended time limit or alcohol-related gastric upset. The dosage (except for acute overdose), it is elimination of acetaminophen by appropriate to warn consumers of the comment asserted that these new data conjugation is decreased in alcohol potential toxicity. In some cases it may be suggest that alcohol abusers appear to be abusers and is similar to that observed necessary to include organ-specific warnings at greater risk of hepatotoxicity from the in cases of decreased liver function. The as well as general labeling statements. therapeutic use of acetaminophen. Panel suggested, however, that this The agency received no comments Accordingly, the comment decreased conjugation and the increased concerning the Panel’s comments about recommended that the labeling of these susceptibility of chronic alcohol abusers a possible synergism between alcohol OTC drug products be strengthened to Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61043 ensure that consumers who abuse Lauterberg and Velez (Ref. 65) in which the effect of diet on glutathione levels. alcohol are not exposed to unnecessary no evidence of microsomal induction A copy of this information is on file in daily use of acetaminophen. The was found in heavy drinkers. Moreover, the Dockets Management Branch (Ref. comment added that warnings the comment cited additional studies 69). Interested parties were also given concerning the use of acetaminophen by (Refs. 66, 67, and 68) that it asserted the opportunity to present their alcohol abusers are included in the demonstrated a reduction of microsomal positions. United States Pharmacopeial Dispensing enzyme activity in subjects with liver The agency asked NDAC to consider: Information (Refs. 48 and 49). disease (including alcoholic hepatitis). (1) Whether the data supported the need In addition to its proposed warning, The comment noted the results of a for an alcohol warning for OTC drug the comment suggested that the study in mice by Mitchell et al. (Ref. 35) products containing acetaminophen; (2) maximum daily dose of acetaminophen that demonstrated for covalent binding the population at risk in terms of be reduced from 4 to 2 grams (g) per day or hepatic necrosis to occur GSH levels alcohol consumption, e.g., people who for this segment of the population. need to be reduced to approximately 20 rarely drink, social drinkers, or alcohol However, the comment did not provide to 30 percent of normal. The comment abusers, and the acetaminophen dose data to support the reduced maximum asserted that a reduction of such ingested; (3) any special benefit/risk daily dose. The comment recommended magnitude is unlikely except in severe considerations concerning the use of an the following revision to the dosing malnutrition. Concerning the cited alcohol warning in the population at directions proposed for acetaminophen animal data, the comment noted that in risk, e.g., will alcohol abusers switch to in § 343.50(d)(2) (21 CFR 343.50(d)(2)) the vast majority of studies the amounts other OTC internal analgesic/antipyretic of the tentative final monograph: ‘‘If you of acetaminophen ingested would ingredients that have equivalent or drink large amounts of alcoholic correspond to overdose amounts in greater risks; (4) the type of information beverages regularly, do not exceed 2 humans. that should be included in an alcohol grams of acetaminophen (4 to 6 tablets) The comment concluded by stating warning, e.g., organ-specific a day.’’ that the safety profile of acetaminophen information, description of alcohol The comment subsequently submitted in alcohol abusers should be evaluated amount, or other information; (5) additional data to support its in the context of their inclination to whether the data are sufficient to recommendations that included the develop gastritis, gastroduodenal support a reduced maximum daily following: (1) Reports of acetaminophen ulceration, hepatic cirrhosis, acetaminophen dose for alcohol abusers; hepatotoxicity in alcohol abusers or impairment of coagulation mechanisms, and (6) if so, what the reduced associated with Psittacosis (Refs. 50 portal hypertension, and GI hemorrhage. maximum daily dose should be. through 53), (2) a retrospective study of Citing the fact that doctors frequently NDAC concluded that alcohol abusers the effects of chronic alcohol intake on recommend acetaminophen to their or heavy drinkers are at increased risk the prognosis and outcome of alcohol abusing patients because it does for developing liver toxicity when using acetaminophen overdose (Ref. 54), and not cause GI irritation or have platelet acetaminophen. Based on this (3) a study of acetaminophen inhibiting effects, the comment asserted conclusion, NDAC recommended that metabolism in alcohol abusers (Ref. 55). that an alcohol warning for OTC drug an alcohol warning informing heavy Two comments disagreed with the products containing acetaminophen alcohol users or abusers of their need for the proposed warning, arguing would be contrary to the public interest. increased risk from the use of that the existing data provide no The comment suggested that such a acetaminophen be included in the rational basis for a warning. Citing its warning might encourage individuals labeling of such products. review of the scientific literature (Ref. who abuse alcohol to use other OTC Recommending that the exact wording 56), one comment questioned the internal analgesic/antipyretic drug of such a warning be developed by the number of cases of acetaminophen- products containing ingredients that agency, NDAC advised that the warning induced liver toxicity due to the carry a greater risk of injury. should specifically refer to possible ingredient’s therapeutic use by alcohol liver damage. However, NDAC did not abusers. The comment stated that the III. The Advisory Committees Meetings recommend a reduced maximum daily majority of the reports involved subjects The agency subsequently asked NDAC dose of acetaminophen for alcohol with a history of alcohol abuse and use for advice on the need for an alcohol abusers. NDAC was concerned that an of amounts of acetaminophen far in warning for OTC drug products alcohol warning on OTC drug products excess of the maximum daily containing acetaminophen. On June 29, containing acetaminophen in the therapeutic dose. The comment 1993, NDAC met to consider the issue. absence of a similar warning on contended that the reliability of the The agency provided NDAC the products containing other internal history of acetaminophen use and the following data and information: (1) The analgesic/antipyretic ingredients would regularity of dosing included in these history of the agency’s evaluation of the cause alcohol abusers to switch to reports was questionable. The comment issue, (2) a summary of issues raised by products containing those other cited six additional published articles comments in response to the tentative ingredients, which may have equivalent (Refs. 57 through 62) containing reports final monograph, (3) published reports or greater risks. Therefore, NDAC of acetaminophen-induced liver toxicity of acetaminophen-induced liver toxicity recommended that the agency not in alcohol abusers and contended that in alcohol users at various implement an alcohol warning for OTC none of these reports supports an acetaminophen doses, (4) data on the drug products containing alcohol warning. pharmacokinetics of acetaminophen acetaminophen until NDAC had a One of the comments disagreed with metabolism in alcohol abusers, (5) data chance to consider data on the risk of the assertion that experimental data in on microsomal enzyme induction in alcohol use with other internal animals and humans have demonstrated subjects with liver disease, (6) analgesic/antipyretic ingredients (Ref. chronic microsomal induction or epidemiological data on the effect of 70). increased NAPQI production in alcohol abuse on acetaminophen On September 8, 1993, NDAC and association with acetaminophen-alcohol overdose, (7) animal data on the effects ADAC (the Committees) met jointly to use. The comment cited studies by of ethanol on acetaminophen consider data on the risk of the use of Critchley et al. (Refs. 63 and 64) and metabolism, and (8) animal studies of aspirin and other OTC analgesics by 61044 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules heavy alcohol users or abusers. The IV. Summary of Comments on the The comments asserted that the agency provided the Committees the Committees’ Recommendations Committees misunderstood the agency’s following data and information: (1) proposed warning in § 343.50(c)(1)(v)(B) Published and unpublished In response to the Committees’ that advises against the use of aspirin by recommendations, the agency received epidemiological data on the risk of persons that have stomach problems 11 comments. Several comments from a upper GI bleeding associated with the that persist or recur, or have ulcers, or manufacturers’ association urged the bleeding problems, without consulting a use of alcohol and aspirin, ibuprofen, agency to reject the Committees’ and naproxen sodium; (2) data on the doctor. The comments noted that most recommendation for an alcohol warning of the data submitted related to upper GI additive effects of these ingredients and for OTC aspirin drug products. One alcohol on the GI tract; (3) data on the bleeding by persons with existing GI comment suggested that such a warning disease. The comments advised FDA to ability of alcohol to potentiate aspirin- may jeopardize the compliance of prolonged bleeding times; (4) data on base its decision on the available individuals on low-dose aspirin scientific data and concluded that those the effect of aspirin on ethanol regimens for cardiovascular indications. data do not demonstrate that heavy pharmacokinetics; and (5) the Panel’s Other comments contended that the alcohol users or abusers, with no conclusions on the safety of the OTC recommendation was not supported by preexisting ulcers or recurrent stomach use of acetaminophen, aspirin, reliable scientific data, but reflected or bleeding problems, are at an carbaspirin calcium, choline salicylate, concerns about unsubstantiated risks increased risk of upper GI bleeding from magnesium salicylate, and sodium from the use of aspirin by individuals the use of OTC aspirin drug products. salicylate. A copy of this information is with a history of alcohol use. These In response to the comments’ on file in the Dockets Management concerns, the comments asserted, were assertions, the agency received reply Branch (Ref. 71). Interested parties were based on submissions that included comments from members of the also given the opportunity to present inaccurate summaries of studies without Committees (Ref. 80). One member their positions. raw data and erroneous projections of stated that the Committees’ final morbidity and mortality based on The agency asked the Committees to decision was based on the information incorrect assumptions. The comment available and was justified. Another consider the following in evaluating the suggested that these distortions had a data: (1) Whether the data are sufficient member contended that if significant impact on the Committees’ acetaminophen is to have a warning, to support an alcohol warning for OTC recommendations. drug products containing aspirin, then all OTC internal analgesic/ In support of its contentions, the antipyretic drug products should have a ibuprofen, and naproxen sodium; (2) comment noted: (1) Criticisms of the warning, preferably the same for all whether the data are sufficient to available published data made by some products. A third member expressed support an alcohol warning for other Committee members during disagreement with the Committees’ salicylates (carbaspirin calcium, choline deliberations, and (2) specific comments recommendation, explaining that a test salicylate, magnesium salicylate, or made by an agency reviewer concerning of enhanced risk should be an odds ratio sodium salicylate); (3) the type of unpublished epidemiological data substantially greater than one. The information an alcohol warning should presented to the Committees (Ref. 73). member further recommended that an include, i.e., organ specific information The comment pointed out that most of odds ratio of two or greater should be or statement of risk; and (4) the type of the studies were uniformly rejected by required, and the difference from one information that should appear in the the Committees’ members or the should be statistically significant. labeling of combination drug products agency’s reviewer, and thus the meeting A number of comments from the containing aspirin and acetaminophen. produced no reliable evidence on which investigators for three of the The Committees concluded that the to justify a label warning regulation. unpublished epidemiological studies use of aspirin, ibuprofen, and naproxen The comments also included critical presented to the Committees addressed sodium increases the risk of upper GI assessments of the unpublished point by point the criticisms raised bleeding in heavy alcohol users or epidemiological data presented to the about the studies. These comments concluded that the data from these abusers. Concerning whether the data Committees: (1) A prospective studies support the need for an alcohol support an alcohol warning for OTC observational study (Ref. 74), (2) a warning. Another comment concluded drug products containing these retrospective study of adverse drug reaction reports (Ref. 75), (3) a study that the data from these studies show ingredients, the Committees voted 12 that: (1) There is an increased risk of yes, 2 no for aspirin; 12 yes, 2 no for conducted at the SUNY-Health Science Center (Ref. 76), (4) a study conducted major upper GI bleeding in aspirin users ibuprofen, and 12 yes, 1 no, and 1 that is independent of alcohol use, (2) abstention for naproxen sodium. The at the Sloane Epidemiology Unit (Ref. 77), (5) a study conducted by Strom there is an increased risk of major upper Committees further concluded that there GI bleeding in alcohol users that is are no data to support a warning for (Ref. 78), and (6) a study conducted at the University of Newcastle (Ref. 79). independent of aspirin use, and 3) nonaspirin salicylates and, therefore, a The comments contended that, based on aspirin further increases this risk in recommendation on the need for an these criticisms, the data from these alcohol users. alcohol warning for these OTC drug studies could not be relied upon to products was outside their advisory V. The Agency’s Tentative Conclusions support the need for an alcohol warning on the Committees’ Recommendations scope. Regarding the type of information for OTC aspirin drug products. The that should be included in an alcohol comments asserted that an independent A. Acetaminophen warning, the Committees recommended analysis of the data from two of the After considering NDAC’s that the warning not mention a specified epidemiological studies (Refs. 77 and recommendations and all available data level of alcohol consumption, but were 79) is necessary to verify the studies’ and information, the agency has unable to reach a consensus whether the conclusions and requested that the determined that the data are sufficient warning should be general or organ- agency obtain the raw data from the to warrant an alcohol warning for OTC specific (Ref. 72). studies. drug products containing Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61045 acetaminophen. Based on an evaluation acetaminophen per day for 5 days prior serum was not measurable and NAC of the scientific literature, the agency to hospital admission. On the day of was not administered. Tests for hepatitis has determined that individuals with a admission, the patient developed B surface antigen and hepatitis A were history of heavy alcohol use or abuse nausea and hematemesis. Jaundice and negative. A liver biopsy demonstrated have an increased risk from the bruising were also observed. centrilobular necrosis with normal hepatotoxic effects of acetaminophen. In Laboratory tests revealed elevated portal zones. The biopsy revealed no order to advise consumers with such a liver enzymes (AST 13,420 International evidence of steatosis, fibrosis, or history to consult a physician for advice Units/Liter (IU/L) and ALT 7,510 IU/L cirrhosis. The patient recovered on the use of OTC acetaminophen drug (reference AST and ALT 10 to 40 IU/L)) uneventfully. products, the agency is proposing that and hyperbilirubinemia (297 Licht, Seeff, and Zimmerman (Ref. 20) OTC analgesic/antipyretic drug micromole/liter (µmole/L) or 17.4 reported a 53-year-old man who products containing acetaminophen milligrams (mg)/deciliter (dL) (reference ingested 2.6 to 3.9 g acetaminophen bear an alcohol warning. bilirubin 3 to 25 µmole/L or 0.2 to 1.5 daily for an undisclosed period of time. Acetaminophen is considered a dose mg/dL)). Tests for hepatitis C surface He admitted to a 15-year history of dependent hepatotoxin (Ref. 81). Acute antigen, hepatitis A and excessive alcohol intake with a recent doses of acetaminophen of 15 g or more cytomegalovirus antibody, and intake of 2 quarts of whiskey daily. He in adults have been associated with Monospot were negative. The serum entered the hospital after 3 days of hepatotoxicity (Refs. 81 and 82). acetaminophen level 2 days after the weakness, abdominal discomfort, and However, the scientific literature from last dose was 2.5 micrograms/milliliter jaundice. 1966 to the present contains at least 97 (µg/mL). No liver biopsy was done. N- Laboratory values at the time of reports of hepatotoxicity attributed to acetylcysteine (NAC) was not admission indicated markedly elevated the ingestion of less than 15 g of administered. The patient improved liver enzymes (AST 19,710 milliunits acetaminophen (Refs. 1 through 27, 51, with supportive treatment and was (mU)/mL) and ALT 4,560 mU/mL), a 52, 53, 57 through 62, and 83 through discharged. At outpatient followup, 5 bilirubin of 13 mg/dL, and a prolonged 93). With few exceptions, these case weeks after admission, all laboratory prothrombin time of 22 seconds (control reports describe a clinical and tests were normal. 10 seconds). A serum acetaminophen laboratory picture consistent with Bell, Schonsby, and Raknerud (Ref. level obtained 12 hours after ingestion acetaminophen overdose: Nausea, 57) also reported a 57-year-old woman was in the nontoxic range (2 µg/mL). A vomiting, hematemesis (bloody (patient 4) with a history of gout who test for hepatitis B surface antigen was vomitus), jaundice, markedly elevated ingested 40 to 50 g of alcohol a day. For negative. No liver biopsy was obtained. liver enzymes (aspartate several years, she had taken 400 mg NAC was not administered. The patient aminotransferase (AST) and alanine acetaminophen and 5 mg prednisone recovered. aminotransferase (ALT)), elevated per day. In response to an increase in Luquel et al. (Ref. 60) described a 49- bilirubin, prolonged prothrombin time, leg pain, she increased her intake to 2.4 year-old man who was admitted to the and liver biopsy results (when obtained) to 3.2 g acetaminophen per day for hospital with confusion, hematemesis, demonstrating centrilobular necrosis. several days. On the day of hospital and decreased urine output. In addition Seventy-one of the 97 cases (73 admission, she vomited blood and to increasing his beer intake, he also percent) involve a history of heavy developed symptoms compatible with took 1.2 g acetaminophen and 25 mg alcohol use or abuse (Refs. 1, 2, 3, 5 hepatic encephalopathy (jaundice, ethyl loflazepate for 2 days prior to through 20, 22 through 26, 52, 53, 57 somnolence, and bruising). hospitalization. Laboratory values were through 62, 86, 87, and 93). While a Laboratory tests revealed elevated AST 1,870 IU/L, ALT 640 IU/L, total number of these reports lack sufficient aminotransferases (AST 16,180 IU/L and bilirubin 39 µmole/L or 2.3 mg/dL, and information to permit a detailed ALT 8,950 IU/L). Bilirubin was 123 a prothrombin rate of 75 percent. No assessment, the long history of the µmole/L or 7.2 mg/dL. NAC was not serum acetaminophen was detected, and reports, their diverse countries of origin, administered. The patient died the day NAC was not administered. The results consistent presentation and pattern of following admission with massive of a liver biopsy performed on the third usage suggest that individuals with a hematemesis and hypotension. Autopsy day of hospitalization revealed history of heavy alcohol use or abuse are revealed abundant blood in the stomach centrilobular necrosis. The patient more susceptible to acetaminophen’s and intestines but no sign of an ulcer. recovered uneventfully. hepatotoxic effects. Further, a majority Microscopically, a marked centrilobular Seeff et al. (Ref. 26) reported six cases of the 71 cases (41 cases or 58 percent) liver cell necrosis was seen. of acetaminophen hepatotoxicity in are associated with acetaminophen Floren, Thesleff, and Nilsson (Ref. 7) alcohol abusers. Three cases (patients 2, doses at or below the currently described hepatotoxicity in a 58-year- 3, and 6) involved doses of proposed maximum daily OTC dose (4 old woman (patient 1) who regularly approximately 4 g acetaminophen. g per day) or moderate overdoses of consumed a bottle of red wine a day. Patient 2 was a 30-year-old male chronic approximately 6 g (Refs. 7, 12 through The patient was hospitalized due to a alcohol abuser who ingested 12.5 g 18, 20, 22, 23, 24, 26, 52, 53, 57, 58, 60, slight intoxication. Before admission, acetaminophen over a 3-day period for 61, 62, 86, 87, and 93). she admitted to ingesting 1 to 1.5 g pain related to a dental abscess. A number of these cases provide acetaminophen, sedatives (oxazepam), (Assuming that the doses were evenly sufficient detail to suggest and antidepressants (lorazepam) for an distributed over the 3 days, he ingested acetaminophen induced hepatotoxicity unspecified period of time. The patient approximately 4.2 g acetaminophen per in heavy alcohol users or abusers at was transferred from the psychiatric day.) His laboratory values showed acetaminophen doses of 6 g or below. ward to the medical clinic due to elevated liver enzymes (AST greater Bell, Schonsby, and Raknerud (Ref. 57) elevated liver enzymes (AST 14.3 than 10,000 IU/L and ALT 7,610 IU/L), reported a 32-year-old male ‘‘periodic microkatal/L (µkat/L) and ALT 14.0 a bilirubin of 2.4 mg/dL, and a alcoholic’’ (patient 3) who began µkat/L). Reference levels for AST and prothrombin time 9.3 seconds longer drinking after a period of abstinence, ALT were less than 0.7 µkat/L. than control. A test for hepatitis B used acetaminophen to treat withdrawal At the time of transfer, the surface antigen was negative. Serum symptoms, and took 3.4 g concentration of acetaminophen in acetaminophen level and liver biopsy 61046 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules were not done. The patient was treated 1,130 IU/L, total serum bilirubin 10 mg/ recovered and was discharged from the with NAC, improved, and was released dL, and a prothrombin time of 13.1 hospital. from the hospital. seconds (control 12 seconds). Serum Seeff et al. (Ref. 26) reported a 58- Patient 3 was a 39-year-old man who acetaminophen was undetectable 6 days year-old male chronic alcohol abuser was hospitalized for a submandibular after acetaminophen ingestion. A test for hospitalized for alcoholic hepatitis and infection following a fracture. Over a 1- hepatitis B surface antigen was negative. cervical neck pain. The patient’s history week period, he had taken Antibodies to hepatitis B surface antigen included a recent increase in alcohol approximately 3.8 g acetaminophen per were detected. No liver biopsy was consumption and chronic ingestion of 4 day. On admission, his laboratory conducted. NAC was not administered. to 6 g acetaminophen daily for an values revealed elevated liver enzymes Hepatic function gradually improved unspecified period of time. On (AST 5,640 IU/L and ALT 354 IU/L), and the patient was discharged. admission, AST was 2,870 IU/L, bilirubin 16.5 mg/dL, and a Kartsonis, Reddy, and Schiff (Ref. 13) bilirubin was 3.6 mg/dL, and prothrombin time twice the control. reported a 39-year-old male alcohol prothrombin time was 14 seconds Serum acetaminophen levels were not abuser who developed vague inguinal (control 11.3 seconds). ALT was not determined, nor was a liver biopsy discomfort and began self-medicating reported, and serum acetaminophen performed. NAC was not administered. with 5 g acetaminophen per day over a levels were not determined. NAC was The patient improved over the next few 6-day period. He presented to the not administered. Laboratory values on weeks and was discharged. hospital with nausea, vomiting, and the next day included an AST level of Patient 6 was admitted to the hospital abdominal pain. Laboratory tests 790 IU/L and an ALT level of 2,300 IU/ for acute alcohol withdrawal syndrome. revealed elevated aminotransferases L. Serologic tests for hepatitis B were During the 3 days prior to admission, (AST more than 8,270 IU/L and ALT negative. No liver biopsy was done. she took approximately 3.7 g 6,494 IU/L), total bilirubin 4.2 mg/dL, Serum aminotransferases and acetaminophen a day for headache. and an extended prothrombin time of 21 prothrombin time returned to normal, Laboratory values included AST 6,888 seconds (control 12 seconds). and the patient was discharged 12 days IU/L, ALT 2,480 IU/L, total bilirubin 6.6 Acetaminophen was not detectable in after admission. mg/dL, and a prothrombin time 10 the blood. Neither a liver biopsy nor Kumar and Rex (Ref. 52) reported six cases of hepatotoxicity, four of which seconds longer than control. Serum viral screening were done. NAC was not acetaminophen level, liver biopsy, and involved acetaminophen doses of 5 to 6 administered. The man had an viral screening were not performed. g. Case 2 was a 65-year-old female uneventful recovery with supportive NAC was not administered and with alcohol abuser admitted to the hospital care and was discharged from the supportive treatment, the patient after 1 day of vomiting. Her admitting hospital after 7 days. recovered. AST and ALT levels were 3,199 IU/L Edwards and Oliphant (Ref. 86) O’Dell, Zetterman, and Burnett (Ref. and 1,270 IU/L, respectively. Her total described a 46-year-old man who 24) reported a 38-year-old woman who bilirubin level peaked at 41 µmole/L or presented to the hospital with a 2-hour took 6 g acetaminophen for 5 days for 2.4 mg/dL. After 2 days of observation history of epigastric pain with stomach pain. She had a history of and improvement, it was discovered hematemesis. The patient gave a history chronic pancreatitis and chronic that she had been taking about 6 g/day of regular alcohol consumption. In the alcoholism (approximately 200 g acetaminophen for back pain. Serum week prior to admission, he had ethanol a day for 10 years). She acetaminophen level, liver biopsy, and consumed two 1,250 mL spirits over the presented to the hospital with nausea, viral screening were not done. She was week and 12 cans of beer daily and vomiting, and abdominal pain. Liver discharged in stable condition with near concurrently taken not more than 3 g of enzymes on admission were AST 1,512 normal liver test results. acetaminophen daily for hangover, up to IU/L and ALT 554 IU/L. Bilirubin levels Case 3 was a 43-year-old woman a total dosage of 18 g. He took an and prothrombin times were normal. admitted to the hospital with a 6-day additional 3 g of acetaminophen 6 hours Acetaminophen blood levels were not history of fatigue, malaise, nausea, and prior to his admission to the hospital. determined. A liver biopsy revealed vomiting. Peak laboratory values Liver function tests conducted on day centrilobular necrosis without signs of included elevated liver enzymes (AST 2 of hospitalization showed markedly alcoholic hepatitis or centrilobular 14,920 IU/L and ALT 3,304 IU/L), total abnormal aminotransferases (AST fibrosis. bilirubin 126 µmole/L or 7.4 mg/dL, and 30,000 IU/L and ALT 9,750 IU/L) and a Acetaminophen administration was a prothrombin time of 46 seconds (no bilirubin of 86 µmole/L or 5 mg/dL. At discontinued and liver enzymes control reported). No serum 6 hours post ingestion, the serum returned to normal. The patient was acetaminophen levels, liver biopsy, or acetaminophen level was 0.04 µg/mL. counseled about acetaminophen and viral screening was performed. Initially, On day 2 the level was 0.005 µg/mL. alcohol toxicity, and discharged. the woman denied alcohol or Hepatitis serology was negative for Subsequently, she was readmitted to the acetaminophen use. However, a friend hepatitis A, B, and C. No liver biopsy hospital with abdominal pain of 2 subsequently reported that she was a was performed. NAC was not weeks duration for which she had taken heavy drinker and had been taking 5 g administered. The patient’s 6 g acetaminophen a day. acetaminophen daily for an unspecified convalescence was slow but uneventful. On admission, her liver enzymes were period of time. NAC was not Johnson, Friedman, and Mitch (Ref. AST 5,210 IU/L and ALT 1,580 IU/L, administered, and she was discharged 12) described a 23-year-old female and total bilirubin was 1.1 mg/dL. A in stable condition. alcohol abuser who developed acute serum acetaminophen level was not Kumar and Rex (Ref. 52) also hepatitis and renal failure 3 days after determined. A second biopsy showed described a 55-year-old man (case 4) ingesting a bottle of cold medication extensive centrilobular fibrosis. with a history of heavy alcohol use who containing 6 g acetaminophen in 25 Alcoholic hyalin and was hospitalized after 3 to 4 weeks of percent alcohol. The patient’s medical polymorphonuclear leukocyte nausea and vomiting. On admission, history included a previous hepatitis inflammation were not observed. The laboratory values included elevated infection. Laboratory values at periportal regions were normal and liver enzymes (AST 1,240 IU/L and ALT admission were AST 4,320 IU/L, ALT there was no portal fibrosis. The patient 252 IU/L), total bilirubin 35 µmoles/L, Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61047 and a prothrombin time of 15 seconds patient continued to deteriorate and within 72 hours of transfer. Following (no control reported). His liver enzyme died 1 month after hospital admission. the transplant, the patient was levels peaked on day 2 (AST 7,225 IU/ Autopsy findings included diffuse discharged in stable condition. Sections L and ALT 1,280 IU/L). It was later hepatic necrosis with micro vesicular fat of the removed liver showed extensive determined that he had ingested 6 g and bile stasis. centrilobular necrosis, with up to 50 or acetaminophen daily for an unspecified Case number 11 was a 43-year-old 60 percent necrosis in some areas. period of time for headaches and man with a long-standing history of Case number 13 was a 62-year-old arthritic pain. Serum acetaminophen alcohol abuse (at least 12 cans of beer man with a history of heavy alcohol use level, viral screening, and liver biopsy daily for 16 years). He developed lower and severe steroid-dependent chronic were not done. The patient was abdominal pain and fever, followed 2 obstructive pulmonary disease. He discharged after 20 days with normal days later by nausea and vomiting, for subsequently reduced his alcohol intake liver function tests. which he took two medications to two to four beers a day for several Another case reported by Kumar and containing acetaminophen (estimated years. A few days prior to admission, he Rex (Ref. 52) was a 59-year-old male dose less than 4 g per day) for at least developed flu-like symptoms (sore alcohol abuser (case 5) who was 1 day. He was admitted to the hospital throat, myalgia, and sleeping difficulty) admitted to the hospital with dizziness 2 days later with hypotension and for which he took an estimated 4 to 5 and orthostatic hypotension. He abnormal liver and renal function. g acetaminophen over an 8-hour period. reported ingesting 5 g acetaminophen Laboratory values showed elevated He became progressively weaker and daily for 1 month for hip pain. Peak liver enzymes (AST 5,450 IU/L and ALT fell on the day prior to admission. liver test abnormalities were present on 2,251 IU/L) a prothrombin time of 55.9 On admission, he was found to have the day of admission (AST 3,000 IU/L, seconds (no control reported), and a hypotension, weakness, grossly elevated ALT 290 IU/L, total bilirubin 133 total bilirubin of 89 µmole/L. The serum liver function tests (AST 16,279 IU/L, µmole/L, and prothrombin time 19 acetaminophen level was 5 µg/mL (time ALT 10,942 IU/L, a total bilirubin of 7.8 seconds, no control reported). Serum after last dose unknown). The patient mg/dL, and a prothrombin time of 55.7 acetaminophen levels, liver biopsy, and died 10 days after admission to the seconds, no control reported). Serum viral screening were not done. NAC was hospital. No record of hepatitis acetaminophen levels were not not administered. The patient screening was provided. Post-mortem determined. The patient was diagnosed subsequently developed sepsis and GI findings included centrilobular necrosis with acute hepatic failure and died bleeding and died 2 weeks after and widespread mucosal hemorrhages within 24 hours of admission. A post- hospitalization. consistent with coagulopathy. The mortem liver biopsy revealed massive The agency subsequently received an autopsy report noted that while there hepatocellular necrosis. additional 19 reports of acetaminophen was no evidence of cirrhosis, the Case number 19 was a 30-year-old liver toxicity (Ref. 94). Fifteen of these presence of ascites, muscle wasting, and man with a history of occasional alcohol reports involved acetaminophen doses testicular wasting was consistent with use. Four days prior to admission, he of less than 6 g daily in individuals with the effect of chronic liver disease. developed malaise and a sore throat and a history of moderate to heavy alcohol Case number 12 was a 41-year-old drank six glasses of wine prior to use. Five of the reports (case numbers 9, man who had taken acetaminophen- retiring for the evening. His symptoms 11, 12, 13, and 19) provided sufficient containing drugs for 2 days (4 to 5 g/ became progressively worse, and he detail to suggest acetaminophen- day) to alleviate the pain of fractured took acetaminophen (4 g per day) for 3 induced hepatotoxicity. ribs. He had a history of alcohol abuse to 4 days. On the morning of admission, Case number 9 was a 45-year-old and had recently been drinking 12 beers he became disoriented, unable to speak, woman with a history of alcohol abuse a day. He was admitted to the hospital and agitated. who, at the time of admission, had a with complaints of shortness of breath Admission laboratory data revealed history of ingesting one to two glasses and left-side chest pain. On markedly elevated liver enzymes (AST of wine daily (only at night). The patient examination, he was found to have 13,580 and ALT 11,250 IU/L), a had a history of acetaminophen use greater than an 80-percent prothrombin time of 32.4 seconds (no along with alcohol. For approximately 5 pneumothorax of the left lung and was control reported), and a bilirubin of 7.0 days prior to admission, the patient also deeply jaundiced. A blood alcohol mg/dL. No blood alcohol was detected. reportedly took acetaminophen at the level done at time of admission was A serum acetaminophen level of 7 µg/ recommended dose (4 g per day) for flu- reported as ‘‘0.’’ mL was obtained approximately 48 like symptoms. The patient vomited Laboratory findings included AST hours after the last acetaminophen dose. (some ‘‘coffee ground’’ emesis) for 5 21,900 IU/L, ALT 11,200 IU/L, total Screening for hepatitis B surface antigen days prior to admission, and for 2 days bilirubin 17.8 mg/dL, and a and core antibody was negative. Tests had a progressive deterioration of prothrombin time of 40 seconds (no for herpes simplex virus were initially mental status. On the night prior to control reported). The serum negative but were positive after admission, she became delirious and acetaminophen level was 2.1 µg/mL 4 transfusions. The patient deteriorated was brought to the emergency room. days after the last acetaminophen rapidly and lapsed into a coma. A liver Laboratory values showed grossly ingestion. The results of screening for transplant was done, after which the elevated liver enzymes (AST 15,205 IU/ hepatitis A antibody, hepatitis B surface patient was initially stable, but L and ALT 4,051 IU/L ), a prothrombin antigen and antibody, and hepatitis B subsequently developed deteriorating time of 63.7 seconds (no control core antibody were negative. Screening kidney function. The liver pathology reported), and a total bilirubin of 3.8 for Epstein-Barr surface antigen was also report described extensive centrilobular mg/dL. The serum acetaminophen level negative. A liver biopsy showed hemorrhagic necrosis. was 12 µg/mL (time after last dose fulminant hepatic necrosis with mild to Zimmerman and Maddrey (Ref. 95) unknown). No record of hepatitis moderate evidence of alcohol-related reported 67 additional cases of hepatic screening was provided. During the liver disease. A diagnosis of acute toxic injury in regular alcohol users hospital stay, an upper endoscopy liver failure was made, and the patient associated with the use of showed bleeding secondary to diffuse was transferred to a second hospital for acetaminophen for therapeutic gastritis and portal gastropathy. The a liver transplant, which was done purposes. The majority of cases 61048 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

involved subjects considered to be abusers (as evidenced by an increase in and tmax showed no significant alcohol abusers or who reported alcohol the plasma clearance rate (CL) and a differences between the two groups. intakes of at least 60 g/day. In 27 of the decrease in the plasma elimination half- However, in the alcohol abusers, t1/2 was cases (40 percent), hepatic injury was life of acetaminophen (t1/2)). This significantly shorter than for the attributed to acetaminophen doses increased metabolism suggests controls (1.71 versus 2.84 hours, p < under 4 g/day. In another 13 cases (19.4 increased activity of the microsomal 0.05). CL was increased in the alcohol percent), hepatic injury was associated pathway in this population. abusers (30.34 versus 26.52 L/hour, p < with acetaminophen doses of 4.1 to 6 g/ Dietz et al. (Ref. 28) compared the 0.05). day. Unfortunately, specific details of metabolism of acetaminophen in six Observed increases in the excretion of the individual cases were not provided. healthy alcohol abusers (240 to 480 mL metabolites (mercapturate and cysteine) Thus, a definitive assessment of the role alcohol daily for 2 to 40 years) to eight of the microsomal pathway also suggest of acetaminophen in the reported liver healthy nondrinking adults. The alcohol increased activity of this pathway in injuries is difficult. abusers had stopped drinking within the this population. Villeneuve et al. (Ref. Acetaminophen is metabolized previous 48 hours. Baseline laboratory 27) observed an increased urinary principally by glucuronide and sulphate data were obtained from both groups. excretion of cysteine and mercapturate conjugation in the liver. When Following a 12-hour fast, a single 1 g metabolites of acetaminophen in alcohol acetaminophen is taken at therapeutic dose of acetaminophen was abusers. The authors compared the doses, glucuronide and sulphate administered. Blood samples were pharmacokinetics of acetaminophen metabolites account for 80 to 90 percent collected immediately before metabolism in nine alcohol abusers (457 of the acetaminophen metabolites in acetaminophen administration and at ± 50 g ethanol per day for at least 3 urine (Ref. 80). Ordinarily, a small 30, 60, 90, 120, and 240 minutes months), eleven subjects with alcoholic fraction of acetaminophen is thereafter. Acetaminophen plasma data cirrhosis, and six healthy normal metabolized by microsomal enzyme were fit to a one-compartment open subjects. Subjects in the control group cytochrome P450 2E1 to NAPQI (Ref. model for oral dosing using nonlinear consumed no alcohol or other 96), but if the capacity of the regression analysis. The time to peak medications. glucuronidation and sulfation metabolic concentration (tmax), peak plasma Subjects with a history of alcohol pathways is exceeded, as in overdose, or concentration (Cmax), the area under the abuse were selected based on the if the synthesis of P450 2E1 is induced, concentration-time curve (AUC), and CL absence of alcoholic hepatitis or increased amounts of NAPQI are were determined. Laboratory screening cirrhosis (determined by physical produced. data revealed significant differences examination and standard biological NAPQI is avidly electrophilic and can between the controls and alcohol tests for liver function) and the lack of bind to liver cell macromolecules, abusers only in gamma-glutamyl drug use (other than alcohol). The disrupt cell function, and ultimately transpepsidase activity (12.6 units in diagnosis of cirrhosis was confirmed by cause liver cell death. The binding of controls and 204.7 units in alcohol liver biopsy. Cirrhotic subjects were NAPQI to liver cell components is abusers, p = 0.01). There was no hospitalized at the time of the study and prevented if the compound is detoxified significant difference in renal function did not consume alcohol for at least 30 by conjugation with GSH or other between the two groups. The days prior to the start of the study. Five sulfhydryl compound. The acetaminophen plasma AUC’s for the of the cirrhotic subjects received detoxification of NAPQI generates, groups were significantly different (p < spironolactone (100 mg/day) for through a series of reactions, 0.01). While both groups achieved Cmax treatment of their ascites. mercapturic acid and cysteine at approximately the same time, Cmax for After 12 hours of fasting, a liquid metabolites. GSH is depleted in the the nondrinkers was significantly higher preparation of acetaminophen was detoxification process and must be than for the alcohol abusers (20.2 µg/mL administered orally at a dose of 12 mg/ replenished by sulfhydryl compounds versus 15.4 µg/mL). The CL was also kilogram with 200 mL of water (mean from the diet or by drugs given as significantly accelerated in the alcohol dose: Controls 920 mg, alcohol abusers therapy, e.g., the cysteine containing abusers (247.4 mL/minute (min) versus 805 mg, and cirrhotics 872 mg). Blood compound NAC. NAC has well- 154.4 mL/min, p < 0.001). samples were taken at 0, 5, 15, 30, 45, documented effectiveness as an antidote Girre et al. (Ref. 55) obtained similar 60, 90, 120, 180, 240, 300, 360, and 420 for acetaminophen overdose. More results in a comparison of the minutes after ingesting acetaminophen. recently, it has been recommended for pharmacokinetics of acetaminophen in Urine was collected for 24 hours after the treatment of acetaminophen liver 12 chronic alcohol abusers and 12 ingestion. The apparent oral clearance toxicity after ingestion of therapeutic healthy controls. The mean daily (CLo), AUC, and t1/2 were determined. doses of acetaminophen by individuals alcohol consumption for the alcohol The percentage of the acetaminophen with a history of heavy alcohol use or abusers was 210 ± 95 g of absolute dose eliminated in the urine of alcohol abuse (Ref. 95). alcohol for a mean duration of 14.5 ± 9.5 abusers was significantly decreased Pharmacokinetic studies in humans years. Control subjects drank only from the controls (88.6 to 63.4 percent). suggest an increased sensitivity of heavy moderately (defined in the study as a In the cirrhotics, clearance was alcohol users or abusers to the weekly alcohol consumption < 80 g) and decreased by 50 percent (p < 0.05), t1/2 hepatotoxic effects of acetaminophen. were asked to abstain from alcohol was extended (p < 0.05), and urinary The data suggest that the ingestion of consumption for 36 hours before the elimination was not significantly even relatively small doses of trial. A single, 1-g acetaminophen dose decreased in relation to the controls. acetaminophen (1 g) by heavy alcohol was administered following a 12-hour The level of glucuronide and sulfate users or abusers results in a higher than fast. Blood samples were taken before conjugates in the alcohol abusers was normal percentage of acetaminophen acetaminophen intake and at 0.25, 0.5, not significantly different in comparison metabolized by the microsomal enzyme 0.75, 1, 1.5, 2, 2.5, 3, 4, 6, 8, and 24 to the controls. The excretion of pathway that yields NAPQI. The hours thereafter. cysteine and mercapturate metabolites available pharmacokinetic data suggest The following pharmacokinetic of acetaminophen was increased in a that the rate of metabolism of parameters were determined: Cmax, tmax, significant manner for the alcohol acetaminophen is increased in alcohol AUC, CL, and t1/2. A comparison of Cmax abusers (p < 0.05). When this increase Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61049 was expressed as a percent of the suggesting no impact of alcohol abuse individuals with a history of heavy administered dose, the mean on these metabolic pathways. alcohol use or abuse. At that meeting augmentation for the alcohol abusers To confirm that low plasma GSH (Ref. 72), agency representatives stated was 92 percent. In cirrhotics, the profile levels reflect low intrahepatic GSH, the that the unpublished studies had design of these metabolites was comparable to authors measured hepatic GSH in liver problems and did not convince them the controls. samples obtained from alcohol abusers that the use of alcohol with OTC An additional mechanism of the in whom a percutaneous liver biopsy internal analgesic/antipyretic increased sensitivity of alcohol abusers was indicated. The biopsied subjects all ingredients (such as aspirin) can cause to acetaminophen toxicity has been had histological evidence of alcoholic excess GI bleeding. Agency postulated to be a diminished capacity hepatitis with and without cirrhosis and representatives also stated that, based to detoxify NAPQI by conjugation with had more severe liver disease than the on these studies, the magnitude of the GSH. Lauterberg and Velez (Ref. 65) alcohol abusers in whom plasma GSH risk and the confidence level of the studied glutathione levels and the was measured. The hepatic estimated risk were uncertain. formation of the toxic metabolite of concentration of GSH in the biopsied However, the irritant effects of aspirin paracetamol (acetaminophen) in chronic subjects was about 50 percent lower on the gastric mucosa are well alcohol abusers. Study subjects were than in subjects without liver disease documented. In discussing the effect of recruited from an alcohol treatment and subjects with a mild inflammatory aspirin on the gastric mucosa (42 FR program and had a history of heavy process or nonalcoholic cirrhosis. 35346 at 35386 to 35397), the Panel drinking (average consumption of 180 g Based on the data discussed above, concluded that aspirin and salicylic ethanol per day) up to 2 days prior to the agency concludes that chronic heavy acid have a direct local irritant effect on study initiation. Some of these subjects alcohol use or abuse has a significant the surface of mucosal cells lining the received chlorodiazepoxide (last dose effect on the metabolism of GI tract. The Panel asserted that the 10 mg more than 10 hours prior to the acetaminophen and the detoxification of acute use of aspirin may activate study) as part of their treatment. Control acetaminophen’s toxic metabolite, symptoms of both gastric and duodenal subjects denied consumption of alcohol NAPQI. These changes put individuals ulcer, such as epigastric pain and GI in excess of 10 g/day and were not with a history of heavy alcohol use or hemorrhage. The Panel stated that the taking any medications. abuse at an increased risk from initiation or exacerbation of stomach The study determined the plasma acetaminophen liver toxicity. Therefore, ulcers, stomach irritation, and intestinal GSH levels of alcohol abusers without the agency believes that an alcohol inflammation occurs in a significant clinical evidence of alcoholic liver warning for adult OTC internal number of aspirin users. Individuals disease and in controls following an analgesic/antipyretic drug products particularly at risk are those with a overnight fast. The GSH plasma containing acetaminophen is warranted. history of symptoms of GI problems. concentration was about 50 percent However, the agency does not find the Alcohol is also a gastric irritant. lower in alcohol abusers than in the submitted data sufficient to demonstrate Tarnawski et al. (Ref. 97) studied the controls (8.48 versus 4.35 micromoles the safety of a lower maximum daily effect of the intragastric administration (µmole), p < 0.05). In contrast, the dose (2 g acetaminophen) in heavy of 100 mL of 40 percent ethanol (the plasma concentration of free cysteine alcohol users or abusers or to support a alcohol content of 80 proof whiskey) or was similar for alcohol abusers and for specific labeling recommendation to saline in 15 healthy volunteers (ten test controls. that effect. Therefore, the agency is not and five control subjects). Changes in The study also examined the effect of proposing a reduction in the the appearance of the gastric mucosa, acetaminophen administration on recommended maximum OTC daily 4 g mucosal histology, luminal pH, and plasma GSH. Subjects were given a 2 g dose of acetaminophen at this time. gastric mucosal potential were acetaminophen dose in lemonade after a Rather, the agency believes that OTC evaluated. The authors found that a 10-hour fast. Blood samples were taken labeling should recommend contact single dose of 40 percent alcohol hourly for 4 hours. Urine was collected with a physician to these individuals. A produced rapid endoscopic changes for 6 hours. After the administration of physician familiar with a consumer’s (congestion and focal hemorrhages) and acetaminophen, the plasma GSH history can advise them on whether a prominent histologic changes concentration in controls was particular OTC analgesic/antipyretic (exfoliation of the surface epithelium, significantly decreased at 3 hours from drug product is appropriate for their edema of the lamina propria, and a mean concentration of 8.37 to 6.26 use, suggest other appropriate therapies, hemorrhagic lesions associated with µmole (p < 0.02 by paired t-test). The and counsel them about their alcohol mucosal microvascular damage). plasma GSH levels in alcohol abusers use. Histologic changes were seen as early as were significantly lower than baseline at 5 minutes after alcohol administration. 2 and 3 hours (3.10 and 2.40 µmole, B. Other Monograph Ingredients Individuals with a history of heavy respectively, baseline 4.66 µmole). All The agency has carefully considered alcohol consumption commonly GSH levels in the alcohol abusers were the Committees’ recommendations, all develop characteristic subepithelial significantly lower (p < 0.05) than the comments received in response to those hemorrhages with the endoscopic corresponding values in the control recommendations, and all available data appearance of ‘‘blood under plastic group. The decrease in plasma cysteine and information and has determined wrap.’’ Although termed ‘‘hemorrhagic was not significantly different from that an alcohol warning for OTC gastritis,’’ these lesions are composed of control values. Urinary excretion of internal analgesic/antipyretic drug hemorrhage and edema in the mercapturic acid and cysteine products containing aspirin is interstitial space under the surface conjugates was slightly increased in warranted. The agency agrees with the epithelium, without inflammation (Ref. alcohol abusers. However, the difference comments that the unpublished 98). While there are no controlled was not statistically significant. There epidemiological data presented to the studies demonstrating that ethanol in was no significant difference in the Committees at the September 8, 1993, lower doses will precipitate relevant relative amounts or proportions of meeting alone were insufficient to gastric hemorrhage, acute hemorrhagic glucuronide and sulfate metabolites document an increased risk of GI gastritis accounts for 25 percent of the between alcohol abusers and controls, bleeding associated with aspirin use by cases of major bleeding in alcohol 61050 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules abusers compared to 5 percent in the (more than 70 percent of the subjects ingredients may lead consumers to population without a history of prior reporting daily or weekly use). conclude that they are safer to use with alcohol abuse (Ref. 99). As with gastritis The agency is currently evaluating alcohol, when there are no data upon from other causes, individuals with several new professional vascular uses which to base such a conclusion. alcoholic gastritis may have no of aspirin and is aware that more people Therefore, based, among other things, symptoms whatsoever (Ref. 100). are taking aspirin chronically for on the Panel’s conclusions that these Currently available data do not provide cardiovascular and/or cerebrovascular OTC internal analgesic/antipyretic sufficient information to assess the indications and thus may have an active ingredients all have safety magnitude of the risk of aspirin use by increased risk of GI bleeding or profiles similar to aspirin and should individuals with a history of heavy susceptibility to ulcers. Further, the bear similar labeling, the agency is also alcohol use or abuse. magnitude of the risk of heavy alcohol proposing that OTC drug products Further, in the last 15 to 20 years, the use in this population is not clearly containing carbaspirin calcium, choline use of aspirin for the prevention of defined. salicylate, magnesium salicylate, and recurrent myocardial infarction (MI), The agency is aware that numerous sodium salicylate bear an alcohol transient ischemic attacks (TIA), and studies have examined the effects of warning. alcohol consumption on the rate of stroke has become prevalent. The C. OTC Internal Analgesic/Antipyretic agency has evaluated the available cardiovascular disease. In a review of these studies, Marmot and Brunner (Ref. Ingredients Switched From Prescription literature on aspirin for cerebral Status vascular and cardiovascular indications 121) concluded that the evidence and the incidence of GI bleeding and suggests that two drinks a day do not After reviewing current data and ulcers in these studies. Eighteen of the cause cardiovascular harm and may be information, and based on the Committees’ recommendations, the 19 studies that included aspirin and protective against coronary heart agency is proposing to require an placebo groups and evaluated GI disease. Above two drinks per day, the alcohol warning on all OTC drug bleeding reported an increase in GI authors found evidence of harmful effects. Heavier alcohol intakes have products containing ibuprofen, bleeds in the aspirin group when been associated with an increase in ketoprofen, and naproxen sodium. compared to the placebo group (Refs. cardiovascular diseases, such as heart Ibuprofen, ketoprofen, and naproxen 101 through 118). One study reported muscle disease, hypertension, sodium have been extensively marketed no GI bleeds in either group (Ref. 119). disturbances in heart rhythm, and stroke as prescription drugs at higher doses. Aspirin dosages in the studies ranged (Ref. 122). Pohorecky (Ref. 123) found Lower doses have been approved for from 75 to 1,500 mg daily. Increases in that the risk for hypertension among OTC marketing through the new drug bleeding were reported at all aspirin individuals drinking three to four drinks approval process. All OTC ketoprofen dosage levels when compared to the per day was 50 percent higher than and naproxen sodium drug products are control groups. The number of subjects among nondrinkers. currently marketed with the following in the studies ranged from 125 to The American Heart Association alcohol warning: ‘‘ALCOHOL 22,071. The overall results of these (AHA) (Ref. 124) does not currently WARNING [heading in bold face type]: studies show that GI bleeding increases recommend the ingestion of moderate If you generally consume 3 or more with long-term aspirin use, even at low amounts of alcohol for its protective alcohol-containing drinks per day, you aspirin doses. effect against cardiovascular disease. should consult your physician for The UK–TIA study (Ref. 106) However, based on the adverse effects of advice on when and how you should suggested a risk of GI bleeding that alcohol on blood pressure, the AHA take [product name inserted] and other increased in a dose-dependent manner. recommends that alcohol intake should pain relievers.’’ The odds ratio (95 percent confidence not exceed two drinks per day (Ref. Ibuprofen, ketoprofen, and naproxen interval) was 3.3 (1.2 to 9.0) for 300 mg 124). The Dietary Guidelines of the U.S. sodium are derivatives of propionic acid daily aspirin and 6.4 (2.5 to 16.5) for Departments of Agriculture and Health and, as such, share common 1,200 mg daily aspirin (Ref. 120). and Human Services (Ref. 125) also pharmacologic effects. As with aspirin, Several studies reported the number of recommend moderate alcohol propionic acid derivatives produce ulcers in the aspirin and placebo consumption. These guidelines define adverse GI side effects, alter platelet groups. The Aspirin Myocardial moderate alcohol consumption as one function, and prolong bleeding time Infarction Study Research Group (Ref. drink (12 ounces (oz) of regular beer, 5 (Refs. 126 through 129). GI 112) reported ‘‘symptoms suggestive of oz of wine, or 1.5 oz of 80-proof complications are the most common peptic ulcer, gastritis, or erosion of distilled spirits) per day for women and side effects of these drugs and can gastric mucosa’’ in 14.9 percent of the two drinks per day for men. Based on include problems such as irritation, placebo group and in 23.7 percent of the these recommendations, the agency nausea, vomiting, bleeding, aspirin group. The British Doctors’ believes that the proposed warning hematemesis, and activation of peptic Study (Ref. 102) reported a significant provides appropriate advice to ulcer (Refs. 127 and 128). increase in peptic ulcers in the aspirin consumers on low-dose prophylactic Articles in the scientific literature group compared to the placebo group. aspirin regimens. suggest a definitive relationship The Physicians’ Health Study (a 325 The agency acknowledges the between the ingestion of propionic acid mg aspirin dose on alternate days (Ref. Committees’ conclusion that there are derivatives at prescription doses and GI 101) reported a nonsignificant increase no clinical trial data supporting the complications. In a review article, in upper GI ulcers in the aspirin arm need for an alcohol warning on OTC Greene and Winickoff (Ref. 130) compared to placebo (169/11,037 versus internal analgesic/antipyretic drug discussed the effectiveness, side effects, 138/11,034, p = 0.08). However, a products containing carbaspirin and costs of aspirin and various statistically significant increase in the calcium, choline salicylate, magnesium prescription nonsteroidal anti- number of duodenal ulcers was reported salicylate, and sodium salicylate. inflammatory drugs (NSAID’s), in the aspirin group (46/11,037 versus However, the agency is concerned that including ibuprofen, ketoprofen, and 27/11,034, p = 0.03), where most of the the absence of an alcohol warning on naproxen sodium. The authors stated subjects reported some alcohol use OTC drug products containing these that NSAID’s share the risks of causing Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61051 gastric ulcer, upper GI bleeding, and GI OTC drug products containing aspirin, ibuprofen, ketoprofen, and perforation, and that GI side effects ibuprofen or naproxen sodium. naproxen sodium. occur in roughly 25 percent of NSAID On July 14, 1995, the Committees A comment submitted in response to users. The authors also cited studies discussed two NDA’s for OTC NDAC’s recommendation for an alcohol (Ref. 130) that attribute a relative risk of ketoprofen products (Ref. 133). The warning for OTC acetaminophen drug 4.03 for gastric ulcer and 3.09 for upper Committees agreed that ketoprofen can products advised that all OTC internal GI bleeding in users of these drug be used safely and effectively OTC. analgesic/antipyretic drug products products. However, the Committees voted should bear a common alcohol warning. Langman et al. (Ref. 131) compared unanimously that, based on past The comment proposed the following previous use of propionic acid Committee discussions, products warning: ‘‘Use of certain medicines with derivatives and other prescription containing this new OTC ingredient alcohol can cause adverse effects. NSAID’s in patients age 60 and older should be required to have the same Consult a physician for appropriate use admitted to hospitals with bleeding alcohol warning in their labeling as that of this or other pain relievers if every from peptic ulcers to controls (in required for naproxen sodium. day you consume excessive amounts of hospital and community) matched for Based on the Committees’ alcohol.’’ The comment suggested that sex and age. The investigators found recommendations and information in this warning would avoid the potential that peptic ulcer bleeding was strongly the literature, the agency has concerns consumer confusion that could result associated with the use of propionic that the use of OTC internal analgesic/ from a more-detailed, ingredient- specific warning. The comment acid derivatives, aspirin, and other antipyretic drug products containing prescription NSAID’s during the 3 mentioned the following advantages of aspirin, carbaspirin calcium, choline months before admission and that the this warning: (1) Its educational nature, salicylate, ibuprofen, ketoprofen, risk of bleeding increased as dosage i.e., the warning heightens consumer magnesium salicylate, naproxen increased. An analysis of the risk awareness of a possible interaction sodium, and sodium salicylate by according to drug dose (low, medium, between alcohol and OTC internal individuals with a history of heavy high) revealed an odds ratio of 2.5 (1.7 analgesic/antipyretic drug products, and alcohol use or abuse may increase their to 3.8, 95 percent confidence interval) (2) it helps consumers to understand risk of adverse GI effects, including when exposure was to lower doses of that they simply cannot switch to serious GI bleeding. Therefore, the these drugs and increased to 4.5 (3.3 to another OTC internal analgesic/ agency has determined that an alcohol 6.0, 95 percent confidence interval) antipyretic drug product to avoid this when exposure was to moderate doses. warning is needed for OTC internal risk. The study defined low dose as: (1) Less analgesic/antipyretic drug products Under the new drug approval process, than 1,200 mg/day (OTC maximum containing these ingredients. The the agency has approved the marketing daily dose) for ibuprofen, (2) less than agency invites the submission of of OTC internal analgesic/antipyretic 500 mg/day for naproxen (OTC comments and additional data drug products containing ketoprofen maximum daily dose 660 mg/day), and supporting the safe use of these and naproxen sodium. The following (3) less than 100 mg/day for ketoprofen ingredients by individuals with a warning was included in the products’ (OTC maximum daily dose 75 mg). history of heavy alcohol use or abuse. approved labeling (Refs. 134, 135, and The use of ibuprofen, ketoprofen, or VI. The Agency’s Proposal 136): ‘‘ALCOHOL WARNING: If you naproxen sodium may also predispose generally consume 3 or more alcohol- an individual to bleeding from a Current data and information indicate containing drinks per day, you should preexisting ulcer or other upper GI that individuals with a history of heavy consult your physician for advice on lesion. Increased severity of GI irritation alcohol use or abuse have an increased when and how you should take [product is related to increased dosage of drug. sensitivity to the hepatotoxic effects of name] and other pain relievers.’’ While less severe irritation could be acetaminophen. Currently available data Subsequently, this warning was expected at the lower OTC doses, there on the use of OTC internal analgesic/ included in the approved labeling of an are no data to clarify the magnitude of antipyretic drug products containing OTC extended release drug product the risk for individuals with preexisting aspirin, carbaspirin calcium, choline containing acetaminophen (Ref. 136). In GI lesions due to a history of heavy salicylate, ibuprofen, ketoprofen, April of 1996, the agency requested the alcohol use or abuse. In fact, more naproxen sodium, magnesium voluntary implementation of this recent information (Ref. 132) suggests salicylate, and sodium salicylate raise alcohol warning on all OTC analgesic/ that OTC doses of ibuprofen or the logical concern that these OTC antipyretic drug products (Ref. 138). naproxen sodium increase by three products pose an increased risk of GI This request was based on a lack of times the risk of GI bleeding and that bleeding to these individuals (i.e., uniformity in the use of an alcohol this risk is increased when OTC drug individuals with a history of heavy warning and the resultant consumer products containing these ingredients alcohol use or abuse). However, the confusion. are used by individuals who consume available data are not sufficient to assess In the Federal Register of February alcohol. the magnitude of this risk. Therefore, 27, 1997 (62 FR 9024), the agency The Committees discussed the the agency is proposing that all OTC published a proposed rule to establish a relationship between alcohol and internal analgesic/antipyretic drug standardized format for the labeling of toxicities associated with OTC internal products and any combination product OTC drugs. During the agency’s analgesic/antipyretic drug products containing one of these ingredients evaluation of data relating to consumers’ (Ref. 72) and concluded that the effect labeled for adult use, whether marketed perception of label warnings it became of alcohol and ibuprofen or naproxen pursuant to an OTC drug monograph or clear that more specific information sodium was at least additive and that an NDA, bear an alcohol warning. This heightens the effectiveness of risk heavy and/or chronic drinkers of proposal follows the agency’s communication (Ref. 139). Therefore, alcohol are at an increased risk of severe Committees’ (NDAC and ADAC) the agency is concerned about the gastritis and GI bleeding. The recommendations for such a warning on effectiveness of the general alcohol Committees recommended that an OTC internal analgesic/antipyretic drug warning currently used and is proposing alcohol warning should be required on products containing acetaminophen, more specific alcohol warnings. 61052 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

The warnings being proposed are 3 or more alcoholic beverages daily, ask manufacturers will be given ample time similar to that suggested by the your doctor whether you should take after publication of a final rule to use up comment but contain more specific [insert product name] or other pain any labeling implemented in information. The warnings specify ‘‘3 or relievers. [Product name] may increase conformance with this proposal. more’’ instead of the general term your risk of liver damage.’’ For OTC VIII. Analysis of Impacts ‘‘excessive.’’ The agency has included a analgesic/antipyretic drug products specific number of drinks in the containing other OTC active ingredients, FDA has examined the impacts of the warnings to help consumers identify a i.e., aspirin, carbaspirin calcium, proposed rule under Executive Order level of alcohol consumption that may choline salicylate, ibuprofen, 12866 and the Regulatory Flexibility Act increase their risk from the use of OTC ketoprofen, naproxen sodium, (5 U.S.C. 601–612). Executive Order internal analgesic/antipyretic drug magnesium salicylate, and sodium 12866 directs agencies to assess all costs products. However, the agency salicylate, labeled for adult use, the and benefits of available regulatory acknowledges that the data are not agency is proposing the following alternatives and, when regulation is sufficient to clearly identify a level of warning: ‘‘Alcohol Warning’’ [heading necessary, to select regulatory alcohol consumption that increases the in boldface type]: ‘‘If you drink 3 or approaches that maximize net benefits risk of OTC internal analgesic/ more alcoholic beverages daily, ask your (including potential economic, antipyretic drug use. doctor whether you should take [insert environmental, public health and safety, In the proposed warnings, the agency product name] or other pain relievers. and other advantages; distributive has included a level of alcohol [Product name] may increase your risk impacts; and equity). Under the consumption that is consistent with of stomach bleeding.’’ The agency is Regulatory Flexibility Act, if a rule has limitations on daily intake proposing that OTC analgesic/ a significant impact on a substantial recommended by the AHA (Ref. 124) antipyretic drug products containing number of small entities, an agency and by the Dietary Guidelines for acetaminophen in combination with any must analyze regulatory options that Americans developed by the U.S. other OTC analgesic/antipyretic would minimize any significant impact Departments of Agriculture and Health ingredient, labeled for adult use, should of the rule on small entities. and Human Services (Ref. 125). The bear the following warning: ‘‘Alcohol Title II of the Unfunded Mandates AHA recommends that men and women Warning’’ [heading in boldface type]: ‘‘If Reform Act (2 U.S.C. 1501 et seq.) limit alcohol intake to 1 oz of alcohol you drink 3 or more alcoholic beverages requires that agencies prepare a written per day and defines this amount as daily, ask your doctor whether you statement and economic analysis before follows: (1) 2 oz of 100-proof whiskey, should take [insert product name] or proposing any rule that may result in an (2) 3 oz of 80-proof whiskey, (3) 8 oz of other pain relievers. [Product name] expenditure by State, local, and tribal wine, or (4) 24 oz of beer. The Dietary may increase your risk of liver damage governments, in the aggregate, or by the Guidelines recommend no more than and stomach bleeding.’’ However, the private sector of $100 million (adjusted two drinks per day for men and one agency invites comment on the above annually for inflation) in any 1 year. drink per day for women. The organ-specific alcohol warnings. The agency believes that this guidelines define one drink as follows: proposed rule is consistent with the (1) 12 oz of regular beer, (2) 5 oz of VII. Voluntary Implementation principles set out in the Executive Order wine, or (3) 1.5 oz of 80-proof distilled The agency acknowledges that these and in these two statutes. The purpose spirits. The agency believes that the proposed alcohol warnings represent a of this proposed rule is to add a warning number of drinks included in the significant change from the labeling statement to the labeling of OTC drug proposed warnings are consistent with required for OTC analgesic/antipyretic products labeled for adult use these recommendations. However, the new drug products approved since containing internal analgesic/antipyretic agency invites comment on the naproxen sodium. Therefore, holders of active ingredients. The warning proposed warnings specifying ‘‘3 or approved applications for OTC internal statement concerns the increased risk of more alcoholic beverages daily.’’ analgesic/antipyretic drug products will adverse effects from the use of OTC In addition, the warnings being not be required to implement the analgesic/antipyretic drug products by proposed include organ-specific proposed warnings at this time. individuals with a history of heavy information. When NDAC discussed a However, holders of approved alcohol use or abuse. Potential benefits warning for acetaminophen, it applications for these drug products include a reduced risk of adverse effects recommended that product labeling may implement the proposed warning when these consumers use these refer specifically to possible damage to without advance approval from FDA products. the liver. However, when the provided the warning includes at least This proposed rule amends Subpart Committees considered the need for an the information in proposed § 201.322. C—Labeling Requirements of Over-the- alcohol warning for other OTC internal A supplement must be submitted under Counter Drugs of 21 CFR part 201 and analgesic/antipyretic drug products § 314.70(c) (21 CFR 314.70(c)) in order will require relabeling for many OTC (e.g., aspirin), they were unable to reach to provide for the implementation of drug products containing internal a consensus on whether the warning such labeling. The supplement and its analgesic/antipyretic active ingredients. should be general or should specify mailing cover should be clearly marked: The agency’s Drug Listing System bleeding or GI effects. Based on its ‘‘Special Supplement—Changes Being identifies approximately 600 recent experience with OTC consumer Effected.’’ manufacturers and distributors of 5,000 labeling, the agency has concluded that Voluntary compliance with these to 6,000 OTC analgesic/antipyretic drug warnings containing more specific proposed warnings is subject to the products with an average of 3 stock information are more effective. possibility that FDA may change the keeping units (SKU) (individual Therefore, the agency is proposing that wording of the statement, or not require products, packages, and sizes) per OTC analgesic/antipyretic drug the statement, as a result of comments product. It is also likely that there are products containing acetaminophen, filed in response to this proposal. some additional marketers and products labeled for adult use, should bear the Because FDA wishes to encourage the that are not currently included in the following warning: ‘‘Alcohol Warning’’ voluntary use of the proposed labeling agency’s system. Nonetheless, the [heading in boldface type]: ‘‘If you drink statements, the agency advises that agency estimates that there are a total of Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61053

600 manufacturers and distributors and this proposal would be small. Further, IX. Paperwork Reduction Act of 1995 an estimated 18,000 SKU’s. some entities, such as those private FDA tentatively concludes that the The agency has been informed that label manufacturers that provide labeling requirement proposed in this relabeling costs of this type generally labeling for a number of the affected document is not subject to review by the average about $2,000 to $3,000 per SKU. products may also incur a significant Office of Management and Budget Assuming that there are approximately impact. However, the agency has because it does not constitute a 18,000 affected SKU’s in the allowed for a 6-month implementation ‘‘collection of information’’ under the marketplace, total one-time costs of period and the use of supplementary Paperwork Reduction Act of 1995 (44 relabeling would be $36 to $48 million. labeling (e.g., stick-on labeling) in an U.S.C. 3501 et seq.). Rather, the However, the agency believes that the attempt to minimize the economic proposed warning statement is a ‘‘public actual costs may be lower because the impact of the proposed regulation. The disclosure of information originally agency is allowing supplementary agency believes that these measures supplied by the Federal government to labeling (e.g., stick on labeling) to be should help reduce relabeling costs for the recipient for the purpose of used for products not undergoing a new small entities. labeling printing within the 6-month disclosure to the public’’ (5 CFR implementation period. The agency The agency considered but rejected 1320.3(c)(2)). solicits comments on whether these the following alternatives: (1) Voluntary X. Environmental Impact estimates are accurate and whether relabeling, and (2) a longer implementation period. However, the The agency has determined under 21 there are other effects that the agency CFR 25.24(c)(6) that this action is of a should consider (e.g., the cost to agency does not consider either of these type that does not individually or manufacturers due to the effect on sales approaches acceptable because they do cumulatively have a significant effect on because of the decreased use of these not ensure that consumers will have the the human environment. Therefore, products; or the implications to patients most recent needed information for the neither an environmental assessment who take these products safe and effective use of OTC drug nor an environmental impact statement prophylactically for conditions such as products containing internal analgesic/ is required. heart ailments). antipyretic drug active ingredients. The proposed rule would not require This analysis shows that this XI. Public Comment any new reporting and recordkeeping proposed rule is not economically Interested persons may, on or before activities. Therefore, no additional January 28, 1998, submit to the Dockets professional skills are needed. There are significant under Executive Order 12866 Management Branch (address above) no other Federal rules that duplicate, and that the agency has undertaken written comments regarding this overlap, or conflict with the proposed important steps to reduce the burden of proposal. Written comments on the rule. The agency does not believe that small entities. Nevertheless, some agency’s economic impact there are any significant alternatives to entities, especially those private label determination may be submitted on or the proposed rule that would adequately manufacturers that provide labeling for before January 28, 1998. Three copies of provide for the safe and effective use of a number of the affected products, may all comments are to be submitted, OTC drug products containing incur significant impacts. Thus, this analgesic/antipyretic active ingredients. economic analysis, together with other except that individuals may submit one This proposed rule may have a relevant sections of this document, copy. Comments are to be identified significant economic impact on some serves as the agency’s initial regulatory with the docket number found in small entities. The labeling of some of flexibility analysis, as required under brackets in the heading of this the affected products is prepared by the Regulatory Flexibility Act. Finally, document and may be accompanied by private label manufacturers for small this analysis shows that the Unfunded a supporting memorandum or brief. marketers. Census data provide Mandates Act does not apply to the Received comments may be seen in the aggregate industry statistics on the total proposed rule because it would not office above between 9 a.m. and 4 p.m., number of manufacturers for result in an expenditure by State, local, Monday through Friday. Standardized Industrial Classification or tribal governments, in the aggregate, XII. References Code 2384 Pharmaceutical Preparations or by the private sector, of $100 million The following references have been by establishment size, but do not in any 1 year. distinguish between manfacturers of placed on display in the Dockets The agency invites public comment prescription and OTC drug products. Management Branch (address above) According to the U.S. Small Business regarding any substantial or significant and may be seen by interested persons Administration (SBA) designations for economic impact that this rulemaking between 9 a.m. and 4 p.m., Monday this industry, however, over 92 percent would have on manufacturers of drug through Friday. products that contain OTC internal 1. Baeg, N., H. C. Bodenheimer, and K. of the roughly 700 establishments and Burchard, ‘‘Long-Term Sequelae of over 87 percent of the 650 firms are analgesic/antipyretic active ingredients. Comments regarding the impact of this Acetaminophen-Associated Fulminant small. (Because census size categories Hepatic Failure: Relevance of Early do not correspond to the SBA rulemaking on these drug products Histology,’’ American Journal of designation of 750 employees, these should be accompanied by appropriate Gastroenterology, 83:569–571, 1988. figures are based on 500 employees.) documentation. A period of 75 days 2. Barker, J. D., D. J. deCarle, and S. An analysis of IMS America listings from the date of publication of this Anuras, ‘‘Chronic Excessive Acetaminophen for manufacturers of OTC drug products proposed rulemaking in the Federal Use and Liver Damage,’’ Annals of Internal found that from 46 to 69 percent of the Register will be provided for comments Medicine, 87:299–301, 1977. 400 listed firms are small using the SBA on this subject to be developed and 3. Black, M. et al., ‘‘Late Presentation of submitted. The agency will evaluate any Acetaminophen Hepatotoxicity,’’ Digestive definition of 750 employees. The Diseases and Sciences, 27:370–374, 1982. agency’s Drug Listing System indicates comments and supporting data that are 4. Dennison, H., J. Kaczynski, and S. that about 600 marketers will need to received and will reassess the economic Wallerstedt, ‘‘Paracetamol Medication and relabel. Thus, the agency believes that impact of this rulemaking in the Alcohol Abuse: A Dangerous Combination many of the manufacturers affected by preamble to the final rule. for the Liver and the Kidney,’’ Scandinavian 61054 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

Journal of Gastroenterology, 22:701–704, Journal of the American Medical Association, Carbon Tetrachloride-Induced 1987. 244:251–253, 1980. Hepatotoxicity,’’ Journal of Pharmacology 5. Emby, D. J., and B. N. Fraser, 23. McClain, C. J. et al., ‘‘Clinical Features and Experimental Therapeutics, 218:805– ‘‘Hepatotoxicity of Paracetamol Enhanced by of Acetaminophen Toxicity,’’ Journal of 810, 1981. Ingestion of Alcohol,’’ South African Medical Clinical Gastroenterology, 10:76–80, 1988. 40. Sato, C., and C. S. Lieber, ‘‘Mechanism Journal, 51:208–209, 1977. 24. O’Dell, J. R., R. K. Zetterman, and D. of the Preventive Effect of Ethanol on 6. Fleckenstein, J. L., ‘‘Nyquil and Acute A. Burnett, ‘‘Centrilobular Hepatic Fibrosis Acetaminophen-Induced Hepatotoxicity,’’ Hepatic Necrosis,’’ New England Journal of Following Acetaminophen-Induced Hepatic Journal of Pharmacology and Experimental Medicine, 1:48, 1985. Necrosis in an Alcoholic,’’ Journal of the Therapeutics, 218:811–815, 1981. 7. Floren, C., P. Thesleff, and A˚ . Nilsson, American Medical Association, 255:2632– 41. Rumack, B. H. et al., ‘‘Acetaminophen ‘‘Severe Liver Damage Caused by Therapeutic 2633, 1986. Overdose,’’ Archives of Internal Medicine, Doses of Acetaminophen,’’ Acta Medica 25. Pezzano, M. et al., ‘‘Hepatic and Renal 141:380–385, 1981. Scandinavia, 222:285–288, 1987. Toxicity of Paracetamol in Chronic Alcoholic 42. Lieber, C. S, ‘‘Interaction of Alcohol 8. Foust, R. T. et al., ‘‘Nyquil-Associated Subjects,’’ Press Me´dicale, 17:21–24, 1988. and Drugs,’’ Practical Gastroenterology, 7:23– Liver Injury,’’ American Journal of 26. Seeff, L. B. et al., ‘‘Acetaminophen 24, 29–30, and 48, 1983. Gastroenterology, 84:422–425, 1989. Hepatotoxicity in Alcoholics,’’ Annals of 43. Altomare, E. et al., ‘‘Interaction of 9. Gerber, M. A. et al., ‘‘Acetaminophen Internal Medicine, 104:399–404, 1986. Ethanol with Acetaminophen Metabolism in Associated Hepatic Injury—Report of Two 27. Villeneuve, J. P. et al., the Baboon,’’ Biochemical Pharmacology, Cases Showing Unusual Portal Tract ‘‘Pharmacokinetics and Metabolism of 31:2207–2212, 1984. Reactions,’’ Human Pathology, 11:37–42, Acetaminophen in Normal, Alcoholic, and 44. Banda, P. W., and B. D. Quart, ‘‘The 1980. Cirrhotic Subjects,’’ Gastroenterology and Effect of Mild Alcohol Consumption on the 10. Goldfinger, R. et al., ‘‘Concomitant Clinical Biology, 7:898–902, 1983. Metabolism of Acetaminophen in Man,’’ Alcohol and Drug Abuse Enhancing 28. Dietz, A. J. et al., ‘‘Effects of Alcoholism Research Communications in Chemical Acetaminophen Toxicity,’’ American Journal on Acetaminophen Pharmacokinetics in Pathology and Pharmacology, 38:57–70, of Gastroenterology, 70:385–388, 1978. Man,’’ Journal of Clinical Pharmacology, 1982. 11. Himmelstein, D. U., S. J. Woolhander, 24:205–208, 1984. 45. Strubelt, O., ‘‘Alcohol Potentiation of and R. D. Adler, ‘‘Elevated SGOT/SGPT Ratio 29. Wo´jcicki, J. et al., ‘‘The Effect of a Liver Injury,’’ Fundamental and Applied in Alcoholic Patients with Acetaminophen Single Dose of Ethanol on the Toxicology, 4:144–151, 1984. Hepatotoxicity,’’ American Journal of Pharmacokinetics of Paracetamol,’’ Polish 46. Rosen, G. M. et al., ‘‘Acetaminophen Gastroenterology, 79:718–720, 1984. Journal of Pharmacology and Pharmacy,’’ Hepatotoxicity an Alternative Mechanism,’’ 12. Johnson, M. W., P. A. Friedman, and 30:749–753, 1978. Biochemical Pharmacology, 32:2053–2059, W. E. Mitch, ‘‘Alcoholism, Nonprescription 1983. 30. Peterson, F. J. et al., ‘‘Ethanol Induction Drugs and Hepatotoxicity–The Risk From 47. The Encyclopedia of Alcoholism, Facts of Acetaminophen Toxicity and Unknown Acetaminophen Ingestion,’’ on File Publication, New York, 1982, s.v. Metabolism,’’ Life Sciences, 27:1705–1711, American Journal of Gastroenterology, ‘‘alcoholism’’ and ‘‘consumption’’. 1980. 76:530–532, 1981. 48. United States Pharmacopeial 31. Teschke, R., G. Stutz, and G. 13. Kartsonis, A., K. R. Reddy, and E. R. Dispensing Information—1993: Vol. I Drug Schiff, ‘‘Alcohol, Acetaminophen, and Strohmeyer, ‘‘Increased Paracetamol-Induced Information for the Health Care Professional, Hepatic Necrosis,’’ Annals of Internal Hepatotoxicity After Chronic Alcohol 13th ed., United States Pharmacopeial Medicine, 105:138–139, 1986. Consumption,’’ Biochemical and Biophysical Convention, Inc., Rockville, MD, pp. 3–4. 14. Kaysen, G. A. et al., ‘‘Combined Research Communications, 91:368–374, 49. United States Pharmacopeial Hepatic and Renal Injury in Alcoholics 1979. Dispensing Information—1993: Vol. II Advice During Therapeutic Use of Acetaminophen,’’ 32. Guerri, C., and S. Grisolia, ‘‘Decreased for the Patient Drug Information in Lay Archives of Internal Medicine, 145:2019– Glutathione in Rats Due to Chronic Intake of Language, 13th ed., United States 2023, 1985. Ethanol,’’ Federation Proceedings, 36:1541, Pharmacopeial Convention, Inc., Rockville, 15. Kromhout, J. P., J. D. Holtzman, and C. 1978. MD, p. 3. J. McClain, ‘‘Potentiation of Acetaminophen 33. Pessayre, D. et al., ‘‘Effect of Fasting on 50. Black, M., ‘‘Acetaminophen, Alcohol, Hepatotoxicity by Alcohol,’’ Metabolite-Mediated Hepatotoxicity in the and the Liver,’’ Philadelphia Medicine, Gastroenterology, 76:1288, 1980. Rat,’’ Gastroenterology, 77:264–271, 1979. 82:230–237, 1986. 16. LaBreque, D. R., and F. A. Mitros, 34. McLean, A. E. M., and P. A. Day, ‘‘The 51. Davis, A. M. et al., ‘‘Severe Hepatic ‘‘Increased Hepatotoxicity of Acetaminophen Effect of Diet on the Toxicity of Paracetamol Damage After Acetaminophen Use in in the Alcoholic,’’ Gastroenterology, 78:1310, and the Safety of Paracetamol-Methionine Psittacosis,’’ American Journal of Medicine, 1980. Mixtures,’’ Biochemical Pharmacology, 74:349–352, 1983. 17. Leist, M. H., L. E. Gluskin, and J. A. 24:37–42, 1975. 52. Kumar, S., and D. Rex, ‘‘Failure of Payne, ‘‘Enhanced Toxicity of 35. Mitchell, J. R. et al., ‘‘Acetaminophen- Physicians to Recognize Acetaminophen Acetaminophen in Alcoholics: Report of Induced Hepatic Necrosis IV Protective Role Hepatotoxicity in Chronic Alcoholics,’’ Three Cases,’’ Journal of Clinical of Glutathione,’’ Journal of Pharmacology Archives of Internal Medicine, 151:1189– Gastroenterology, 7:55–59, 1985. and Experimental Therapeutics, 187:211– 1191, 1991. 18. Lesser, P. B., M. M. Vietti, and W. D. 217, 1973. 53. Wooton, F., and W. Lee, Clark, ‘‘Lethal Enhancement of Therapeutic 36. Wright, N., and L. F. Prescott, ‘‘Acetaminophen Hepatotoxicity in the Doses of Acetaminophen by Alcohol,’’ ‘‘Potentiation by Previous Drug Therapy of Alcoholic,’’ Southern Medical Journal, Digestive Diseases and Sciences, 31:103–105, Hepatotoxicity Following Paracetamol 83:1047–1049, 1990. 1986. Overdosage,’’ Scottish Medical Journal, 54. Bray, G. et al., ‘‘The Effect of Chronic 19. Levinson, M., ‘‘Ulcer, Back Pain, and 18:56–58, 1973. Alcohol Intake on Prognosis and Outcome in Jaundice in an Alcoholic,’’ Hospital Practice, 37. Strubelt, O., F. Obermeier, and C. P. Paracetamol Overdose,’’ Human Oct:48N and 48S, 1983. Siegers, ‘‘The Influence of Ethanol Experimental Toxicology, 10:435–438, 1991. 20. Licht, H., L. B. Seeff, and H. J. Pretreatment on the Effects of Nine 55. Girre, C. et al., ‘‘Increased Metabolism Zimmerman, ‘‘Apparent Potentiation of Hepatotoxic Agents,’’ Acta Pharmacologica of Acetaminophen in Chronically Alcoholic Acetaminophen Hepatotoxicity by Alcohol,’’ and Toxicologica, 43:211–218, 1978. Patients,’’ Alcoholism Clinical and Annals of Internal Medicine, 12:511, 1985. 38. Sato, C., Y. Matsuda, and C. S. Lieber, Experimental Research, 17:170–173, 1993. 21. Litovitz, T. L. et al., ‘‘1987 Annual ‘‘Increased Hepatotoxicity of Acetaminophen 56. Comment No. C150, Docket No. 77N– Report of the American Association of Poison after Chronic Ethanol Consumption in the 0094, Dockets Management Branch. Control Centers National Data Collection Rat,’’ Gastroenterology, 80:140–148, 1981. 57. Bell, H., H. Schonsby, and N. System,’’ American Journal of Emergency 39. Sato, C., M. Nakano, and C. S. Lieber, Raknerud, ‘‘Severe Liver Damage After Medicine, 6:479–515, 1988. ‘‘Prevention of Acetaminophen-Induced Therapeutic Doses of Paracetamol,’’ Journal 22. McClain, C. J. et al., ‘‘Potentiation of Hepatotoxicity by Acute Ethanol of the Norwegian Medical Association, Acetaminophen Hepatotoxicity by Alcohol,’’ Administration in the Rat: Comparison with 107:1037–1040, 1987. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61055

58. Bidault, I. et al., ‘‘Do Cases of Hepatitis Drug Ingestion with Primary Emphasis on 90. Pirotte, J. H., ‘‘Apparent Potentiation by Due to the Subacute Toxicity of Aspirin, Over-the-Counter Ibuprofen, and Phenobarbital of Hepatotoxicity from Small Acetaminophen Exist?,’’ Therapy, 42:387– Naproxen,’’ draft of an unpublished paper Doses of Acetaminophen,’’ Annals of Internal 388, 1987. included in Comment No. C188, Docket No. Medicine, 101:403, 1984. 59. Erickson, R. A., and B. A. Runyon, 77N–0094, Dockets Management Branch. 91. Rosenberg, D. M. et al., ‘‘Acetaminophen Hepatotoxicity Associated 75. ‘‘A Retrospective Review of Serious ‘‘Acetaminophen and Hepatic Dysfunction in with Alcoholic Pancreatitis,’’ Archives of Acute Upper Gastrointestinal Bleeding Infectious Mononucleosis,’’ Southern Internal Medicine, 144:1509, 1513, 1984. Associated with the Prior Use of Alcohol and Medical Journal, 70:660–661, 1977. 60. Luquel, L. et al., ‘‘Acute Hepato- Nonsteroidal Anti-inflammatory Drugs,’’ 92. Ware, A. J. et al., ‘‘Acetaminophen and Nephritis in an Alcoholic Following a draft of an unpublished paper included in the Liver,’’ Annals of Internal Medicine, Therapeutic Dose of Acetaminophen,’’ La Comment No. C188, Docket No. 77N–0094, 88:267–268, 1978. Presse Medicale, 17:1318, 1988. Dockets Management Branch. 93. Whitcomb, D. C., and G. D. Block, 61. Stolt, C., and S. Johnsen, ‘‘A 76. ‘‘Summary of Prospective Case Control ‘‘Association of Acetaminophen Therapeutic Intake of Paracetamol Causes Study from SUNY Health Science Center on Hepatotoxicity with Fasting and Ethanol Acute Renal Insufficiency and Liver the Epidemiology of Nonsteroidal Anti- Use,’’ Journal of the American Medical Damage,’’ Larkartidningen, 81:1313, 1984. inflammatory Drug Use in Patients with Association, 272:1845–1850, 1994. 62. Vilstrup, V., N. C. Henningsen, and L. Upper Gastrointestinal Bleeding,’’ draft of an 94. Letter from P. A. Malone, Stein, F. Hansen, ‘‘Liver Damage After unpublished paper included in Comment No. Mitchell, and Mezines, to D. A. Kessler, FDA, Paracetamol,’’ Ugeskrift for Laeger, 139:831– C188, Docket No. 77N–0094, Dockets dated March 11, 1996, in OTC Vol. 834, 1977. Management Branch. 03AWNPR, Docket No. 77N–094W, Dockets 63. Critchley, J. et al., ‘‘Is There a Place for 77. Kelly, J., D. Kaufman, and S. Shapiro, Management Branch. Cimetidine or Ethanol in the Treatment of ‘‘The Risk of Major Upper Gastrointestinal 95. Zimmerman, H. J., and W. C. Maddrey, Paracetamol Poisoning,’’ Lancet, 1:1375– Bleeding Among Users of Aspirin, Ibuprofen, ‘‘Acetaminophen (Paracetamol) 1376, 1983. Naproxen, at Various Levels of Alcohol Hepatotoxicity with Regular Intake of 64. Critchley, J. et al., ‘‘Paracetamol Consumption,’’ draft of an unpublished Alcohol: Analysis of Instances of Therapeutic Metabolism in Heavy Drinkers,’’ British paper included in Comment No. C188, Misadventure,’’ Hepatology, 22:767–773, Journal of Clinical Pharmacology, 13:276P– Docket No. 77N–0094, Dockets Management 1995. 277P, 1982. Branch. 96. Lee, W. M., ‘‘Drug Induced 65. Lauterburg, B. H., and M. E. Velez, 78. Strom, B., ‘‘Gastrointestinal Bleeding Hepatotoxicity,’’ New England Journal of ‘‘Glutathione Deficiency in Alcoholics: Risk Associated with Over-the-Counter Use of Medicine, 333:1118–1127, 1995. Factor for Paracetamol Hepatotoxicity,’’ Gut, Ibuprofen and Aspirin,’’ draft of an 97. Tarnawski, A. et al., ‘‘Alcohol Injury to 29:1153–1157, 1988. unpublished paper included in Comment No. the Normal Gastric Mucosa: Endoscopic, 66. Farrell, G. C., W. G. E. Cooksley, and C188, Docket No. 77N–0094, Dockets Histologic, and Functional Assessment,’’ L. W. Powell, ‘‘Drug Metabolism in Liver Management Branch. Clinical Investigations in Medicine, 10:259– Disease: Activity of Hepatic Microsomal 79. Henry, D., A. Dobson, and C. Turner, 263, 1987. Metabolizing Enzymes,’’ Clinical ‘‘Variability in the Risk of Major 98. Soll, A. H., ‘‘Gastritis,’’ in Cecil Pharmacology and Therapeutics, 26:483– Gastrointestinal Complications from Textbook of Medicine, 19th ed., edited by J. 492, 1979. Nonaspirin Nonsteroidal Anti-inflammatory B. Wyngaarden, L. H. Smith, and J. C. 67. Gabrielle, L. et al., ‘‘Determination of Drugs,’’ Gastroenterology, 105:1078–1088, Bennett, W. B. Saunders Co., Philadelphia, Human Liver Cytochrome P450 by a 1993. pp. 649–650, 1992. Micromethod Using Electron Paramagnetic 80. Comments No. C198, C199, and C200, 99. Domschke, S., and W. Domschke, Resonance. Study of 141 Liver Biopsies,’’ Docket No. 77N–0094, Dockets Management ‘‘Gastrointestinal Damage Due to Drugs, Gastroenterology and Clinical Biology, 1:775– Branch. Alcohol and Smoking,’’ in Clinics in 782, 1977. 81. Black, M., ‘‘Acetaminophen Gastroenterology, W. B. Saunders Co., 68. Schoene, B. et al., ‘‘Determination of Hepatotoxicity,’’ Annual Reviews in London, pp. 419–424, 1984. Drug Metabolizing Enzymes in Needle Medicine, 35:577–593, 1984. 100. MacMath, T. L., ‘‘Alcohol and Biopsies of Human Liver,’’ European Journal 82. Proudfoot, A. T., and N. Wright, ‘‘Acute Gastrointestinal Bleeding,’’ Emergency of Clinical Pharmacology, 4:65–73, 1972. Paracetamol Poisoning,’’ British Medical Medicine Clinics of North America, 8:859– 69. Data and information provided for June Journal, 3:557–558, 1970. 872, 1990. 28 and 29, 1993, meeting of the FDA 83. Arthurs, Y., and J. F. Fielding, 101. Steering Committee of the Physicians’ Nonprescription Drugs Advisory Committee, ‘‘Paracetamol and Chronic Liver Disease,’’ Health Study Research Group, ‘‘Final Report in OTC Vol. 03AWNPR, Docket No. 77N– Journal of the Irish Medical Association, on the Aspirin Component of the Ongoing 094W, Dockets Management Branch. 73:273–274, 1980. Physicians’ Health Study,’’ New England 70. Summary minutes of the June 28 and 84. Bonkowsky, H. L., ‘‘Chronic Hepatic Journal of Medicine, 321:129–135, 1989. 29, 1993, meeting of the FDA Inflammation and Fibrosis Due to Low Doses 102. Peto, R. et al., ‘‘Randomized Trial of Nonprescription Drugs Advisory Committee, of Paracetamol,’’ Lancet, 1:1016–1018, 1978. Prophylactic Daily Aspirin in British Male in OTC Vol. 03AWNPR, Docket No. 77N– 85. Bravo-Ferna´ndez, E. F. et al., Doctors,’’ British Medical Journal, 296:313– 094W, Dockets Management Branch. ‘‘Hepatotoxicity After Prolonged Use of 316, 1988. 71. Data and information provided for the Acetaminophen: Case Report,’’ Boletin- 103. Juul-Mo¨ller, S. et al., ‘‘Double-Blind September 8, 1993, joint meeting of the FDA Asociacion Medica de Puerto Rico, 80:417– Trial of Aspirin in Primary Prevention of Nonprescription Drugs and Arthritis Drugs 419, 1988. Myocardial Infarction in Patients with Stable Advisory Committees, in OTC Vol. 86. Edwards, R., and J. Oliphant, Chronic Angina Pectoris,’’ Lancet, 340:1421– 03AWNPR, Docket No. 77N–094W, Dockets ‘‘Paracetamol Toxicity in Chronic Alcohol 1425, 1992. Management Branch. Abusers—A Plea for Greater Consumer 104. Elwood, P. C., and P. M. Sweetnam, 72. Summary minutes of the September 8, Awareness,’’ New Zealand Medical Journal, ‘‘Aspirin and Secondary Mortality After 1993, joint meeting of the FDA 105:174–175, 1992. Myocardial Infarction,’’ Lancet, II:1313–1315, Nonprescription Drugs and Arthritis Drugs 87. Eriksson, L. S. et al., ‘‘Hepatotoxicity 1979. Advisory Committees, in OTC Vol. Due to Repeated Intake of Low Doses of 105. Fields W. S., et al., ‘‘Controlled Trial 03AWNPR, Docket No. 77N–094W, Dockets Paracetamol,’’ Journal of Internal Medicine, of Aspirin in Cerebral Ischemia,’’ Stroke, Management Branch. 231:567–570, 1992. 8:301–316, 1977. 73. Comment No. C193, Docket No. 77N– 88. Itoh, S. et al., ‘‘Cirrhosis Following 12 106. UK–TIA Study Group, ‘‘United 0094, Dockets Management Branch. Years of Treatment with Acetaminophen,’’ Kingdom Transient Ischaemic Attack (UK- 74. ‘‘A Prospective Observational Study of Hepato-Gastroenterology, 30:58, 1983. TIA) Aspirin Trial: Interim Results,’’ British Adult Patients with Upper Gastrointestinal 89. Olsson, R., ‘‘Increased Hepatic Medical Journal, 296:316–320, 1988. Disease with Hemorrhage and a History of Sensitivity to Paracetamol,’’ Lancet, 2:152– 107. Bousser, M. G. et al., ‘‘‘AICLA’ Alcohol and Nonsteroidal Anti-inflammatory 153, 1978. Controlled Trial of Aspirin and Dipyridamole 61056 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules in the Secondary Prevention of Athero- 123. Pohorecky, L. A., ‘‘Interaction of authority delegated to the Commissioner Thrombotic Cerebral Ischemia,’’ Stroke, 14:5– Alcohol and Stress at the Cardiovascular of Food and Drugs, it is proposed that 14, 1983. Level,’’ Alcohol, 7:537–546, 1990. 21 CFR part 201 be amended as follows: 108. A Swedish Cooperative Study, ‘‘High- 124. American Heart Association, Dose Acetylsalicylic Acid After Cerebral ‘‘Alcohol,’’ in OTC Vol. 03AWNPR, Docket PART 201ÐLABELING Infarction,’’ Stroke, 18:325–334, 1987. No. 77N–094W, Dockets Management 109. Fields, W. S. et al., ‘‘Controlled Trial Branch. 1. The authority citation for 21 CFR of Aspirin in Cerebral Ischemia. Part II: 125. Nutrition and Your Health: Dietary part 201 continues to read as follows: Surgical Group,’’ Stroke, 9:309–318, 1978. Guidelines for Americans, U.S. Department Authority: 21 U.S.C. 321, 331, 351, 352, 110. The SALT Collaborative Group, of Agriculture and U.S. Department of Health 353, 355, 356, 357, 358, 360, 360b, 360gg– ‘‘Swedish Aspirin Low-dose Trial (SALT) of and Human Services, Home and Garden 360ss, 371, 374, 379e; 42 U.S.C. 216, 241, 75 mg Aspirin as Secondary Prophylaxis Bulletin No. 232, U.S. Department of 262, 264. After Cerebrovascular Ischaemic Events,’’ Agriculture. Lancet, 338:1345–1349, 1991. 126. Gilman, A. G. et al., editors, The 2. New § 201.322 is added to subpart 111. The Coronary Drug Project Research Pharmacological Basis of Therapeutics, 8th G to read as follows: Group, ‘‘Aspirin in Coronary Heart Disease,’’ ed., McGraw-Hill, New York, pp. 643 and Journal of Chronic Disease, 29:625–642, 664–668, 1990. § 201.322 Over-the-counter drug products 1976. 127. Dukes, M. N. G., editor, Meyler’s Side containing internal analgesic/antipyretic 112. Aspirin Myocardial Infarction Study Effects of Drugs, 12th ed., Elsevier, active ingredients; required alcohol Research Group, ‘‘A Randomized, Controlled Amsterdam, pp. 201–205, 1992. warning. Trial of Aspirin in Persons Recovered from 128. Gennaro, A. R. et al., editors, Remington’s Pharmaceutical Sciences, 18th (a) People who regularly consume Myocardial Infarction,’’ Journal of the ed., Mack Publishing Co., Easton, PA, pp. large quantities of alcohol have an American Medical Association,’’ 243:661– 1112, 1117, and 1118, 1990. increased risk of adverse effects 669, 1980. 129. Van Tyle, K. W., ‘‘Internal Analgesic (possible liver damage or 113. The Persantine-Aspirin Reinfarction Products,’’ in Handbook of Nonprescription Study Research Group, ‘‘Persantine and gastrointestinal bleeding) when they use Drugs, 10th ed., American Pharmaceutical over-the-counter (OTC) drug products Aspirin in Coronary Heart Disease,’’ Association, Washington, pp. 59 and 62, Circulation, 62:449–461, 1980. containing internal analgesic/antipyretic 1993. active ingredients. FDA concludes that 114. Breddin, K. et al., ‘‘The German- 130. Greene, J. M., and R. N. Winickoff, Austrian Aspirin Trial: A Comparison of ‘‘Cost-Conscious Prescribing of Nonsteroidal the labeling of OTC drug products Acetylsalicylic Acid, Placebo and Anti-Inflammatory Drugs for Adults with containing internal analgesic/antipyretic Phenprocoumon in Secondary Prevention of Arthritis,’’ Archives of Internal Medicine, active ingredients should advise Myocardial Infarction,’’ Circulation, 62 152:1995–2002, 1992. consumers with a history of heavy (Suppl V):63–72, 1980. 131. Langman, M. J. S. et al., ‘‘Risks of alcohol use or abuse to consult a 115. Lewis, H. K. et al., ‘‘Protective Effects Bleeding Peptic Ulcer Associated with physician about the use of these of Aspirin Against Acute Myocardial Individual Non-Steroidal Anti-Inflammatory Infarction and Death in Men with Unstable products. Accordingly, any OTC drug Drugs,’’ The Lancet, 343:1075–1078, 1994. product, labeled for adult use, Angina,’’ New England Journal of Medicine, 132. Peura, D. et al., ‘‘ACG Bleeding 309:396–403, 1983. Registry (BR): Preliminary Findings,’’ abstract containing internal analgesic/antipyretic 116. Petersen, P. et al., ‘‘Placebo- of an unpublished study in OTC Vol. active ingredients (including, but not Controlled, Randomized Trial of Warfarin 03AWNPR, Docket No. 77N–094W, Dockets limited to, acetaminophen, aspirin, and Aspirin for Prevention of Management Branch. carbaspirin calcium, choline salicylate, Thromboembolic Complications in Chronic 133. Draft Summary Minutes of the ibuprofen, ketoprofen, magnesium Atrial Fibrillation,’’ Lancet, 1:175–179, 1989. Nonprescription Drugs Advisory Committee salicylate, naproxen sodium, and 117. Sanz, G. et al., ‘‘Prevention of Early and the Arthritis Advisory Committee, July sodium salicylate) shall bear an alcohol Aortocoronary Bypass Occlusion by Low- 14, 1995, in OTC. Vol. 03AWNPR, Docket warning statement in its labeling as Dose Aspirin and Dipyridamole,’’ No. 77N–094W, Dockets Management follows: Circulation, 82:765–773, 1990. Branch. 118. Gavaghan, T. et al., ‘‘Immediate 134. ‘‘Approved Labeling, Aleve,’’ NDA (1) Acetaminophen. ‘‘Alcohol Postoperative Aspirin Improves Vein Graft 20–204, in OTC Vol. 03AWNPR, Docket No. Warning’’ [heading in boldface type]: ‘‘If Patency Early and Late After Coronary Artery 77N–094W, Dockets Management Branch. you drink 3 or more alcoholic beverages Bypass Graft Surgery,’’ Circulation, 83:1526– 135. ‘‘Approved Labeling, Orudis,’’ NDA daily, ask your doctor whether you 1533, 1991. 20–429, in OTC Vol. 03AWNPR, Docket No. should take [insert product name] or 119. Elwood, P. C. et al., ‘‘A Randomized 77N–094W, Dockets Management Branch. other pain relievers. [Product name] Controlled Trial of Acetyl-Salicylic Acid in 136. ‘‘Approved Labeling, Actron,’’ NDA may increase your risk of liver damage.’’ the Secondary Prevention of Mortality from 20–499, in OTC Vol. 03AWNPR, Docket No. (2) Aspirin, carbaspirin calcium, Myocardial Infarction,’’ British Medical 77N–094W, Dockets Management Branch. 137. ‘‘Approved Labeling, Tylenol choline salicylate, ibuprofen, Journal, 1:436–440, 1974. ketoprofen, magnesium salicylate, 120. Slattery, C. P. et al., ‘‘Risks of Extended Relief Caplets,’’ NDA 19–872, in Gastrointestinal Bleeding During Secondary OTC Vol. 03AWNPR, Docket No. 77N–094W, naproxen sodium, and sodium Prevention of Vascular Events with Aspirin— Dockets Management Branch. salicylate. ‘‘Alcohol Warning’’ [heading Analysis of Gastrointestinal Bleeding During 138. Letter from D. L. Bowen, FDA, to R. in boldface type]: ‘‘If you drink 3 or the UK-TIA Trial,’’ Gut, 37:509–511, 1995. W. Soller, Nonprescription Drug more alcoholic beverages daily, ask your 121. Marmot, M., and E. Brunner, ‘‘Alcohol Manufacturers Association, coded LET126, doctor whether you should take [insert and Cardiovascular Disease: The Status of the Docket No. 77N–0094, Dockets Management product name] or other pain relievers. U-Shaped Curve,’’ British Medical Journal, Branch. [Product name] may increase your risk 139. Laughery, K. et al., ‘‘Explicitness of 7:565–568, 1991. of stomach bleeding.’’ 122. National Institutes of Health, Eighth Consequence Information in Warnings,’’ Safety Science, 16:597–613, 1993. (3) Combinations of acetaminophen Special Report to the U.S. Congress on with other analgesic/antipyretic active Alcohol and Health from the Secretary of List of Subjects in 21 CFR Part 201 Health and Human Services, U.S. Department ingredients listed in § 201.322(a)(2). of Health and Human Services, National Drugs, Labeling, Reporting and ‘‘Alcohol Warning’’ [heading in boldface Institutes of Health, and National Institute on recordkeeping requirements. type]: ‘‘If you drink 3 or more alcoholic Alcohol Abuse and Alcoholism, NIH Therefore, under the Federal Food, beverages daily, ask your doctor Publication No. 94-3699, 1994. Drug, and Cosmetic Act and under whether you should take [insert product Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61057 name] or other pain relievers. [Product FOR FURTHER INFORMATION CONTACT: corrections to the proposed regulations, name] may increase your risk of liver Bettie Rushing, Bureau of Indian Affairs which were the subject of FR Doc. 97– damage and stomach bleeding.’’ (202) 208–4400. 4686, are corrected as follows: (b) Requirements to supplement SUPPLEMENTARY INFORMATION: approved application. Holders of § 11.100 [Corrected] approved applications for OTC drug Background In the Federal Register published July products that contain internal analgesic/ The proposed rule that is the subject 5, 1996 on page 35159, and corrected on antipyretic active ingredients that are of these corrections supersedes 25 CFR February 26, 1997 on 1997 on page subject to the requirements of paragraph 11.100(a) and affects those tribes that 8665, in § 11.100, paragraph (a) is, (a) of this section must submit have exercised their inherent corrected to read as follows: supplements under § 314.70(c) of this sovereignty by removing the names of § 11.100 Where are Courts of Indian chapter to include the required warning those tribes from the list of Courts of Offenses established? in the product’s labeling. Such labeling Indian Offenses. (a) Unless indicated otherwise in this may be put into use without advance The Assistant Secretary-Indian part, the regulations in this part apply approval of FDA provided it includes at Affairs, or her designee, has received to the Indian country (as defined in 18 least the information included in law and order code adopted by the U.S.C. 1151) occupied by the tribes paragraph (a) of this section. Confederated Tribes of the Goshute listed below: (c) Any drug product subject to this Reservation of Nevada in accordance (1) Red Lake Band of Chippewa section that is not labeled as required with their constitutions and by-laws and Indians (Minnesota). and that is initially introduced or approved by the appropriate bureau (2) Te-Moak Band of Western initially delivered for introduction into official. The Assistant Secretary-Indian Shoshone Indians (Nevada). interstate commerce after (date 6 Affairs recognizes that this court was (3) Yomba Shoshone Tribe (Nevada). months after established in accordance with the (4) Kootenai Tribe (Idaho). date of publication of the final rule in tribe’s constitutions and by-laws. Also, (5) Shoalwater Bay Tribe the Federal Register), is misbranded the list of Courts of Indian Offenses has (Washington). under section 502 of the Federal Food, been corrected to include tribes (6) Eastern Band of Cherokee Indians Drug, and Cosmetic Act and is subject inadvertently omitted from the (North Carolina). to regulatory action. correction and to reflect the decision of (7) Ute Mountain Ute Tribe the Court in Fletcher v. United States, Dated: August 20, 1997. (Colorado). No. 95–5208 (10th Cir. Dec. June 10, William B. Schultz, (8) Quechan Indian Tribe (Arizona) 1997, reh. den. Aug. 18, 1997). Deputy Commissioner for Policy. Inclusion in § 11.100, Where are (except resident members). [FR Doc. 97–30035 Filed 11–13–97; 8:45 am] Courts of Indian Offenses established?, (9) Hoopa Valley Tribe, Yurok Tribe BILLING CODE 4160±01±F does not defeat the inherent sovereignty and Coast Indian Community of of a tribe to establish tribal courts and California (California jurisdiction exercise jurisdiction under tribal law. limited to special fishing regulations). DEPARTMENT OF THE INTERIOR Tillett v. Lujan, 931 F.2d 636, 640 (10th (10) Louisiana Area (includes Cir. 1991) (CFR courts ‘‘retain some Coushatta and other tribes located in the Bureau of Indian Affairs characteristics of an agency of the State of Louisiana which occupy Indian federal government’’ but they ‘‘also country and which accept the 25 CFR Part 11 function as tribal courts’’); Combrink v. application of this part); Provided, that RIN 1076±AD76 Allen, 20 Indian L. Rep. 6029, 6030 (Ct. this part shall not apply to any Ind. App., Tonkawa, Mar. 5, 1993) (CFR Louisiana tribe other than the Coushatta Law and Order on Indian Reservations; court is a ‘‘federally administered tribal Tribe until notice of such application Correction court’’); Ponca Tribal Election Board v. has been published in the Federal Snake, 17 Indian L. Rep. 6085, 6088 (Ct. Register. AGENCY: Bureau of Indian Affairs, (11) For the following tribes located in Interior. Ind. App., Ponca, Nov. 10, 1988) (‘‘The Courts of Indian Offenses act as tribal the former Oklahoma Territory ACTION: Correction to proposed courts since they are exercising the (Oklahoma): regulations. sovereign authority of the tribe for (i) Absentee Shawnee Tribe of Indians of Oklahoma. SUMMARY: which the court sits.’’). Such exercise of This document contains (ii) Apache Tribe of Oklahoma. corrections to the proposed regulations inherent sovereignty and the establishment of tribal courts shall (iii) Caddo Tribe of Oklahoma. which were published Friday, July 5, (iv) Cheyenne-Arapaho Tribe of 1996 (61 FR 35158) and corrections to comply with the requirements in 25 CFR 11.100(c). Oklahoma. the proposed regulations which were (v) Citizen Band of Potawatomi published Wednesday, February 26, Need for Correction Indians of Oklahoma. 1997 (62 FR 8665). The proposed rule As published, the proposed rule and (vi) Comanche Tribe of Oklahoma amends regulations governing Courts of the correction to the proposed rule (Except Comanche Children’s Court). Indian Offenses. contain errors which may prove to be (vii) Delaware Tribe of Western DATES: Comments must be received on misleading and are in need of Oklahoma. or before December 15, 1997. clarification. (viii) Fort Sill Apache Tribe of ADDRESSES: Comments are to be mailed Oklahoma. to Bettie Rushing, Office of Tribal Correction of Publication (ix) Iowa Tribe of Oklahoma. Services, Bureau of Indian Affairs, 1849 Accordingly, the publication on July (x) Kaw Tribe of Oklahoma. C Street, NW, MS 4641–MIB, 5, 1996 (61 FR 35158), of the proposed (xi) Kickapoo Tribe of Oklahoma. Washington, DC 20240; or, hand regulations, which were the subject of (xii) Kiowa Tribe of Oklahoma. delivered to Room 4641 at the same FR Doc. 96–16039, and the publication (xiii) Otoe-Missouria Tribe of address. of February 26, 1997 (62 FR 8664), Oklahoma. 61058 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

(xiv) Pawnee Tribe of Oklahoma. CHAMPUS shall be excluded from all weights we would calculate for such (xv) Ponca Tribe of Oklahoma. other programs and activities involving transplants. (xvi) Tonkawa Tribe of Oklahoma. Federal financial assistance, such as Since 1987 we have continued to (xvii) Wichita and Affiliated Tribes of Medicare or Medicaid, and adding collect data on these services. From the Oklahoma. violations of our balance billing or beginning, heart transplants were (12) For the following tribes located in claims filing requirements to the list of grouped to DRG 103 and exempted. For the former Indian Territory (Oklahoma): provider actions considered violations Fiscal Year 1991 the Health Care (i) Chickasaw Nation. of the TRICARE/CHAMPUS program. Financing Administration (HCFA) (ii) Choctaw Nation. DATES: Comments must be received on created DRG 480 for liver transplants, (iii) Thlopthlocco Tribal Town. or before January 13, 1998. but we continued to exempt them. In our notice of updated rates and (iv) Seminole Nation. ADDRESSES: Tricare Support Office (v) Eastern Shawnee Tribe. (TSO), Program Development Branch, weights for Fiscal Year 1991, which was (vi) Miami Tribe. Aurora, CO 80045–6900. published on November 5, 1990 (55 FR 46545), we noted that we intended to (vii) Modoc Tribe. FOR FURTHER INFORMATION CONTACT: consider including both heart and liver (viii) Ottawa Tribe. Kathleen Larkin, Office of the Assistant (ix) Peoria Tribe. transplants in our DRG system in the Secretary of Defense (Health Affairs), future, and we invited any comments in (x) Quapaw Tribe. telephone (703) 695–3350. (xi) Wyandotte Tribe. that regard. We received none. Questions regarding payment of Since we have enough claims data to (xii) Seneca-Cayuga Tribe. specific claims under the CHAMPUS (xiii) Osage Tribe. calculate accurate weights for these allowable charge method should be transplants, we are proposing to end the Dated: October 29, 1997. addressed to the appropriate TRICARE/ DRG exemption for all CHAMPUS Ada E. Deer, CHAMPUS contractor. covered solid organ transplants for Assistant Secretary—Indian Affairs. SUPPLEMENTARY INFORMATION: which there is an assigned DRG and [FR Doc. 97–29938 Filed 11–13–97; 8:45 am] enough data to calculate the DRG I. Proposed Changes Regarding The weight. Just as Medicare does, we will BILLING CODE 4310±02±P Champus DRG-Based Payment System continue to exempt acquisition costs for The final rule published on all CHAMPUS covered solid organ DEPARTMENT OF DEFENSE September 1, 1987, (52 FR 32992) set transplants. forth the basic procedures used under B. Payment Requests for Capital and Office of the Secretary the CHAMPUS DRG-based payment system. This was subsequently amended Direct Medical Education Costs 32 CFR Part 199 by final rules published on August 31, Initially we required that hospitals 1988 (53 FR 33461), October 21, 1988 submit their request for payment of RIN±0720±AA37 (53 FR 41331), December 16, 1988 (53 capital and direct medical education Civilian Health and Medical Program of FR 50515), May 30, 1990 (55 FR 21863), costs within three months of the end of the Uniformed Services (CHAMPUS); and October 22, 1990 (55 FR 42560). the hospital’s Medicare cost-reporting TRICARE Program; Reimbursement This rule proposes to amend 32 CFR 199 period. However, some hospitals to conform to changes made to the encountered difficulties in meeting this AGENCY: Office of the Secretary, DoD. Medicare Prospective Payment System deadline, because HCFA implemented ACTION: Proposed rule. (PPS) upon which the CHAMPUS DRG- changes which resulted in extensions to based payment system is modeled and the filing deadline. Therefore, we often SUMMARY: This rule proposes to revise required by law to follow whenever did not enforce our deadline, and as of certain requirements and procedures for practicable. In addition, the rule October 1988 we eliminated the reimbursement under the TRICARE proposes to: eliminate the requirement requirement entirely. program, the purpose of which is to for the physician attestation form and We eliminated the requirement implement a comprehensive managed change the requirement for physician because we believed hospitals would health care delivery system composed of acknowledgment statements; clarify submit their requests at the earliest military medical treatment facilities and authorized payment reductions by possible time anyway. Also, we believed CHAMPUS. Issues addressed in this managed care support contractors for there would be no adverse impact on proposed rule include: implementation noncompliance with required TRICARE/CHAMPUS. Neither of these of changes made to the Medicare utilization review procedures and; limit has proven to be correct. We continually Prospective Payment System (PPS) upon the ambulatory surgery group payment receive these requests well after the end which the CHAMPUS DRG-based rate to the amount that would be of the Medicare cost-reporting period— payment system is modeled and allowed if the services were provided on in some cases several years later. As a required by law to follow wherever an inpatient basis. result, it is necessary for our contractors practicable, along with changes to make to retain claims data in their systems our DRG-based payment system operate A. Heart and Liver Transplants indefinitely, so that they can verify the better; extension of the balance billing When we first implemented the reported amounts when the requests are limitations currently in place for CHAMPUS DRG-based payment system submitted. This is proving to be a very individual and professional providers to in 1987, we exempted all services burdensome and costly requirement for non-institutional, non-professional related to heart and liver our contractors. providers; adjusting the CHAMPUS transplantation. Although both of these On June 27, 1995, HCFA published a maximum allowable charge (CMAC) rate types of transplants are subject to the final rule (60 FR 33137) extending the in the small number of cases where the Medicare PPS, we initially exempted time frame providers have to file cost CMAC rate is less than the Medicare them because at that time we had reports from no later than 3 months after rate; and implementing the government- limited experience and claims data for the close of the period covered by the wide debarment rule where any them. We believed these limitations report to no later than 5 months after the provider excluded or suspended form could significantly skew the relative close of that period. The rule also Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61059 changed the regulations for granting the crucial components (number of effective in accordance with existing extensions to providers. Under the new interns, residents and beds) can change requirements. In no case will the regulation, an extension may be granted from year to year, and since many CHAMPUS-specific factor be effective by the intermediary only when a hospitals do not submit requests for retroactively. provider’s operations were significantly payment of capital and direct medical For children’s hospitals which have adversely affected due to extraordinary education costs, we believe it is indirect medical education factors for circumstances over which the provider necessary to establish an alternative CHAMPUS, the factor will be had no control, such as flood or fire. We updating method. eliminated as of October 1 of each year are proposing to adopt these same We are proposing to use the Medicare if during the past year, the hospital did requirements for submitting requests for adjustment factor for any hospital for not provide the contractor with updated payment of capital and direct medical which a CHAMPUS-specific factor has information on the number of its education costs with TRICARE/ not been calculated based on the interns, residents and beds. Since CHAMPUS. hospital’s request for payment of capital amounts for capital and direct medical Currently, TRICARE/CHAMPUS has and direct education costs. We will education are included in the national no deadline, other than the six year update the factors using the Medicare children’s hospital differential, statute of limitations, for submitting amounts as of October 1 of each year children’s hospitals are not required to payment requests for Medicare cost- when we routinely update the DRG rates submit capital and direct medical reporting periods. In order to allow up and weights. Any hospital which has education payment requests. Because of to close out our data for these periods, not submitted a capital and direct this, the contractor is not able to update we are proposing that any capital and medical education payment request to the CHAMPUS-specific factor unless direct medical education payment CHAMPUS since the previous October requested by the children’s hospital. requests that fall within the six year 1, will be assigned the most recent For Fiscal Year 1998, HCFA revised statute of limitations and the effective Medicare adjustment factor. its indirect medical education date of this change must be submitted HCFA uses a slightly different adjustment formula to gradually reduce to the appropriate TRICARE/CHAMPUS formula than that used by CHAMPUS, the current level of IDME adjustment contractor no later than 5 months after and we are aware that this will result in over the next several years. Since the the effective date of this change. a different adjustment factor than would IDME formula used by CHAMPUS does In addition, since capital and direct otherwise be used. Nevertheless, we not include disproportionate share medical education costs are included in believe this is justified. When the hospitals (DSHs), the variables in the the national children’s hospital Medicare factor is used, the difference is formula are different from Medicare’s differential, we are proposing to likely to be small. In addition, however, the percentage reductions that eliminate the clause allowing children’s CHAMPUS accounts for a very small will be applied to Medicare’s formula hospitals to request reimbursement of portion of most hospital’s claims, and are being adopted by CHAMPUS. capital and direct medical education those hospitals which do not request D. Long Stay Outliers costs as an alternative to being paid the payment of capital and direct medical national differential. education costs probably have few, if For Fiscal Year 1998, HCFA any, CHAMPUS admissions. Therefore, eliminated payment for day outliers, C. Indirect Medical Education the financial impact of using the referred to as long stay outliers under Adjustment Factor Medicare factor will be negligible. Yet it CHAMPUS. CHAMPUS also eliminated An indirect medical education (IDME) will ensure that the factors are kept long stay outliers for all cases except adjustment factor is calculated for all current, so that factors which are no children’s hospitals and neonates for hospitals which have teaching programs longer representative of a hospital’s Fiscal Year 1998. We are proposing to approved under the Medicare teaching program are not used eliminate the long stay outliers for regulation. This factor is calculated indefinitely. And, of course, hospitals children’s hospitals and neonates for using a formula developed by HCFA can ensure that a CHAMPUS-specific Fiscal Year 1999. (see our previous final rules for a factor is used simply by submitting a For Fiscal Year 1993, HCFA changed discussion of the application of this request for payment of capital and direct the payment procedures for day outlier formula to CHAMPUS), and is based on medical education costs. per diems under the PPS. Prior to this the number of interns and residents and For hospitals which have indirect change, the day outlier per diem was the number of beds in the hospital. Each medical education factors for calculated using the DRGs geometric DRG-based payment is increased by this CHAMPUS but are not subject to the mean length of stay and a marginal factor for that hopsital. Medicare PPS, we will eliminate the payment factor of 60 percent. For Initially, the number of residents and factor if a CHAMPUS-specific factor discharges occurring on or after October interns for each hospital was derived cannot be calculated based on a current 1, 1992, HCFA revised the day outlier from the most recently available audited request from the hospital for payment of payment policy to reflect that the per HCFA cost report, and the number of capital and direct medical education diem payment would be calculated beds was derived from the American costs. The factor will be eliminated as using the arithmetic mean and a Hospital Association Annual Survey of of October 1 if no capital and direct marginal payment factor of 55 percent. Hospitals. The factors have been medical education payment request has This meant that the per diem day outlier updated annually based on data been received since the previous payment under the PPS for operating submitted by hospitals on the annual October 1. costs would be determined by dividing request for payment of capital and direct In any case where a hospital submits the standard DRG payment by the medical education costs. a capital and direct medical education arithmetic mean length of stay for that While this updating procedure payment request after the Medicare DRG, and multiplying the result by 55 ensures that hospitals’ factors are as factor has been implemented (or the percent. The change in the payment current as possible, it is dependent factor has been eliminated for hospitals policy for day outliers provided better upon the hospitals’ submission of not subject to the Medicare PPS, protection against costly cases for requests for payment of capital and including children’s hospitals), the hospitals, while maintaining a more direct medical education costs. Since CHAMPUS-specific factor will become appropriate level of payment for cases 61060 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules with extraordinarily long lengths of stay any transfer stay plus 125 percent of the these new requirements beginning in that were not also extraordinarily costly. per diem rate for all remaining days Fiscal Year 1996. CHAMPUS did not adopt the PPS per before transfer, up to the full DRG J. Empty and Low-Volume DRGs diem day outlier changes at that time amount. This proposed change will because it required a regulatory change allow hospitals to be compensated more Currently, 32 CFR 199.14 (a)(1)(iii)(B) and there was a moratorium on appropriately for the treatment they specifies that the Medicare weight shall publication of rules. Over the years, furnish to patients before transfer. be used for any DRG with less than 10 HCFA has reduced the marginal Transferring hospitals will continue to occurrences in the CHAMPUS database. payment factor for day outliers from 55 be paid in full for discharges classified Since the CHAMPUS weights are used percent to 47 percent to 44 percent, to into DRG 456 (burns, transferred to by military treatment facilities and by 33 percent, to the point of eliminating another acute care facility or DRG 601 an increasingly large number of state payment of day outliers, effective with (neonate, transferred less or equal to 4 Medicaid programs, the direct discharges occurring after September 30, days old). substitution of the Medicare weight for 1997. CHAMPUS adopted the day the CHAMPUS weight, causes outlier marginal payment factor of 47 G. Elimination of Separate Adjusted inconsistencies. These inconsistencies percent for Fiscal Year 1995, 44 percent Standardized Amounts for Rural Areas may pose more of a problem for other for Fiscal Year 1996, and 33 percent for Beginning in Fiscal Year 1995, payors than it does for CHAMPUS, Fiscal Year 1997, but has not adopted HCFA’s average standardized amounts particularly if they have more cases in the arithmetic mean to calculate the per for hospitals located in ‘‘rural’’ areas the DRG categories where the diem payment. As a result, CHAMPUS were required to be equal to the average substitutions have occurred. Because of has been paying more than Medicare on standardized amount for hospitals these inconsistencies, we are proposing claims qualifying for long-stay day located in ‘‘other urban’’ areas. Based on that the Director, TSO, or designee, has outliers. Although we eliminated the this, separate national average the authority to consider alternative long stay outliers for all cases except standardized amounts for ‘‘other urban’’ methods for estimating CHAMPUS children’s hospitals and neonates for and ‘‘rural’’ areas no longer existed. As weights in these low-volume DGR Fiscal Year 1998, and are proposing to of Fiscal Year 1995, CHAMPUS no categories. eliminate the long stay outliers for them longer differentiated between ‘‘other K. Hospitals Within Hospitals in Fiscal Year 1999, we are still urban’’ and ‘‘rural’’ areas. The adjusted For Fiscal Year 1998, HCFA proposing to adopt the arithmetic mean standardized amounts for ‘‘other urban’’ established additional criteria for to calculate the per diem, in order to be and ‘‘rural’’ areas are now listed as excluding from the PPS, long-term care consistent with the Medicare PPS in ‘‘other’’ areas. calculating payments for transfer cases. hospitals that occupy space in the same H. Payment for Blood Clotting Factor building or on the same campus as E. Cost Outliers another hospital, sometimes called For Fiscal Year 1994, HCFA reinstated Beginning in Fiscal Year 1998, HCFA ‘‘hospitals within hospitals.’’ The payments for the cost of administering adopted a requirement that in additional criteria extends the hospital blood clotting factor to beneficiaries determining the additional payment for within hospital criteria to excluded who have hemophilia through IME (referred to as IDME under hospitals other than long-term care discharges occurring before October 1, CHAMPUS), the IME adjustment factor hospitals. CHAMPUS also adopted these 1994. CHAMPUS also reinstated will only be applied to the base DRG requirements beginning in Fiscal Year payments for the cost of administering payment. In addition, the fixed loss cost 1998. outlier threshold is based on the sum of blood clotting factor through discharges the DRG payment plus IME plus a fixed occurring before October 1, 1994. For II. Proposed Changes Regarding dollar amount. CHAMPUS adopted this Fiscal Year 1998, HCFA again reinstated Elimination of Physician Attestation requirement in Fiscal Year 1998 for all payments for the cost of administering Requirement cases except children’s hospitals and blood clotting factor. CHAMPUS also On September 1, 1995, Medicare neonates. We are proposing to adopt reinstated payments for discharges eliminated the requirement for the this same requirement for children’s occurring on or after October 1, 1997. physician attestation form that requires hospitals and neonates Fiscal Year in I. Effect of Change of Ownership on doctors to certify the accuracy of all 1999. Exclusion of Long-Term Care Hospitals diagnoses and procedures before submitting claims for payment. In F. Payment for Transfer Cases Beginning in Fiscal Year 1996, HCFA addition, instead of requiring a Beginning in Fiscal Year 1996, HCFA adopted new requirements for certain physician to sign an acknowledgment adopted a graduated per diem payment long-term care hospitals excluded from statement every year, Medicare changed methodology for transfer cases. As of the PPS. The requirements specify that its regulations to require a physician October 1, 1996, CHAMPUS adopted if a hospital undergoes a change of need only sign the acknowledgment this payment methodology; however, we ownership at the start of a cost reporting statement upon receiving admitting elected not to offset these additional period or at any time within the privileges at a hospital. CHAMPUS payments with reductions in outlier preceding 6 months, the hospital may be adopted these requirements effective the payments. Using this payment excluded from the prospective payment same date. methodology, CHAMPUS will pay system as a long-term care hospital for transferring hospitals twice the per diem a cost reporting period if, for the 6 III. Proposed Changes Regarding amount for the first day of any transfer months immediately preceding the start Clarification of Payment Reduction for stay plus the per diem amount for each of the period (including time before the Noncompliance with Required of the remaining days before transfer, up change of ownership), the hospital has Utilization Review Procedures to the full DRG amount. For neonatal the required average length of stay, To cover those situations where cases, other than normal newborns, the continuously operated as a hospital, and network providers have agreements transferring hospital will be paid twice continuously participated as a hospital with the managed care contractors for the per diem amount for the first day of in Medicare. CHAMPUS also adopted denial of payments for the provider’s Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61061 failure to obtain the required ‘‘other area’’ ASA because it is higher these rates as indicators of payment preauthorization, we are proposing to and will not economically disadvantage levels associated with adequate access. add the words ‘‘at least’’ before the any provider, and we expect that most In addition, under the applicable words ‘‘ten percent’’. By adding the ambulatory surgery centers are located Appropriations Act general provision, words ‘‘at least’’, the managed care in large urban areas. DoD may increase CMAC rates that are support contractor is authorized to lower than Medicare rates by reference VI. Proposed Changes Regarding apply reductions in payments in to appropriate economic index data Balance Billing accordance with the network provider’s similar to that used by Medicare. We contract. Section 731 of the National Defense have heretofore utilized only the Authorization Act for Fiscal Year 1996, Medicare Economic Index in this IV. Clarification Regarding List of revised 10 U.S.C. 1079(h) which connection, but we propose to adopt an Ambulatory Surgery Procedures provides the statutory basis for limits on additional Medicare indicator of On October 1, 1993, we published a balance billing of CHAMPUS economic factors, namely the data used final rule (58 FR 51227) which included beneficiaries established in section for the Medicare fees determination, to prospective payment procedures for 199.14(h)(1)(i)(D). Section 731 extends adjust the rates in these special cases. ambulatory surgery. These procedures the balance billing limit authority to This is set forth in the proposed new were modeled on the Medicare non-institutional, non-professional section 199.14(h)(1)(iii)(D). methodology. In that rule, we stated that providers, such as clinical laboratories ‘‘A list of ambulatory surgery and ambulance companies. VIII. Proposed Changes Regarding procedures will appear as Attachment 2 This paragraph explains that non- Government-Wide Effect Of Exclusion (to be published later) to this preamble.’’ institutional, non-professional providers Or Suspension From Champus We subsequently published the list of will be limited in the amount they may Section 2455 of the Federal procedures on October 15, 1993, (58 FR bill a TRICARE/CHAMPUS-eligible Acquisition Streamlining Act of 1994, 53411). beneficiary an actual charge in excess of Pub. L. 103–355, October 13, 1994, and The list of procedures published on the allowable amount. This provides Executive Order 12549, ‘‘Debarment and October 15, 1993, was not made part of financial protection for our beneficiaries Suspension from Federal Financial and the Code of Federal Regulations (CFR) at by preventing excessively high billing Nonfinancial Assistance Programs,’’ that time, and it was not, and continues by providers by establishing the balance February 18, 1986, require that any not to be, our intention that it be part billing limit to these new categories of entity debarred, suspended, or of the CFR. However, the final rule did providers as the same percentage as that otherwise excluded under any program not make this clear. The list of used for TRICARE/CHAMPUS or activity involving Federal financial procedures to be ‘‘published professional providers: 115 percent of assistance shall also be debarred, periodically by the Director, the allowable charge. In order to provide suspended, or otherwise excluded from OCHAMPUS,’’ as cited in section 199.14 flexibility to continue CHAMPUS all other programs and activities paragraph (d)(1), is contained in the benefits in special circumstances in involving Federal financial assistance. TRICARE/CHAMPUS Policy Manual. which a beneficiary may feel strongly We are restating this requirement in the about using a particular provider, V. Proposed Changes Regarding Limits context specific to CHAMPUS through a notwithstanding high fees, the proposed On Ambulatory Surgery Group proposed addition to section 199.9. The rule states that the limitation may be Payment Rates proposed addition provides that any waived on a case-by-case basis. health care provider excluded or Effective November 1, 1994, suspended from CHAMPUS shall, as a VII. Proposed Changes Regarding CHAMPUS identified a number of general rule, also be debarred, CMAC Rates procedures which can be performed suspended, or otherwise excluded from safely and effectively as ambulatory CHAMPUS policy, based on all other programs and activities surgery and established prospective Congressional enactment, is to set involving the Federal financial payment procedures for reimbursing CHAMPUS Maximum Allowable Charge assistance. Among these other such these services. Ambulatory surgery often (CMAC) rates comparable to Medicare programs are Medicare and Medicaid. is less disruptive to the patient’s life rates. For almost all procedure codes, Other regulations related to this than an inpatient stay. It also provides the CMAC rate has been reduced to authority are 32 CFR Part 25 (DoD rules) a less expensive alternative to an equal the Medicare rate or is in the and 45 CFR Part 76 (HHS rules). inpatient stay, since the patient does not process of being phased down to that In conjunction with implementation require a hospital room and all the costs level. For a very small number of of this government-wide debarment associated with it. As a result, TSO procedures, for unusual reasons or rule, we are strengthening the linkage wants to encourage the use of idiosyncrasies of the data used for between CHAMPUS and these other ambulatory surgery whenever it is calculations, however, the CMAC rate is programs on the important issues of reasonable, but we do not believe it ever less than the Medicare rate. We propose submittal of claims and balance billing should be more expensive than an to establish a special rule for these cases by providers. Current regulations inpatient stay. Therefore, we are adding to permit an increase in the CMAC up generally require providers to file claims a provision that gives discretion to the to the Medicare rate. This is based on on behalf of beneficiaries and to limit Director, TSO, to limit the ambulatory the authority of 10 U.S.C. 1079(h)(4), balance billing to 15% greater than the surgery group payment rate to the which allows for exceptions to the CHAMPUS Maximum Allowable Charge amount that would be allowed if the normal statutory payment limitation if (CMAC). These regulations also provide services were provided on an inpatient DoD determines it necessary to assure that violations are grounds for exclusion basis. To calculate the allowable that beneficiaries have adequate access or suspension from CHAMPUS. We are inpatient amount we will multiply the to health care services. Because the proposing to reinforce these compliance applicable DRG relative weight times Medicare rates are products of a system provisions by adding violations of these the national large urban adjusted that reflects careful governmental requirements to the list of provider standardized amount (ASA). We will judgments of factors suggesting fair actions that are considered abuse of the use the large urban ASA rather than the payment rates, we propose to adopt program for purposes of termination, 61062 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules suspension and other administrative Payment System (PPS) and was PART 199Ð[AMENDED] remedies. implemented on October 1, 1987. A principal effect of these proposed 1. The authority citation for Part 199 Affected Public: Individuals; Business continues to read as follows: revisions is that any provider who fails or Other For Profit. to file CHAMPUS claims or exceeds the Annual Burden Hours: 5,532. Authority: 5 U.S.C. 301; 10 U.S.C. chapter balance billing limits risks not only 55. Number of Respondents: 5,400. exclusion or suspension from 2. Section 199.9 is proposed to be CHAMPUS, but also exclusion or Responses Per Respondent: 1. amended by adding new paragraph (m) suspension from Medicare, Medicaid, Average Burden Per Response: 5 to read as follows: and other Federal programs. minutes for physicians, 1 hour for institutions. § 199.9 Administrative remedies for fraud, IX. Regulatory Procedures abuse, and conflict of interest. Frequency: On occasion. Executive Order 12866 requires * * * * * Respondents are institutional certain regulatory assessments for any (m) Government-wide effect of ‘‘significant regulatory action,’’ defined providers and admitting physicians. exclusion or suspension from as one which would result in an annual Institutional providers are requesting CHAMPUS. As provided by section effect on the economy of $100 million reimbursement for allowed capital and 2455 of the Federal Acquisition or more, or have other substantial direct medical education costs from the Streamlining Act of 1994, Pub. L. 103– impacts. TRICARE/CHAMPUS contractor. The 355, October 13, 1994, and Executive The Regulatory Flexibility Act (RFA) information can be submitted in any Order 12549, ‘‘Debarment and requires that each Federal agency form, most likely in the form of a letter. Suspension from Federal Financial and prepare, and make available for public The contractor will calculate the Nonfinancial Assistance Programs,’’ comment, a regulatory flexibility TRICARE/CHAMPUS share of capital February 18, 1986, any health care analysis when the agency issues a and direct medical education costs and provider excluded or suspended from regulation which would have a make a lump-sum payment to the CHAMPUS under this section shall, as significant impact on a substantial hospital. a general rule, also be debarred, number of small entities. Physicians sign a physician suspended, or otherwise excluded from This is not a significant regulatory acknowledgement, maintained by the all other programs and activities action under the provisions of Executive institution, at the time the physician is involving Federal financial assistance. Order 12866, and it would not have a granted admitting privileges. This Among the other programs for which significant impact on a substantial acknowledgement indicates the this debarment, suspension, or number of small entities. physician understands the importance exclusion shall operate are the Medicare Pursuant to the Paperwork Reduction of a correct medical record, and and Medicaid programs. This Act of 1995, the reporting provisions of misrepresentation may be subject to debarment, suspension, or termination this proposed rule have been submitted penalties. requirement is subject to limited to OMB for review under 3507(d) of the Comments on these requirements exceptions in the regulations governing Act. should be submitted to the Office of the respective Federal programs In compliance with Section Information and Regulatory Affairs, affected. 3506(c)(2)(A) of the Paperwork OMB, 725 17th Street, N.W., Note: Other regulations related to this Reduction Act of 1995, the Office of the Washington, DC 20503, marked government-wide exclusion or suspension Assistant Secretary of Defense (Health ‘‘Attention Desk Officer for Department authority are 32 CFR part 25 and 45 CFR part Affairs) announces the proposed public of Defense, Health Affairs.’’ Copies 76. information collection and seeks public should be sent to the Office of the 3. Section 199.14 is proposed to be comment on the provisions thereof. Assistant Secretary of Defense (Health amended by revising the first sentence Comments are invited on: (1) whether Affairs), 1200 Pentagon, Washington, of (a)(1) introductory text, and the proposed collection of information DC 20301–1200, Attention: Kathleen paragraphs (a)(1)(i)(C)(6)(iv), (a)(1)(ii)(C) is necessary for the proper performance Larkin. When the Department of (2), (3), (4) and (10) first sentence, of the functions of the agency, including Defense promulgates the Final Rule, the (a)(1)(ii)(D)(4), redesignating paragraphs whether the information shall have any Department will respond to comments (a)(1)(ii)(D)(5) through (a)(1)(ii)(D)(8) as practical utility; (2) the accuracy of the by OMB or the public regarding the (a)(1)(ii)(D)(6) through (a)(1)(ii)(D)(9), agency’s estimated burden of the information collection provisions of the revising (a)(1)(iii)(a)(3), (a)(1)(iii)(B), proposed information collection; (3) rule. (a)(1)(iii)(D) (1), (2) and (5), ways to enhance the quality, utility, and The is a proposed rule. Public (a)(1)(iii)(E)(1)(i) (A) and (B), clarity of the information to be comments are invited. All comments (a)(1)(iii)(E)(1)(ii) (A) and (B), collected; and (4) ways to minimize the will be considered. A discussion of the (a)(1)(iii)(G)(3) introductory text, burden of the information collection on major issues raised by public comments (d)(3)(iv), and (h) introductory text, and respondents, including through the use will be included with issuance of the by adding new paragraphs of automated collection techniques or final rule, anticipated approximately 60 (a)(1)(ii)(D)(5), (a)(1)(iii)(E)(3) (i), (ii), other forms of information technology. days after the end of the comment (iii), (iv), and (v), and (h)(1)(iii)(D), to The collection of information allows period. read as follows: TRICARE to collect the information necessary to properly reimburse List of Subjects in 32 CFR Part 199 § 199.14 Provider reimbursement institutional providers based on methods. Administrative practice and diagnosis-related groups (DRGs) for procedure, Claims, Fraud, Health care, * * * * * their share of these costs. The collection (a) * * * Health insurance, individuals with of this information is authorized by 32 (1) CHAMPUS Diagnosis Related disabilities, Military personnel. CFR 199.14(a)(1)(G)(1) and (2). The Group (DRG)-based payment system. CHAMPUS DRG-based payment system Accordingly, 32 CFR Part 199 is Under the CHAMPUS DRG-based is modeled on the Medicare Prospective proposed to be amended as follows: payment system, payment for the Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61063 operating costs of inpatient hospital (5) Hospitals within hospitals. A (A) Short-stay outliers. Any discharge service furnished by hospitals subject to hospital within a hospital which is with a length-of-stay (LOS) less than the system is made on the basis of exempt from the Medicare prospective 1.94 standard deviations from the DRG’s prospectively-determined rates and payment system is also exempt from the arithmetic LOS shall be classified as a applies on a per discharge basis using CHAMPUS DRG-based payment system. short-stay outlier. Short-stay outliers DRGs. * * * In order for a hospital within a hospital shall be reimbursed at 200 percent of (i) * * * which does not participate in Medicare the per diem rate for the DRG for each (C) * * * to be exempt from the CHAMPUS DRG- covered day of the hospital stay, not to (6) * * * based payment system, it must meet the exceed the DRG amount. The per diem (iv) Payment to a hospital transferring same criteria (as determined by the rate shall equal the DRG amount an inpatient to another hospital. If a Director, TSO, or a designee) as required divided by the arithmetic mean length- hospital subject to the CHAMPUS DRG- for exemption from the Medicare of stay for the DRG. based payment system transfers an Prospective Payment System as (B) Long-stay outliers. Any discharge inpatient to another such hospital, the contained in § 412.22 and the criteria for (except for neonatal services and transferring hospital shall be paid a per one or more of the excluded hospital services in children’s hospitals) which diem rate (except that in neonatal cases, classifications described in § 412.23 of has a length-of-stay (LOS) exceeding a other than normal newborns, the Title 42 CFR. threshold established in accordance hospital will be paid at 125 percent of * * * * * with the criteria used for the Medicare that per diem rate), as determined under (iii) * * * Prospective Payment System as instructions issued by TSO, for each day (A) * * * contained in 42 CFR 412.82 shall be of the patient’s stay in that hospital, not (3) Indirect medical education classified as a long-stay outlier. Any to exceed the DRG-based payment that standardization. The charges shall be discharge for neonatal services or for would have been paid if the patient had standardized for the cost effects of services in a children’s hospital which been discharged to another setting. For indirect medical educational factors. If has a LOS exceeding the lesser of 1.94 admissions occurring on or after the Medicare adjustment factor was standard deviations or 17 days from the October 1, 1995, the transferring used in calculating a teaching hospital’s DRG’s arithmetic mean LOS also shall hospital shall be paid twice the per indirect medical education adjustment be classified as a long-stay outlier. Long- diem rate for the first day of any transfer factor, the Medicare factor shall be used stay outliers shall be reimbursed the stay, and the per diem amount for each when standardizing the charges. DRG-based amount plus a percentage (as subsequent day up to the limit * * * * * established for the Medicare Prospective described in this paragraph. (B) Empty and low-volume DRGs. For Payment System) of the per diem rate * * * * * any DRG with less than ten (10) for the DRG for each covered day of care (ii) * * * occurrences in the CHAMPUS database, beyond the long-stay outlier threshold. (C) * * * the Director, TSO, or designee, has the The per diem rate shall equal the DRG (2) All services related to solid organ authority to consider alternative amount divided by the arithmetic mean acquisition for CHAMPUS covered methods for estimating CHAMPUS LOS for the DRG. For admissions on or transplants by CHAMPUS-authorized weights in these low-volume DRG after October 1, 1997, the long stay transplantation centers. categories. outlier has been eliminated for all cases (3) All services related to heart and * * * * * except children’s hospitals and liver transplantation for admissions (D) * * * neonates. For admissions on or after prior to October 1, 1998, which would (1) Differentiate large urban and other October 1, 1998, the long stay outlier otherwise be paid under DRG 103 and area charges. All charges in the database has been eliminated for children’s 480, respectively. shall be sorted into large urban and hospitals and neonates. (4) All services related to CHAMPUS other area groups (using the same (ii) * * * covered solid organ transplantations for definitions for these categories used in (A) Cost outliers except those in which there is no DRG assignment. the Medicare program). children’s hospitals or for neonatal * * * * * (2) Indirect medical education services. Any discharge which has (10) For admissions occurring on or standardization. The charges shall be standardized costs that exceed a after October 1, 1990, and before standardized for the cost effects of threshold established in accordance October 1, 1994, and for discharges indirect medical education factors. If the with the criteria used for the Medicare occurring on or after October 1, 1997, Medicare adjustment factor was used in Prospective Payment System as the costs of blood clotting factor for calculating a teaching hospital’s indirect contained in 42 CFR 412.84 shall hemophilia patients. * ** medical education adjustment factor, qualify as a cost outlier. The (D) * * * the Medicare factor shall be used when standardized costs shall be calculated (4) Long-term hospitals. A long-term standardizing the charges. by multiplying the total charges by the hospital which is exempt from the * * * * * factor described in Medicare prospective payment system is (5) Preliminary base year § 199.14(a)(1)(iii)(D)(4) and adjusting also exempt from the CHAMPUS DRG- standardized amount. A preliminary this amount for indirect medical based payment system. In order for a base year standardized amount shall be education costs. Cost outliers shall be long-term hospital which does not calculated by summing all costs in the reimbursed the DRG-based amount plus participate in Medicare to be exempt database applicable to the large urban or a percentage (as established for the from the CHAMPUS DRG-based other area group and dividing by the Medicare Prospective Payment System) payment system, it must meet the same total number of discharges in the of all costs exceeding the threshold. criteria (as determined by the Director, respective group. Effective with admissions occurring on TSO, or a designee) as required for * * * * * or after October 1, 1997, the exemption from the Medicare (E) * * * standardized costs are no longer Prospective Payment System as (1) * * * adjusted for indirect medical education contained in § 412.23 of title 42 CFR. (i) * * * costs. 61064 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

(B) Cost outliers in children’s calculated based on a current request as flood or fire. (If these costs change as hospitals and for neonatal services. Any from the hospital for payment of capital a result of a subsequent audit by discharge for services in a children’s and direct medical education costs. The Medicare, the revised costs are to be hospital or for neonatal services which factor will be eliminated as of October reported to the hospital’s CHAMPUS has standardized costs that exceed a 1 if no capital and direct medical contractor within 30 days of the date the threshold of the greater of two times the education payment request has been hospital is notified of the change.) The DRG-based amount or $13,800 shall received since the previous October 1. request must be signed by the hospital qualify as a cost outlier. The (iv) For children’s hospitals which official responsible for verifying the standardized costs shall be calculated have indirect medical education factors amounts and shall contain the following by multiplying the total charges by the for CHAMPUS, the factor will be information. factor described in eliminated as of October 1 of each year * * * * * § 199.14(a)(1)(iii)(D)(4) (adjusted to if during the past year, the hospital did (d) * * * include average capital and direct not provide the contractor with updated (3) * * * medical education costs) and adjusting information on the number of interns, (iv) Step 4: standard payment amount this amount for indirect medical residents and beds. Since amounts for per group. The standard payment education costs. Cost outliers for capital and direct medical education are amount per group will be the volume services in children’s hospitals and for included in the national children’s weighted median per procedure cost for neonatal services shall be reimbursed hospital differential, children’s the procedures in that group. For cases the DRG-based amount plus a hospitals are not required to submit in which the standard payment amount percentage (as established for the capital and direct medical education per group exceeds the CHAMPUS- Medicare Prospective Payment System) payment requests. Because of this, the determined inpatient allowable amount, of all costs exceeding the threshold. contractor is not able to update the the Director, TSO, or his designee, may Effective with admissions occurring on CHAMPUS-specific factor unless make adjustments. or after October 1, 1998, the cost outlier requested by the children’s hospital. * * * * * thresholds for children’s hospitals and (v) In any case where a hospital (h) Reimbursement of individual neonatal services are the same as other submits a capital and direct medical health care professionals and other non- hospitals and the standardized costs are education payment request after the institutional, non-professional no longer adjusted for indirect medical Medicare factor has been implemented providers. The CHAMPUS-determined education costs. (or the factor has been eliminated for reasonable charge (the amount allowed * * * * * hospitals not subject to the Medicare by CHAMPUS) for the service of an (3) * * * prospective payment system, including individual health care professional or (i) The indirect medical education children’s hospitals), the CHAMPUS other non-institutional, non- adjustment factor is calculated for all specific factor will become effective in professional provider (even if employed hospitals which have teaching programs accordance with existing requirements. by or under contract to an institutional approved under the Medicare In no case will the CHMPUS-specific provider) shall be determined by one of regulation. The factor is based on the factor be effective retroactively. the following methodologies, that is, number of interns, residents and beds in * * * * * whichever is in effect in the specific the hospital. Each DRG-based payment (G) * * * geographic location at the time covered is increased by this factor for that (3) Information necessary for payment services and supplies are provided to a hospital. The factors are updated yearly of capital and direct medical education CHAMPUS beneficiary. based on data submitted by hospitals on costs. All hospitals subject to the (1) * * * the annual request for payment of CHAMPUS DRG-based payment system, (iii) * * * capital and direct medical education except for children’s hospitals, may be (D) Special rule for cases in which the costs. reimbursed for allowed capital and national CMAC is less than the (ii) To ensure the indirect medical direct medical education costs by Medicare rate. In any case in which the education factors are as current as submitting a request to the CHAMPUS national CMAC calculated in possible, the Medicare adjustment factor contractor. Such request shall be filed accordance with paragraphs (h)(1) (i) will be used for any hospital for which with CHAMPUS on or before the last through (iii) of this section is less than a CHAMPUS-specific factor has not day of the fifth month following the the Medicare rate, the Director, TSO, been calculated based on the hospital’s close of the hospitals’ cost reporting may determine that the use of the request for payment of capital and direct period, and shall cover the one-year Medicare Economic Index under medical education costs. The factors period corresponding to the hospital’s paragraph (h)(1)(iii)(B) of this section will be updated using the Medicare Medicare cost-reporting period. The first will result in a CMAC rate below the amounts as of October 1 of each year; such request may cover a period of less level necessary to assure that the same time the DRG rates and than a full year—from the effective date beneficiaries will retain adequate access weights are updated. Any hospital of the CHAMPUS DRG-based payment to health care services. Upon making which has not submitted a capital and system to the end of the hospital’s such a determination, the Director, TSO, direct medical education payment Medicare cost-reporting period. All may increase the national CMAC to a request to CHAMPUS since the previous costs reported to the CHAMPUS level not greater than the Medicare rate. October 1, will be assigned the most contractor must correspond to the costs * * * * * recent Medicare adjustment factor. reported on the hospital’s Medicare cost 4. Section 199.15 is proposed to be (iii) For hospitals which have indirect report. An extension of the due date for amended by revising paragraphs medical education factors for filing the request may only be granted (b)(4)(iii)(B), (c)(2), (d)(2)(iii) and (e)(3) CHAMPUS but are not subject to the if an extension has been granted by (i) and (ii), to read as follows: Medicare prospective payment system, HCFA due to a provider’s operations the indirect medical education being significantly adversely affected § 199.15 Quality and utilization review peer adjustment factor will be eliminated if due to extraordinary circumstances over review organization program. a CHAMPUS-specific factor cannot be which the provider has no control, such * * * * * Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61065

(b) * * * ENVIRONMENTAL PROTECTION additional NODA on May 2, 1997, to (4) * * * AGENCY inform the public of: (1) Significant changes the Agency is considering on (iii) * * * 40 CFR Parts 60 and 63 aspects of the proposal based on public (B) In a case described in paragraph comments and new information; and (2) [FRL±5921±1] (b)(4)(iii)(A) of this section, the Agency’s own re-evaluation of reimbursement will be reduced, unless Hazardous Waste Combustors; MACT standard-setting approaches such reduction is waived based on Continuous Emissions Monitoring based on new data and public special circumstances. The amount of Systems; Proposed RuleÐNotice of comments. this reduction shall be at least ten Data Availability The proposed rule would require that percent of the amount otherwise PM CEMS be used to document allowable for services for which AGENCY: Environmental Protection compliance with the proposed PM preauthorization (including Agency (EPA). standards. To be effective for preauthorization for continued stays in ACTION: Notice of data availability. compliance monitoring, the Agency connection with concurrent review determined that commercially available SUMMARY: This announcement is a requirements) approval should have PM CEMS must meet certain notice of advanced availability of a test performance specifications. The results been obtained, but was not obtained. report pertaining to the proposed of the demonstration tests assist in the * * * * * requirement for Particulate Matter (PM) development of these PM CEMS (c) * * * Continuous Emissions Monitoring performance specifications. Systems (CEMS) for hazardous waste EPA plans to follow today’s NODA (2) The physician acknowledgment combustors: ‘‘Draft Particulate Matter required for Medicare under 42 CFR with a second NODA which will discuss Continuous Emissions Monitoring issues pertaining to the demonstration 412.46 is also required for CHAMPUS as Systems Demonstration’’, dated October test report and PM CEMS a condition for payment and may be 1997. The report documents PM CEMS implementation considerations. The satisfied by the same statement as demonstration tests conducted between second NODA will provide the required for Medicare, with substitution September 1996 and May 1997 at the opportunity to comment on the report or addition of ‘‘CHAMPUS’’ when the DuPont, Inc. Experimental Station On- and the issues. word ‘‘Medicare’’ is used. Site Incinerator, in Wilmington, Dated: November 5, 1997. * * * * * Delaware. Included in the report are the David Bussard, (d) * * * testing scheme, raw data, and discussion of results. Appendices to the Acting Director, Office of Solid Waste. (2) * * * report include: Method 5I— [FR Doc. 97–30019 Filed 11–13–97; 8:45 am] (iii) Review for physician’s Determination of Low Level Particulate BILLING CODE 6560±50±P acknowledgment of annual receipt of Matter Emissions from Stationary the penalty statement as contained in Sources; Revised Draft Performance the Medicare regulation at 42 CFR Specification 11—Specifications and FEDERAL COMMUNICATIONS 412.46. Test Procedures for PM CEMS in COMMISSION Stationary Sources; and Appendix F to * * * * * 40 CFR Part 60, Quality Assurance 47 CFR Part 76 (e) * * * Requirements for PM CEMS used for [CS Docket No. 95±184; MM Docket No. 92± (3) * * * Compliance Determination. 260; FCC 97±376] FOR FURTHER INFORMATION CONTACT: To (i) If the diagnostic and procedural Inside Wiring information in the patient’s medical obtain the October 1997, Draft PM record is found to be inconsistent with CEMS Demonstration test report, call AGENCY: Federal Communications the hospital’s coding or DRG the RCRA Hotline at 1–800–424–9346 or Commission. TDD 1–800–553–7672 (hearing assignment, the hospital’s coding on the ACTION: Proposed rule. impaired). Callers within the CHAMPUS claim will be appropriately Washington Metropolitan Area must changed and payments recalculated on SUMMARY: The Commission has adopted dial 703–412–9810 or TDD 703–412– a Report and Order and Second Further the basis of the appropriate DRG 3323 (hearing impaired). The RCRA assignment. Notice of Proposed Rulemaking which Hotline is open Monday–Friday, 9:00 addresses rules and policies concerning (ii) If the information stipulated under a.m. to 6:00 p.m., Eastern Time. cable inside wiring. The Report and paragraph (d)(2) of this section is found SUPPLEMENTARY INFORMATION: On April Order segment of this decision may be not to be correct, the PRO will change 19, 1996, EPA proposed the Revised found elsewhere in this issue of the the coding and assign the appropriate Standards for Hazardous Waste Federal Register. The Second Further DRG on the basis of the changed coding. Combustors (i.e., incinerators, cement Notice of Proposed Rulemaking * * * * * and lightweight aggregate kilns that (‘‘Second Further Notice’’) segment Dated: November 7, 1997. burn hazardous waste). The revised seeks comment on proposed L.M. Bynum, standards would limit emissions of PM amendments to the Commission’s at these facilities and address the regulations relating to exclusive service Alternate OSD Federal Register Liaison application of PM CEMS for compliance contracts, application of cable inside Officer, Department of Defense. monitoring. See 61 FR 17358. On March wiring rules to all multichannel video [FR Doc. 97–29975 Filed 11–13–97; 8:45 am] 21, 1997, EPA published a Notice of programming distributors (‘‘MVPDs’’), BILLING CODE 5000±04±M Data Availability (NODA) that further signal leakage reporting requirements, examined the issues concerning PM and simultaneous use of home run CEMS as compliance instruments. See wiring. This action was necessary 62 FR 13776. EPA published an because exclusive service contracts and 61066 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules access to home run wiring are cable inside wiring rules in light of the an exclusive contract with the significant competitive issues in evolving telecommunications expectation of making its returns in later multiple dwelling unit buildings marketplace. years. We inquire whether there should (‘‘MDUs’’). In addition, this action was be different treatment accorded existing II. Second Further Notice of Proposed necessary in order to ensure that all contracts and future contracts. We also Rulemaking MVPDs are treated equitably under our seek comment on the appropriate forum inside wiring rules. The intended effect A. Exclusive Service Contracts for such a showing and whether the of this action is to expand opportunities 2. We believe that exclusive service enforceability of an exclusivity for new entrants seeking to compete in contracts between MDU owners and provision should be extended only for distributing video programming and to MVPDs can be pro-competitive or anti- the time period reasonably necessary for ensure that the Commission’s inside competitive, depending upon the the provider to recover its costs. 4. If a ‘‘cap’’ is adopted, we seek wiring rules remain pro-competitive. circumstances involved. The term comment on whether service providers DATES: Comments must be submitted on ‘‘MDU owner’’ (sometime referred to as would generally be able to structure or before December 23, 1997 and reply the ‘‘premises owner’’) as used herein their business arrangements so as to comments must be submitted on or includes whatever entity owns or recover their capital costs within that before January 22, 1998. controls the common areas of an time limit. After a video service ADDRESSES: Comments and reply apartment building, condominium or provider has had an opportunity to comments should be sent to Office of cooperative. Some alternative providers recover its costs under an exclusive the Secretary, Federal Communications have commented that in order to initiate contract on a particular property, we Commission, 1919 M Street, NW, service in an MDU, they must be able to Washington, DC 20554. Comments and seek comment on whether we should use exclusive contracts to ensure their prohibit future exclusive contracts reply comments will be available for ability to recover investment costs. public inspection during regular between the video service provider and Other alternative providers have argued the property owner, unless the service business hours in the FCC Reference that the Commission should limit the Center, Room 239, Federal provider can demonstrate that the ability of incumbent cable operators to exclusive contract is necessary to Communications Commission, 1919 M enter into exclusive contracts with MDU Street NW, Washington, DC 20554. recoup a substantial new investment in owners. the property. We also inquire whether FOR FURTHER INFORMATION CONTACT: Rick 3. We seek comment on whether the MDU owners should be afforded an Chessen, Cable Services Bureau, (202) Commission should adopt a ‘‘cap’’ on opportunity to terminate the exclusive 418–7200. the length of exclusive contracts for all contract and retain the inside wiring, in SUPPLEMENTARY INFORMATION: The MVPDs that would limit the exchange for a payment to the provider following is a synopsis of the Second enforceability of exclusive contracts to compensating it for unrecovered Further Notice segment of the the amount of time reasonably necessary investment costs. We seek to determine Commission’s Report and Order and for an MVPD to recover its specific what circumstances allow MDU owners Second Further Notice of Proposed capital costs of providing service to that and tenants to receive the benefits of Rulemaking in CS Docket No. 95–184 MDU, including, but not limited to, the technological improvements most and MM Docket No. 92–260, FCC No. installation of inside wiring, headend expeditiously, while at the same time 97–376, adopted October 9, 1997 and equipment and other start-up costs. enhancing competition among MVPDs. released October 17, 1997. The full text Commenters have suggested exclusivity 5. In the alternative, we seek comment of this decision is available for periods such as five to six years, seven on whether the Commission should inspection and copying during normal years and seven to ten years as only limit exclusive contracts where the business hours in the FCC Reference reasonable. We seek comment on what MVPD involved possesses market Center (Room 239), 1919 M Street, NW, would be a reasonable period of time for power. The Supreme Court has noted: Washington, DC 20554, and may be a provider to recoup its specific ‘‘Exclusive dealing is an unreasonable purchased from the Commission’s copy investment costs in an MDU. We seek restraint on trade only when a contractor, International Transcription comment on an approach under which significant fraction of buyers or sellers Services, Inc. (202) 857–3800 (phone), a presumption that all existing and are frozen out of a market by the (202) 857–3805 (fax), 1231 20th Street, future exclusivity provisions would be exclusive deal.’’ Jefferson Parish Hosp. NW, Washington, DC 20036. enforceable for a maximum term of Dist. No. 2 v. Hyde, 466 U.S. 2, 45 Synopsis seven years, except for exceptional cases (1984), citing Standard Oil v. United in which the MVPD could demonstrate States, 337 U.S. 293 (1949). We seek I. Introduction that it has not had a reasonable comment on circumstances 1. The Second Further Notice opportunity to recover its specific encompassing the video distribution addresses issues raised in the Notice of investment costs. For instance, the market and whether the Commission Proposed Rulemaking in CS Docket No. exclusivity of a ‘‘perpetual’’ exclusive can and should restrict or prohibit 95–184, 61 FR 3657 (February 1, 1996) contract entered into in 1983 would no MVPDs with market power from (‘‘Inside Wiring Notice’’), the Order On longer be enforceable; however, if the entering into or enforcing exclusive Reconsideration and Further Notice of service provider completed a substantial service contracts. In particular, we seek Proposed Rulemaking in MM Docket rebuild of its plant in 1996, the provider comment on how to define ‘‘market No. 92–260, 61 FR 6131 (February 16, may be able to show that it has not had power’’ for these purposes, as well as 1996) and 61 FR 6210 (February 16, a reasonable opportunity to recover its how to define the relevant geographic 1996) (‘‘Cable Home Wiring Further investment costs notwithstanding the market. Notice’’), and the Further Notice of fact that the exclusive contract was 6. We are concerned about the Proposed Rulemaking in CS Docket No. entered into more than seven years ago. administrative practicability of making 95–184 and MM Docket No. 92–260, 62 Similarly, a provider may be able to market power determinations on a FR 46453 (September 3, 1997) (‘‘Inside show that it has not had an opportunity widespread, case-by-case basis and seek Wiring Further Notice’’) regarding to recover its costs where it provided comment on whether we should potential changes in our telephone and discounted service in the early years of establish any presumptions in this Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61067 regard. We seek comment on whether open a 180-day ‘‘fresh look’’ window for C. Signal Leakage Reporting our decision not to preempt state MDU owners upon the effective date of Requirements mandatory access statutes effectively our rules, unless the ‘‘perpetual’’ 13. Section 76.615 of the means that non-cable MVPDs cannot exclusive contract was entered into less Commission’s signal leakage rules enforce exclusive agreements in those than seven years earlier, in which case requires cable operators to file certain states, even where such agreements may the ‘‘fresh look’’ window would open information with the Commission when be pro-competitive. We also seek for that MDU at the end of the seven- operating in the aeronautical radio comment on any other issues relevant to year period. We also seek comment on frequency bands. 47 CFR 76.615. In the analysis of market power and whether the MVPD should be able to particular, § 76.615(b)(7) requires cable exclusive contracts in the context of this apply to the Commission for an operators to file annually with the proceeding. extension if the MVPD can demonstrate Commission the results of their signal 7. In addition, we seek comment on that it has not had a reasonable leakage tests conducted pursuant to whether the Commission can and opportunity to recover its specific § 76.611. 47 CFR 76.611 and should take any specific actions capital costs by the end of this seven- 76.615(b)(7). We are concerned that the regarding so-called ‘‘perpetual’’ year period. Further, we seek comment reporting requirements of § 76.615(b)(7) exclusive contracts (i.e., those running on whether, if an MDU owner does not may impose undue burdens on small for the term of a cable franchise and any enter into a new contract during its broadband service providers, including extensions thereof). For instance, under initial ‘‘fresh look’’ period, a new 180- small cable operators. We seek comment the market power approach, we seek day ‘‘fresh look’’ window should open on whether certain categories of comment on whether the Commission at the expiration of each subsequent broadband service providers should be should adopt a presumption that the franchise period until the MDU owner MVPDs involved possessed market opts out of its ‘‘perpetual’’ exclusive exempt from the filing requirements of power when such contracts were contract. We seek comment on whether § 76.615(b)(7) and, if so, what criteria executed. Under the seven-year ‘‘cap’’ this framework would protect MDU the Commission should use in defining approach, we seek comment on whether owners who do not have a competitive those providers. We would not propose ‘‘perpetual’’ exclusive contracts would alternative and therefore would be to exempt any broadband service simply fall within the general rule prejudiced by a one-time ‘‘fresh look’’ providers from the testing requirements limiting the enforceability of exclusive window, while ensuring that the of § 76.615(b)(7), but simply the contracts to seven years from execution MVPDs involved have a reasonable requirement to report the results of such unless the MVPD can demonstrate that opportunity to recover their costs. tests to the Commission. For instance, it has not had a reasonable opportunity 10. We also seek comment on our we seek comment on whether we to recover its specific capital costs. statutory authority to adopt the should exempt small broadband service 8. Under one proposal, property exclusive contracts proposals discussed providers from the filing requirements owners that have committed to long- above. We also seek comment on any of § 76.615(b)(7) based on an existing term perpetual exclusive contracts other constitutional, statutory or definition in the Commission’s rules, a would have a window of 180 days to common law implications that these particular number of subscribers served, take a ‘‘fresh look’’ at the marketplace to proposals raise. the length of the cable plant or some renegotiate or terminate those contracts other criteria. For example, we have without liability in order to avail B. Application of Cable Inside Wiring defined a small cable system as any themselves of a competitive alternative Rules to All MVPDs system that serves 15,000 or fewer service provider. We seek comment on 11. We propose to apply our cable subscribers and a small cable company whether we can and should adopt a home wiring rules for single-unit as one serving a total of 400,000 or ‘‘fresh look’’ for ‘‘perpetual’’ exclusive installations to all MVPDs in the same fewer subscribers over all of its systems. contracts. In addition, we seek comment manner that they apply to cable Sixth Report and Order and Eleventh on several implementation issues: (1) operators. We believe that applying Order on Reconsideration, MM Docket whether the ‘‘fresh look’’ would apply those rules to all MVPDs would promote Nos. 92–266 and 93–215 only to ‘‘perpetual’’ exclusive contracts competitive parity and facilitate the (Implementation of Sections of the and, if so, how such contracts ability of a subscriber whose premises Cable Television Consumer Protection reasonably can be distinguished from was initially wired by a non-cable and Competition Act of 1992: Rate other long-term exclusive contracts; (2) MVPD to change providers. We seek Regulation), 60 FR 35854 (July 12, the scope of the ‘‘fresh look’’ and how comment on this proposal and on our 1995). We seek comment on the risks to the ‘‘fresh look’’ period would be authority to adopt it. safety of life communications posed by triggered to ensure a viable choice exists 12. We also propose to expand to all such an exemption. We also seek (e.g., whether the ‘‘fresh look’’ be MVPDs the rule we are adopting herein comment on any other changes in this applied on an MDU-by-MDU basis upon regarding cable subscribers’ rights, prior area that would reduce burdens, yet the request of a private cable operator to termination of service, to provide and meet the goals of protecting against able to serve the MDU, or more install their own cable home wiring and signal leakage. generally on a franchise-by-franchise to connect additional home wiring to basis where competitive choices exist in the wiring installed and owned by the D. Simultaneous Use of Home Run the franchise area); and (3) whether the cable operator. We believe that applying Wiring ‘‘fresh look’’ would be a one-time this rule to all MVPDs will promote the 14. As stated above, DIRECTV opportunity or whether there could be same consumer benefits as in the cable suggests that the Commission should additional ‘‘fresh look’’ windows in context: increased competition and establish a ‘‘virtual’’ demarcation point light of the development of new consumer choice, lower prices and from which an alternative provider technology and the entry of new video greater technical innovation. We seek could share the wiring simultaneously service providers. comment on this proposal, and in with the cable operator. Other 9. If we were to adopt a ‘‘fresh look’’ particular on the Commission’s alternative providers endorse this view, for ‘‘perpetual’’ exclusive contracts, we authority for expanding this rule to all if it is technically possible, and CEMA seek comment on whether we should MVPDs. states that some of its members are 61068 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules currently developing equipment that service contracts between MDU owners Census, there were 1423 such cable and will allow multiple uses of a single and MVPDs, and whether we should: (1) other pay television services generating broadband wire. Cable operators limit exclusive contracts to a time less than $11 million in revenue that generally oppose DIRECTV’s suggestion certain; (2) adopt restrictions on the were in operation for at least one year that two video service providers may ability of MVPDs to enter into exclusive at the end of 1992. We will address each share a single wire, stating that the contracts; or (3) adopt a ‘‘fresh look’’ for service individually to provide a more alternative provider would have to use ‘‘perpetual’’ exclusive contracts. In succinct estimate of small entities. different frequency bands to avoid addition, we propose to expand to all 21. Cable Systems: The Commission interference, and, while theoretically MVPDs the rule regarding cable has developed its own definition of a possible, most systems do not have subscribers’ rights, prior to termination small cable company for the purposes of sufficient bandwidth capacity to carry of service, to provide and install their rate regulation. Under the Commission’s multiple MVPDs. DIRECTV own cable home wiring and to connect rules, a ‘‘small cable company,’’ is one acknowledges that only service additional home wiring to the wiring serving fewer than 400,000 subscribers providers that use different parts of the installed and owned by the MVPD. We nationwide. 47 CFR 76.901(e). Based on spectrum technically may be able to also ask whether certain categories of our most recent information, we share a single wire. broadband service providers (e.g., small estimate that there were 1439 cable 15. We believe that the sharing of a broadband service providers, including operators that qualified as small cable single wire by multiple service small cable operators) should be exempt companies at the end of 1995. Since providers deserves further exploration. from the signal leakage reporting then, some of those companies may We seek comment on DIRECTV’s requirements in § 76.615(b)(7). Finally, have grown to serve over 400,000 proposal that we require competing we seek comment on the current subscribers, and others may have been broadband service providers to share a technical, practical, economic, and legal involved in transactions that caused single home run wire in MDUs. In limitations of requiring competing them to be combined with other cable particular, we seek comment on the broadband service providers to share a operators. Consequently, we estimate current technical, practical and single home run wire in MDUs. that there are fewer than 1439 small economic feasibility and limitations of Legal Basis entity cable system operators that may sharing of home run wiring. We also be affected by the decisions and rules 18. This Second Further Notice is seek comment on our legal authority to proposed in this Second Further Notice. impose such a requirement and whether adopted pursuant to sections 1, 4, 224, 22. The Communications Act also such a requirement would constitute an 251, 303, 601, 623, 624, and 632 of the contains a definition of a small cable impermissible taking of private property Communications Act of 1934, as system operator, which is ‘‘a cable under the Fifth Amendment. amended, 47 U.S.C. §§ 151, 154, 224, 251, 303, 521, 543, 544, and 552. operator that, directly or through an III. Initial Regulatory Flexibility Act affiliate, serves in the aggregate fewer Analysis Description and Estimate of the Number than 1% of all subscribers in the United 16. As required by section 603 of the of Small Entities Impacted States and is not affiliated with any Regulatory Flexibility Act, 5 U.S.C. 603, 19. The RFA directs the Commission entity or entities whose gross annual (‘‘RFA’’), the Commission has prepared to provide a description of and, where revenues in the aggregate exceed an Initial Regulatory Flexibility feasible, an estimate of the number of $250,000,000.’’ The Commission has Analysis (‘‘IRFA’’) of the expected small entities that will be affected by the determined that there are 61,700,000 significant impact on small entities by proposed rules. The RFA defines the subscribers in the United States. the policies and rules proposed in this term ‘‘small entity’’ as having the same Therefore, we found that an operator Second Further Notice. Written public meaning as the terms ‘‘small business,’’ serving fewer than 617,000 subscribers comments are requested on the IRFA. ‘‘small organization,’’ and ‘‘small shall be deemed a small operator, if its These comments must be filed in governmental jurisdiction,’’ and the annual revenues, when combined with accordance with the same filing same meaning as the term ‘‘small the total annual revenues of all of its procedures as other comments in this business concern’’ under section 3 of affiliates, do not exceed $250 million in proceeding, but they must be have a the Small Business Act. Under the the aggregate. Based on available data, separate and distinct heading Small Business Act, a ‘‘small business we find that the number of cable designating them as responses to the concern’’ is one that: (1) is operators serving 617,000 subscribers or IRFA. The Secretary shall send a copy independently owned and operated; (2) less totals 1450. Although it seems of this Second Further Notice, including is not dominant in its field of operation; certain that some of these cable system the IRFA, to the Chief Counsel for and (3) satisfies any additional criteria operators are affiliated with entities Advocacy of the Small Business established by the Small Business whose gross annual revenues exceed Administration in accordance with Administration (‘‘SBA’’). The rules we $250,000,000, we are unable at this time section 603(a) of the RFA. In addition, propose in this Second Further Notice to estimate with greater precision the the Second Further Notice and IRFA (or will affect MVPDs and MDU owners. number of cable system operators that summaries thereof) will be published in 20. Small MVPDs: SBA has developed would qualify as small cable operators the Federal Register, pursuant to 5 a definition of a small entity for cable under the definition in the U.S.C. 603(a). and other pay television services, which Communications Act. includes all such companies generating 23. MMDS: The Commission refined Need for Action and Objectives of the $11 million or less in annual receipts. the definition of ‘‘small entity’’ for the Proposed Rules This definition includes cable system auction of MMDS as an entity that 17. The Commission issues this operators, closed circuit television together with its affiliates has average Second Further Notice to consider services, direct broadcast satellite gross annual revenues that are not more additional rules to promote competition services, multipoint distribution than $40 million for the preceding three and enhance consumer choice. In systems, satellite master antenna calendar years. This definition of a particular, we seek comment on the systems and subscription television small entity in the context of the competitive implications of exclusive services. According to the Bureau of the Commission’s Report and Order Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61069 concerning MMDS auctions has been which affords them access to most of the SMATV operators together pass 815,740 approved by the SBA. same programming provided to units. If we assume that these SMATV 24. The Commission completed its subscribers of other video service operators serve 50% of the units passed, MMDS auction in March 1996 for providers; (2) viewers who receive only the ten largest SMATV operators serve authorizations in 493 basic trading areas non-subscription programming; and (3) approximately 40% of the total number (‘‘BTAs’’). Of 67 winning bidders, 61 viewers who receive satellite of SMATV subscribers. Because these qualified as small entities. Five bidders programming services illegally without operators are not rate regulated, they are indicated that they were minority- subscribing. Because scrambled not required to file financial data with owned and four winners indicated that packages of programming are most the Commission. Furthermore, we are they were women-owned businesses. specifically intended for retail not aware of any privately published MMDS is an especially competitive consumers, these are the services most financial information regarding these service, with approximately 1573 relevant to this discussion. operators. Based on the estimated previously authorized and proposed 28. According to the most recently number of operators and the estimated MMDS facilities. Information available available information, there are number of units served by the largest to us indicates that no MMDS facility approximately 30 program packagers ten SMATVs, we believe that a generates revenue in excess of $11 nationwide offering packages of substantial number of SMATV operators million annually. We believe that there scrambled programming to retail qualify as small entities. are approximately 1634 small MMDS consumers. These program packagers 31. LMDS: Unlike the above pay providers as defined by the SBA and the provide subscriptions to approximately television services, LMDS technology Commission’s auction rules. 2,314,900 subscribers nationwide. This and spectrum allocation will allow 25. ITFS: There are presently 1,989 is an average of about 77,163 subscribers licensees to provide wireless telephony, licensed educational ITFS stations and per program packager. This is data, and/or video services. An LMDS 97 licensed commercial ITFS stations. substantially smaller than the 400,000 provider is not limited in the number of Educational institutions are included in subscribers used in the Commission’s potential applications that will be the definition of a small business. definition of a small MSO. Furthermore, available for this service. Therefore, the However, we do not collect annual because this an average, it is likely that definition of a small LMDS entity may revenue data for ITFS licensees and are some program packagers may be be applicable to both cable and other unable to ascertain how many of the 97 substantially smaller. pay television (SIC 4841) and/or commercial stations would be 29. OVS: The Commission has radiotelephone communications categorized as small under the SBA certified nine OVS operators. Because companies (SIC 4812). The SBA definition. Thus, we believe that at least these services were introduced so definition for cable and other pay 1,989 ITFS licensees are small recently and only one operator is services is defined above. A small businesses. currently offering programming to our radiotelephone entity is one with 1500 26. DBS: There are presently nine knowledge, little financial information employees or less. For the purposes of DBS licensees, some of which are not is available. Bell Atlantic (certified for this proceeding, we include only an currently in operation. The Commission operation in Dover) and Metropolitan estimate of LMDS video service does not collect annual revenue data for Fiber Systems (‘‘MFS,’’ certified for providers. The vast majority of LMDS DBS and, therefore, is unable to operation in Boston and New York) entities providing video distribution ascertain the number of small DBS have sufficient revenues to assure us could be small businesses under the licensees that could be impacted by that they do not qualify as small SBA’s definition of cable and pay these proposed rules. Although DBS business entities. Two other operators, television (SIC 4841). However, in the service requires a great investment of Residential Communications Network LMDS Second Report and Order, we capital for operation, we acknowledge (‘‘RCN,’’ certified for operation in New defined a small LMDS provider as an that there are several new entrants in York) and RCN/BETG (certified for entity that, together with affiliates and this field that may not yet have operation in Boston), are MFS affiliates attributable investors, has average gross generated $11 million in annual and thus also fail to qualify as small revenues for the three preceding receipts, and therefore may be business concerns. However, Digital calendar years of less than $40 million. categorized as a small business, if Broadcasting Open Video Systems (a We have not yet received approval by independently owned and operated. general partnership certified for the SBA for this definition. 27. HSD: The market for HSD service operation in southern California), Urban 32. There is only one company, is difficult to quantify. Indeed, the Communications Transport Corp. (a CellularVision, that is currently service itself bears little resemblance to corporation certified for operation in providing LMDS video services. other MVPDs. HSD owners have access New York and Westchester), and Although the Commission does not to more than 265 channels of Microwave Satellite Technologies, Inc. collect data on annual receipts, we programming placed on C-band (a corporation owned solely by Frank T. assume that CellularVision is a small satellites by programmers for receipt Matarazzo and certified for operation in business under both the SBA definition and distribution by video service New York) are either just beginning or and our proposed auction rules. We providers, of which 115 channels are have not yet started operations. tentatively conclude that a majority of scrambled and approximately 150 are Accordingly, we believe that three OVS the potential LMDS licensees will be unscrambled. HSD owners can watch licensees may qualify as small business small entities, as that term is defined by unscrambled channels without paying a concerns. the SBA. subscription fee. To receive scrambled 30. SMATVs: Industry sources 33. MDU Operators: The SBA has channels, however, an HSD owner must estimate that approximately 5200 developed definitions of small entities purchase an integrated receiver-decoder SMATV operators were providing for operators of nonresidential from an equipment dealer and pay a service as of December 1995. Other buildings, apartment buildings and subscription fee to an HSD estimates indicate that SMATV dwellings other than apartment programming packager. Thus, HSD operators serve approximately 1.05 buildings, which include all such users include: (1) viewers who subscribe million residential subscribers as of companies generating $5 million or less to a packaged programming service, September 1996. The ten largest in revenue annually. According to the 61070 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

Census Bureau, there were 26,960 Federal Rules That May Duplicate, the proposals, discussions and operators of nonresidential buildings Overlap, or Conflict With the Proposed statements of issues in the Second generating less than $5 million in Rules Further Notice of Proposed Rulemaking, revenue that were in operation for at None. and COMMENT IS SOUGHT regarding least one year at the end of 1992. Also such proposals, discussions and according to the Census Bureau, there IV. Procedural Provisions statements of issues. were 39,903 operators of apartment 36. Ex parte Rules—‘‘Permit-but- 39. It is further ordered that the dwellings generating less than $5 Disclose’’ Proceeding. This proceeding Commission SHALL SEND a copy of million in revenue that were in will be treated as a ‘‘permit-but- this Second Further Notice of Proposed operation for at least one year at the end disclose’’ proceeding subject to the Rulemaking, including the Initial of 1992. The Census Bureau provides no ‘‘permit-but-disclose’’ requirements Regulatory Flexibility Analysis, to the separate data regarding operators of under § 1.1206(b) of the rules. 47 CFR Chief Counsel for Advocacy of the Small dwellings other than apartment 1.1206(b), as revised. Ex parte Business Administration. buildings, and we are unable at this presentations are permissible if Federal Communications Commission. time to estimate the number of such disclosed in accordance with William F. Caton, operators that would qualify as small Commission rules, except during the Acting Secretary. entities. Sunshine Agenda period when [FR Doc. 97–29513 Filed 11–13–97; 8:45 am] presentations, ex parte or otherwise, are Reporting, Recordkeeping, and Other BILLING CODE 6712±01±P generally prohibited. Persons making Compliance Requirements oral ex parte presentations are reminded 34. The Second Further Notice seeks that a memorandum summarizing a NATIONAL RAILROAD PASSENGER comment on whether small broadband presentation must contain a summary of CORPORATION service providers, including small cable the substance of the presentation and operators, should be exempt from the not merely a listing of the subjects 49 CFR Part 701 signal leakage reporting requirements in discussed. More than a one or two § 76.615(b)(7). Such an exemption sentence description of the views and Revision of the Freedom of Information would relieve qualifying providers from arguments presented is generally Act Regulations of the National only the relevant filing requirements, required. See 47 CFR 1.1206(b)(2), as Railroad Passenger Corporation and but not from the signal leakage testing revised. Additional rules pertaining to Implementation of the Electronic requirements. oral and written presentations are set Freedom of Information Act forth in § 1.1206(b). 47 CFR 1.1206(b). Amendments of 1996 (Public Law 104± Significant Alternatives and Steps 37. Filing of Comments and Reply 231) Taken to Minimize the Significant Comments. Pursuant to applicable AGENCY: Economic Impact on a Substantial procedures set forth in §§ 1.415 and National Railroad Passenger Number of Small Entities Consistent 1.419 of the Commission’s Rules, Corporation. With the Stated Objectives interested parties may file comments on ACTION: Proposed rule. or before December 23, 1997, and reply SUMMARY: This notice sets forth This section analyzes the impact on comments on or before January 22, small entities of the regulations proposed revisions of the Freedom of 1998. 47 CFR 1.415 and 1.419. To file Information Act (FOIA) regulations of proposed or considered in the Second formally in this proceeding, you must Further Notice. the National Railroad Passenger file an original plus four copies of all Corporation (‘‘Amtrak’’). The rules 35. The Second Further Notice seeks comments, reply comments, and reflect recent developments in the comment on several proposals which supporting comments. If you want each statute and case law, including the could minimize the economic impact on Commissioner to receive a personal Electronic Freedom of Information Act a substantial number of small entities. copy of your comments and reply Amendments of 1996 (Public Law 104– For instance, in seeking comment on comments, you must file an original 231). The proposed revisions provide what policies should be adopted with plus nine copies. You should send substantive and procedural changes to respect to exclusive contracts, the comments and reply comments to Office conform to the amendments. Amtrak Commission raises the option of a limit of the Secretary, Federal has also taken this opportunity to on the length of exclusive contracts that Communications Commission, 1919 M streamline its rules and include updated would still permit a small MVPD to Street, NW, Washington, DC 20554. cost figures to be used in calculating obtain exclusive contracts for the period Comments and reply comments will be and charging fees. of time necessary to recover its available for public inspection during DATES: Submit comments on or before investment costs in the MDU building. regular business hours in the FCC December 15, 1997. In addition, the Commission seeks Reference Center, Room 239, Federal comment on whether small broadband Communications Commission, 1919 M ADDRESSES: Address all comments service providers, including small cable Street NW, Washington DC 20554. concerning this proposed rule to operators, should be exempt from the Medaris Oliveri, Freedom of signal leakage reporting requirements in V. Ordering Clauses Information Office, National Railroad § 76.615(b)(7). The issue of whether 38. It is ordered that, pursuant to Passenger Corporation, 60 competing providers should be required sections 1, 4(i), 201–205, 214–215, 220, Massachusetts Avenue, N.E., to share home run wiring explores the 303, 623, 624 and 632 of the Washington, DC 20002. possibility of another means by which Communications Act of 1934, as FOR FURTHER INFORMATION CONTACT: small MVPDs may be able to access amended, 47 U.S.C. §§ 151, 154(i), 201– Medaris Oliveri at 202/906–2728. MDUs. Commenters are invited to 205, 214–215, 220, 303, 543, 544 and SUPPLEMENTARY INFORMATION: These address the economic impact of these 552, NOTICE IS HEREBY GIVEN of revisions incorporate changes to the proposals on small entities and offer any proposed amendments to the language and structure of Amtrak’s alternatives. Commission’s rules, in accordance with regulations and also add new provisions Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61071 to implement the Electronic Freedom of ‘‘includes’’ means ‘‘includes but is not (2) Routing and transmittal sheets, Information Act Amendments of 1996 limited to.’’ notes, and filing notes which do not also (Public Law 104–231). New provisions (a) Amtrak or Corporation means the include information, comments, or implementing the amendments are National Railroad Passenger statements of substance. found at § 701.2 definitions, § 701.3 Corporation. (3) Anything that is not a tangible or policy, § 701.4 (c) and (d) reading room (b) Appeal means a request submitted documentary record such as an records, § 701.5 requirements for to the President of Amtrak or designee individual’s memory or oral making requests, § 701.6(f) electronic for review of an adverse initial communication. records, § 701.7 timing of responses to determination. (4) Objects or articles, whatever their requests, § 701.8 (a) and (b) content of (c) Business days means working historical or value as evidence. responses, § 701.9 business information, days; Saturdays, Sundays, and legal (n) Request means any request for § 701.10 appeals, and § 701.11 fees. public holidays are excluded in records made pursuant to 5 U.S.C. Proposed revisions of the fee schedule computing response time for processing 552(a)(3). can be found at § 701.11(e). The FOIA requests. (o) Requester or requesting party duplication charge will remain the same (d) Disclose or disclosure means means any person who has submitted a at 25 cents per page, while document making records available for request to Amtrak. search and review charges will increase examination or copying, or furnishing a (p) Responsive records means from $27 to $38 per hour. The amount copy of nonexempt responsive records. documents determined to be within the at or below which a requester will not (e) Electronic data means records and scope of a FOIA request. be charged will remain the same. information (including E-mail) that are § 701.3 Policy. created, stored, and retrievable by List of Subjects in 49 CFR Part 701 (a) Amtrak will make records of the electronic means. Corporation available to the public to Freedom of Information. (f) Exempt information means the greatest practicable extent in For the reasons stated in the information that is exempt from keeping with the spirit of the law. preamble, Amtrak proposes to revise 49 disclosure under one or more of the Therefore, records of the Corporation CFR part 701 as follows: nine exemptions to the FOIA. are available for public inspection and (g) Final determination means a copying as provided in this part with PART 701ÐAMTRAK FREEDOM OF decision by the President of Amtrak or the exception of those that the INFORMATION ACT PROGRAM designee concerning a request for Corporation specifically determines review of an adverse initial should not be disclosed either in the Sec. determination received in response to a 701.1 General provisions. public interest, for the protection of 701.2 Definitions. FOIA request. private rights, or for the efficient 701.3 Policy. (h) Freedom of Information Act or conduct of public or corporate business, 701.4 Amtrak public information. ‘‘FOIA’’ means the statute as codified in but only to the extent withholding is 701.5 Requirements for making requests. section 552 of Title 5 of the United permitted by law. 701.6 Release and processing procedures. States Code as amended. (b) A record of the Corporation, or 701.7 Timing of responses to requests. (i) Freedom of Information Officer parts thereof, may be withheld from 701.8 Responses to requests. means the Amtrak official designated to 701.9 Business information. disclosure if it comes under one or more fulfill the responsibilities of exemptions in 5 U.S.C. 552(b) or is 701.10 Appeals. implementing and administering the 701.11 Fees. otherwise exempted by law. Disclosure 701.12 Other rights and services. Freedom of Information Act as to a properly constituted advisory specifically designated under this part. Authority: 5 U.S.C. 552; 49 U.S.C. committee, to Congress, or to federal 24301(e). (j) Initial determination means a agencies does not waive the exemption. decision by an Amtrak FOIA Officer in (c) In the event one or more § 701.1 General provisions. response to a request for information exemptions apply to a record, any This part contains the rules that the under the FOIA. reasonably segregable portion of the National Railroad Passenger Corporation (k) Pages means paper copies of record will be made available to the (‘‘Amtrak’’) follows in processing standard office size or the cost requesting person after deletion of the requests for records under the Freedom equivalent in other media. exempt portions. The entire record may of Information Act (FOIA), Title 5 of the (l) President means the Chairman, be withheld if a determination is made United States Code, section 552. President and Chief Executive Officer that nonexempt material is so Information routinely provided to the (CEO) of the National Railroad inextricably intertwined that disclosure public (i.e., train timetables, press Passenger Corporation (Amtrak) or would leave only essentially releases) may be obtained without designee. meaningless words or phrases, or when following Amtrak’s FOIA procedures. (m) Record means any writing, it can be reasonably assumed that a As a matter of policy, Amtrak may make drawing, map, recording, tape, film, skillful and knowledgeable person discretionary disclosures of records or photograph, or other documentary could reconstruct the deleted information exempt under the FOIA material by which information is information. whenever disclosure would not preserved in any format, including (d) The procedures in this part apply foreseeably harm an interest protected electronic format. A record must exist only to records in existence at the time by a FOIA exemption; however, this and be in the possession and control of of a request. The Corporation has no policy does not create any right Amtrak at the time of the request to be obligation to create a record solely for enforceable in court. subject to this part and the FOIA. The the purpose of making it available under following are not included within the the FOIA or to provide a record that will § 701.2 Definitions. definition of the word ‘‘record’’: be created in the future. Unless the context requires otherwise (1) Library materials compiled for (e) Each officer and employee of the in this part, masculine pronouns reference purposes or objects of Corporation dealing with FOIA requests include the feminine gender and substantial intrinsic value. is directed to cooperate in making 61072 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules records available for disclosure under widespread media or commercial specific information such as dates, title the Act in a prompt manner consistent interest in the records. or name, author, recipient, subject with this part. (2) The provision in this paragraph is matter of the record, file designation or (f) The FOIA time limits will not intended for situations where public number, or other pertinent details for begin to run until a request has been access in a timely manner is important. each record or category of records identified as being made under the Act It is not intended to apply where there sought. and deemed received by the Freedom of may be a limited number of requests (2) Reformulation of a request. Information Office. over a short period of time from a few Amtrak is not obligated to act on a (g) Generally, when a member of the requesters. Amtrak may remove the request until the requester provides public complies with the procedures records from this category when it is sufficient information to locate the established in this part for obtaining determined that access is no longer record. Amtrak may offer assistance in records under the FOIA, the request necessary. identifying records and reformulating a shall receive prompt attention, and a (d) Guide for making requests. A request where the description is response shall be made within twenty guide on how to use the FOIA for considered insufficient, the production business days. requesting records from Amtrak shall be of voluminous records is required, or a made available to the public upon considerable number of work hours § 701.4 Amtrak public information. request. Amtrak’s major information would be required that would interfere (a) Public reading room. Amtrak systems will be described in the guide. with the business of the Corporation. maintains a public reading room at its The Freedom of Information Office shall headquarters at 60 Massachusetts § 701.5 Requirements for making requests. notify the requester within ten business Avenue, N.E. in Washington, D.C. The (a) General requirements. (1) A FOIA days of the type of information that will public reading room contains records request can be made by ‘‘any person’’ as facilitate the search. The requesting required under the FOIA to be regularly defined in 5 U.S.C. 551(2), which party shall be given an opportunity to available for public inspection and encompasses individuals (including supply additional information and may copying. A current subject-matter index foreign citizens; partnerships; submit a revised request, which will be shall be maintained of records in the corporations; associations; and local, treated as a new request. public reading room that are available state, tribal, and foreign governments). (d) Payment of fees. The submission for inspection and copying. The index A FOIA request may not be made by a of a FOIA request constitutes an shall be updated at least quarterly with federal agency. agreement to pay applicable fees respect to newly included records. A (2) A request must be in writing, accessed up to $25.00 unless the copy of the index shall be provided indicate that it is being made under the requesting party specifies a willingness upon request at a cost not to exceed the FOIA, and provide an adequate to pay a greater or lesser amount or direct cost of duplication. description of the records sought. The seeks a fee waiver or reduction in fees. (b) Electronic reading room. Amtrak request should also include applicable (1) Fees in excess of $25.00. When will make available electronically information regarding fees as specified Amtrak determines or estimates that reading room records created by the in paragraphs (d) and (e) of this section. applicable fees are likely to exceed Corporation on or after November 1, (b) How to submit a request. (1) A $25.00, the requesting party shall be 1996 on its World Wide Web site which request must clearly state on the notified of estimated or actual fees, can be accessed at http:// envelope and in the letter that it is a unless a commitment has been made in www.Amtrak.com. An index of the Freedom of Information Act or ‘‘FOIA’’ advance to pay all fees. If only a portion Corporation’s reading room records will request. of the fee can be estimated readily, also be made available at the web site. (2) The request must be addressed to Amtrak shall advise the requester that The index will indicate reading room the Freedom of Information Office; the estimated fee may be a portion of the records that are available electronically. National Railroad Passenger total fee. (c) Frequently requested information. Corporation; 60 Massachusetts Avenue, (i) In order to protect requesters from The FOIA requires that copies of N.E.; Washington, D.C. 20002. Requests large and/or unexpected fees, Amtrak records, regardless of form or format, will also be accepted by facsimile at will request a specific commitment released pursuant to a FOIA request (202) 906–2169. Amtrak cannot assure when it estimates or determines that under 5 U.S.C. 552(a)(3) that have that a timely or satisfactory response fees will exceed $100.00. become or are likely to become the under this part will be given to written (ii) A request shall not be considered subject of subsequent requests for requests addressed to Amtrak offices, received, and further processing carried substantially the same records be made officers, or employees other than the out until the requesting party agrees to publicly available. Such records created Freedom of Information Office. Amtrak pay the anticipated total fee. Any such by the Corporation after November 1, employees receiving a communication agreement must be memorialized in 1996 will be made available in the nature of a FOIA request shall writing. A notice under this paragraph electronically while records created forward it to the FOIA Office will offer the requesting party an prior to this date will be made available expeditiously. Amtrak shall advise the opportunity to discuss the matter in for inspection and copying in Amtrak’s requesting party of the date that an order to reformulate the request to meet public reading room. improperly addressed request is the requester’s needs at a lower cost. (1) Amtrak shall decide on a case-by- received by the FOIA Office. (iii) Amtrak will hold in abeyance for case basis whether records fall into the (c) Content of the request. (1) forty-five (45) days requests requiring category of ‘‘frequently requested FOIA Description of records—Identification of agreement to pay fees and will thereafter records’’ based on the following factors: records sought under the FOIA is the deem the request closed. This action (i) Previous experience with similar responsibility of the requester. The will not prevent the requesting party records; records sought should be described in from refiling the FOIA request with a fee (ii) The nature and type of sufficient detail so that Amtrak commitment at a subsequent date. information contained in the records; personnel can locate them with a (2) Fees in excess of $250. When (iii) The identity and number of reasonable amount of effort. When Amtrak estimates or determines that requesters and whether there is possible, the request should include allowable charges are likely to exceed Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61073

$250, an advance deposit of the entire discretion, inform the requester that appear to qualify for fast track fee may be required before continuing to complete nonexempt records will be processing to provide an opportunity to process the request. provided when available without having limit the scope of the request and (e) Information regarding fee category. to submit an additional request. qualify for a faster track. Such In order to determine the appropriate (f) Electronic records. Amtrak is not notification shall be at the discretion of fee category, a request should indicate obligated to process a request for the FOIA Office and will depend largely whether the information sought is electronic records where creation of a on whether it is believed that a intended for commercial use or whether record, programming or a particular narrowing of the request could place the the requesting party is a member of the format would result in a significant request on a faster track. staff of an educational or expenditure of resources or interfere (d) Unusual circumstances. (1) The noncommercial scientific institution or with the corporation’s operations. requesting party shall be notified in a representative of the news media. writing if the time limits for processing § 701.7 Timing of responses to requests. (f) Records concerning other a request cannot be met because of individuals. If the request is for records (a) General. (1) The time limits of the unusual circumstances, and it will be concerning another individual, either a FOIA will begin only after the necessary to extend the time limits for written authorization signed by that requirements for submitting a request as processing the request. The notification individual permitting disclosure of established in § 701.5 have been met, shall include the date by which the those records to the requesting party or and the request is deemed received by request can be expected to be proof that the individual is deceased the Freedom of Information Office. completed. Where the extension is for (i.e., a copy of a death certificate or an (2) A request for records shall be more than ten business days, the considered to have been received on the obituary) will help to expedite requesting party will be afforded an later of the following dates: processing of the request. opportunity to either modify the request (i) The requester has agreed in writing so that it may be processed within the to pay applicable fees in accordance § 701.6 Release and processing time limits or to arrange an alternative procedures. with § 701.5(d), or time period for processing the initial (a) General provisions. In determining (ii) The fees have been waived in accordance with § 701.11(k), or request or modified request. records that are responsive to a request, (2) If Amtrak believes that multiple Amtrak will ordinarily include only (iii) Payment in advance has been received from the requester when requests submitted by a requester or by records that exist and are in the a group of requesters acting in concert possession and control of the required in accordance with § 701.11(i). (3) The time for responding to constitute a single request that would Corporation as of the date that the requests set forth in paragraph (b) of this otherwise involve unusual search is begun. If any other date is section may be delayed if: circumstances and the requests involve used, the requesting party will be (i) The request does not sufficiently clearly related matters, the requests may informed of that date. identify the fee category applicable to be aggregated. Multiple requests (b) Authority to grant or deny the request; concerning unrelated matters may not requests. Amtrak’s FOIA officer is (ii) The request does not state a be aggregated. authorized to grant or deny any request willingness to pay all fees; (3) Unusual circumstances that may for records. (iii) A request seeking a fee waiver justify delay include: (c) Notice of referral. If Amtrak refers does not address the criteria for fee (i) The need to search for and collect all or any part of the responsibility for waivers set forth in § 701.11(k); the requested records from other responding to a request to another (iv) A fee waiver request is denied, facilities that are separate from Amtrak’s organization, the requesting party will and the request does not include an headquarters offices. be notified. A referral shall not be alternative statement indicating that the (ii) The need to search for, collect, considered a denial of access within the requesting party is willing to pay all and examine a voluminous amount of meaning of this part. All consultations fees. separate and distinct records sought in and referrals of requests will be handled (b) Initial determination. Whenever a single request. according to the date that the FOIA possible, an initial determination to (iii) The need for consultation, which request was initially received. release or deny a record shall be made shall be conducted with all practicable (d) Creating a record. There is no within twenty business days after speed, with agencies having a obligation on the part of Amtrak to receipt of the request. In ‘‘unusual substantial interest in the determination create, compile, or obtain a record to circumstances’’ as described in of the request, or among two or more satisfy an FOIA request. The FOIA also paragraph (d) of this section, the time Amtrak components having a does not require that a new computer for an initial determination may be substantial subject-matter interest in the program be developed to extract the extended for ten business days. request. records requested. Amtrak may compile (c) Multitrack processing. (1) Amtrak (e) Expedited processing. (1) Requests or create a new record, however, when may use two or more processing tracks and appeals may be taken out of order doing so would result in a more useful by distinguishing between simple and and given expedited treatment response to the requesting party or more complex requests based on the whenever it is determined that they would be less burdensome to Amtrak amount of work and/or time needed to involve a compelling need, which than providing existing records. The process a request or the number of pages means: cost of creating or compiling such a involved. (i) Circumstances in which the lack of record may not be charged to the (2) In general, when requests are expedited treatment could reasonably be requester unless the fee for creating the received, Amtrak’s FOIA Office will expected to pose an imminent threat to record is equal to or less than the fee review and categorize them for tracking the life or physical safety of an that would be charged for providing the purposes. Requests within each track individual; and existing record. will be processed according to date of (ii) An urgency to inform the public (e) Incomplete records. If the records receipt. about an actual or alleged Amtrak requested are not complete at the time (3) The FOIA Office may contact a activity, if made by a person primarily of a request, Amtrak may, at its requester when a request does not engaged in disseminating information. 61074 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

(2) A request for expedited processing any FOIA exemptions applied in (2) Amtrak has reason to believe that may be made at the time of the initial denying the request; the information may be protected from request for records or at a later date. (ii) An estimate of the volume of disclosure under Exemption 4. (3) A requester seeking expedited information withheld (number of pages (f) Opportunity to object to disclosure. processing must submit a statement, or some other reasonable form of Amtrak will allow a submitter a certified to be true and correct to the estimation). An estimate does not need reasonable amount of time to respond to best of that person’s knowledge and to be provided if the volume is the notice described in paragraph (d) of belief, explaining in detail the basis for indicated through deletions on records this section. requesting expedited processing. This disclosed in part, or if providing an (1) A detailed written statement must statement must accompany the request estimate would harm an interest be submitted to Amtrak if the submitter in order to be considered and responded protected by an applicable exemption; has any objection to disclosure. The to within the ten calendar days required (iii) A statement that an appeal may statement must specify all grounds for for decisions on expedited access. be filed under § 701.10 and a withholding any specified portion of the (4) A requester who is not a full-time description of the requirements of that information sought under the FOIA. In member of the news media must section; and the case of Exemption 4, it must show establish that he is a person whose main why the information is a trade secret or professional activity or occupation is (iv) The name and title or position of the person responsible for the denial. commercial or financial information information dissemination, though it that is privileged or confidential. need not be his sole occupation. A § 701.9 Business information. (2) In the event that a submitter fails requester must establish a particular to respond within the time specified in urgency to inform the public about the (a) General. Business information held by Amtrak will be disclosed under the notice, the submitter will be Amtrak activity involved in the request. considered to have no objection to (5) Within ten business days of receipt the FOIA only under this section. disclosure of the information sought of a request for expedited processing, (b) Definitions. For purposes of this under the FOIA. Amtrak shall determine whether to section, the following definitions apply: (3) Information provided by a grant such a request and notify the (1) Business information means submitter in response to the notice may requester of the decision. If a request for commercial or financial information be subject to disclosure under the FOIA. expedited treatment is granted, the held by Amtrak that may be protected (g) Notice of intent to disclose. request shall be given priority and shall from disclosure under Exemption 4 of Amtrak shall consider a submitter’s be processed as soon as practicable. the FOIA, 5 U.S.C. 552(b)(4). (6) Amtrak shall provide prompt objections and specific grounds for (2) Submitter means any person or disclosure in making a determination consideration of appeals of decisions entity including partnerships; denying expedited processing. whether to disclose the information. In corporations; associations; and local, any instance, when a decision is made § 701.8 Responses to requests. state, tribal, and foreign governments. to disclose information over the (a) Granting of requests. When an (c) Designation of business objection of a submitter, Amtrak shall initial determination is made to grant a information. A submitter of business give the submitter written notice which request in whole or in part, the information will use good faith efforts to shall include: requesting party shall be notified in designate, by appropriate markings, (1) A statement of the reason(s) why writing and advised of any fees charged either at the time of submission or at a each of the submitter’s objections to under § 701.11(e). The records shall be reasonable time thereafter, any portions disclosure was not sustained; disclosed to the requesting party of its submission that it considers to be (2) A description of the information to promptly upon payment of applicable protected from disclosure under be disclosed; and fees. Exemption 4. These designations will (3) A specified disclosure date, which (b) Adverse determination of requests. expire ten years after the date of the shall be a reasonable time subsequent to (1) Types of denials.—The requesting submission unless the submitter the notice. party shall be notified in writing of a requests and provides justification for a (h) Exceptions to notice requirements. determination to deny a request in any longer designation period. The notice requirements of this section respect. Adverse determinations or (d) Notice to submitters. Amtrak shall shall not apply if: denials of records consist of: provide a submitter with prompt written (1) Amtrak determines that the (i) A determination to withhold any notice of a FOIA request or an appeal information should not be disclosed; requested record in whole or in part; that seeks its business information when (2) The information has been (ii) A determination that a requested required under paragraph (e) of this published or has been officially made record does not exist or cannot be section, except as provided in paragraph available to the public; located; (h), in order to give the submitter an (3) Disclosure of the information is (iii) A denial of a request for opportunity to object to disclosure of expedited treatment; and required by law (other than the FOIA); any specified portion of the information (4) The designation made by the (iv) A determination on any disputed under paragraph (f). The notice shall fee matter including a denial of a submitter under paragraph (c) of this either describe the business information section appears obviously frivolous. In request for a fee waiver. requested or include copies of the (2) Deletions. When practical, records such a case, Amtrak shall within a requested records or portions of records disclosed in part shall be marked or reasonable time prior to a specified containing the information. annotated to show both the amount and disclosure date, give the submitter location of the information deleted. (e) When notice is required. Notice written notice of the final decision to (3) Content of denial letter. The denial shall be given to a submitter when: disclose the information; or letter shall be signed by the Freedom of (1) The information has been (5) The information requested is not Information Officer or designee and designated in good faith by the designated by the submitter as exempt shall include: submitter as information considered from disclosure in accordance with this (i) A brief statement of the reason(s) protected from disclosure under part, unless Amtrak has substantial for the adverse determination including Exemption 4; or reason to believe that disclosure of the Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61075 information would result in competitive reprocessed in accordance with the employee plus applicable benefits and harm. decision. the cost of operating reproduction (i) Notice of a FOIA lawsuit. (c) When appeal is required. The equipment). Direct costs do not include Whenever a FOIA requester files a requesting party must appeal any overhead expenses such as the costs of lawsuit seeking to compel disclosure of adverse determination prior to seeking space and heating or lighting of the business information, Amtrak shall judicial review. facility. promptly notify the submitter. § 701.11 Fees. (c) Fee categories. There are four (j) Notice to requesters. (1) When categories of FOIA requesters for fee (a) General. Amtrak shall charge for Amtrak provides a submitter with notice purposes: ‘‘commercial use requesters,’’ processing requests under the FOIA in and an opportunity to object to ‘‘representatives of the news media,’’ accordance with this section. A fee of disclosure under paragraph (f) of this ‘‘educational and non-commercial $9.50 per quarter hour shall be charged section, the FOIA Office shall also scientific institution requesters,’’ and for search and review. For information notify the requester(s). ‘‘all other requesters.’’ The categories concerning other processing fees, refer (2) When Amtrak notifies a submitter are defined in paragraphs (c)(1) through to paragraph (e) of this section. Amtrak of its intent to disclose requested (5), and applicable fees, which are the shall collect all applicable fees before information under paragraph (g) of this same for two of the categories, will be releasing copies of requested records to section, Amtrak shall also notify the assessed as specified in paragraph (d) of the requesting party. Payment of fees requester(s). this section. shall be made by check or money order (3) When a submitter files a lawsuit (1) Commercial requesters. The term payable to the National Railroad seeking to prevent the disclosure of ‘‘commercial use’’ request refers to a Passenger Corporation. business information, Amtrak shall request from or on behalf of a person notify the requester(s). (b) Definitions. For purposes of this section: who seeks information for a use or § 701.10 Appeals. (1) Search means the process of purpose that furthers his commercial, trade, or profit interests, including (a) Appeals of adverse looking for and retrieving records or furthering those interests through determinations. (1) The requesting party information responsive to a request. It litigation. Amtrak shall determine, may appeal: includes page-by-page or line-by-line (i) A decision to withhold any identification of information within whenever reasonably possible, the use requested record in whole or in part; records and also includes reasonable to which a requester will put the records (ii) A determination that a requested efforts to locate and retrieve information sought by the request. When it appears record does not exist or cannot be from records maintained in electronic that the requesting party will put the located; form or format. records to a commercial use, either (iii) A denial of a request for (2) Review means the process of because of the nature of the request expedited treatment; or examining a record located in response itself or because Amtrak has reasonable (iv) Any disputed fee matter or the to a request to determine whether one cause to doubt the stated intended use, denial of a request for a fee waiver. or more of the statutory exemptions of Amtrak shall provide the requesting (2) The appeal must be addressed to the FOIA apply. Processing any record party with an opportunity to submit the Chairman, President and CEO; for disclosure includes doing all that is further clarification. Where a requester National Railroad Passenger necessary to redact the record and does not explain the use or where Corporation; 60 Massachusetts Avenue, prepare it for release. Review time explanation is insufficient, Amtrak may N.E.; Washington, D.C. 20002. includes time spent considering formal draw reasonable inferences from the (3) The appeal must be in writing and objection to disclosure by a commercial requester’s identity and charge specify the relevant facts and the basis submitter under § 701.9, but does not accordingly. for the appeal. The appeal letter and include time spent resolving general (2) Representative of the news media envelope must be marked prominently legal or policy issues regarding the or news media requester refers to any ‘‘Freedom of Information Act Appeal’’ application of exemptions. Review costs person actively gathering news for an to ensure that it is properly routed. are recoverable even if a record entity that is organized and operated to (4) The appeal must be received by ultimately is not disclosed. publish or broadcast news to the public. the President’s Office within thirty (30) (3) Reproduction means the making of The term ‘‘news’’ means information days of the date of denial. a copy of a record or the information that is about current events or that (5) An appeal will not be acted upon contained in it in order to respond to a would be of current interest to the if the request becomes a matter of FOIA FOIA request. Copies can take the form public. Examples of news media entities litigation. of paper, microform, audiovisual include television or radio stations (b) Responses to appeals. The materials, or electronic records (i.e., broadcasting to the public at large and decision on any appeal shall be made in magnetic tape or disk) among others. publishers of periodicals (but only in writing. Amtrak shall honor a requester’s those instances where they can qualify (1) A decision upholding an adverse specified preference for the form or as disseminators of news). For determination in whole or in part shall format of disclosure if the record is ‘‘freelance’’ journalists to be regarded as contain a statement of the reason(s) for readily reproducible with reasonable working for a news organization, they such action, including any FOIA effort in the requested form or format by must demonstrate a solid basis for exemption(s) applied. The requesting the office responding to the request. expecting publication through an party shall also be advised of the (4) Direct costs means those expenses organization. A publication contract provision for judicial review of the actually incurred in searching for and would be the clearest proof, but Amtrak decision contained in 5 U.S.C. reproducing (and, in the case of shall also look to the past publication 552(a)(4)(B). commercial use requests, reviewing) record of a requester in making this (2) If the adverse determination is records to respond to a FOIA request. determination. A request for records reversed or modified on appeal in whole Direct costs include such costs as the supporting the news dissemination or in part, the requesting party shall be salary of the employee performing the function of the requester shall not be notified, and the request will be work (the basic rate of pay for the considered to be for commercial use. 61076 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

(3) Educational institution refers to a attributable to searching for responsive (2) Minimum fee. No fees will be preschool, a public or private records as well as the costs of operator/ charged if the cost of collecting the fee elementary or secondary school, an programmer salary apportionable to the is equal to or greater than the fee itself. institution of undergraduate higher search. That cost includes the costs to Amtrak education, an institution of graduate (3) Duplication fees. Duplication fees for billing, receiving, recording, and higher education, an institution of will be charged all requesters subject to processing the fee for deposit, which professional education, or an institution limitations specified in paragraph (d) of has been deemed to be $10.00. of vocational education that operates a this section. Amtrak shall charge 25 (3) Computer searches. With the program of scholarly research. To be in cents per page for a paper photocopy of exception of requesters seeking this category, a requester must show a record. For copies produced by documents for commercial use, Amtrak that the request is authorized by and is computer (such as tapes or printouts), shall not charge fees for computer made under the auspices of a qualifying Amtrak will charge the direct costs, search until the cost of search equals the institution and that the records are not including the operator time in equivalent dollar amount of two hours sought for commercial use but to further producing the copy. For other forms of of the salary of the operator performing scholarly research. duplication, Amtrak will charge the the search. (4) Noncommercial scientific direct costs of that duplication. (h) Nonproductive searches. Amtrak institution refers to an institution that is (4) Review fees. Review fees will be may charge for time spent for search and not operated on a ‘‘commercial’’ basis, assessed for commercial use requests. review even if responsive records are as that term is defined in paragraph Such fees will be assessed for review not located or if the records located are (c)(1) of this section, and that is conducted in making an initial determined to be entirely exempt from operated solely for the purpose of determination, or upon appeal when disclosure. conducting scientific research, the review is conducted to determine (i) Advance payments. (1) When results of which are not intended to whether an exemption not previously Amtrak estimates or determines that promote any particular product or considered is applicable. charges are likely to exceed $250, an industry. To be in this category, the (5) Charges for other services. The advance payment of the entire fee may requesting party must show that the actual cost or amount shall be charged be required before continuing to process request is authorized by and is made for all other types of output, production, the request. under the auspices of a qualifying and duplication (e.g., photographs, (2) When there is evidence that the institution and that the records are not maps, or printed materials). requester may not pay the fees that sought for commercial use but to further Determinations of actual cost shall would be incurred by processing the scientific research. include the commercial cost of the request, an advance deposit may be (5) Other requesters refers to media, the personnel time expended in required. Amtrak may require the full requesters who do not come under the making the item available for release, amount due plus applicable interest and purview of paragraphs (c) (1) through (4) and an allocated cost for the equipment an advance payment of the full amount of this section. used in producing the item. The of anticipated fees before beginning to (d) Assessing fees. In responding to requesting party will be charged actual process a new request or continuing to FOIA requests, Amtrak shall charge the production costs when a commercial process a pending request where a following fees unless a waiver or a service is required. Items published and requester has previously failed to pay a reduction in fees has been granted available through Amtrak will be made properly charged FOIA fee within thirty under paragraph (k) of this section: available at the publication price. (30) days of the date of billing. The time (1) ‘‘Commercial use’’ requesters: The limits of the FOIA will begin only after (6) Charges for special services. Apart full allowable direct costs for search, Amtrak has received such payment. from the other provisions of this section, review, and duplication of records. (3) Amtrak will hold in abeyance for when Amtrak chooses as a matter of (2) ‘‘Representatives of the news forty-five (45) days requests where discretion to provide a special service media’’ and ‘‘educational and non- deposits are due. commercial scientific institution’’ such as certifying that records are true (4) Monies owed for work already requesters: Duplication charges only, copies or sending records by other than completed (i.e., before copies are sent to excluding charges for the first 100 ordinary mail, the direct costs of a requester) is not considered an pages. providing such services shall be advance payment. (3) ‘‘All other’’ requesters: The direct charged. (5) Amtrak shall not deem a request costs of search and duplication of (f) Commitment to pay fees. When as being received in cases in which an records. The first 100 pages of Amtrak determines or estimates that advance deposit or payment is due, and duplication and the first two hours of applicable fees will likely exceed further work will not be done until the search time shall be provided without $25.00, the requesting party will be required payment is received. charge. notified of the actual or estimated (j) Charging interest. Amtrak may (e) Schedule of fees. (1) Manual amount unless a written statement has charge interest on any unpaid bill for searches—Personnel search time been received indicating a willingness processing charges starting on the 31st includes time expended in either to pay all fees. To protect requesters day following the date of billing the manual searches for paper records, from large and/or unexpected fees, requester. Interest charges will be searches using indices, review of Amtrak will request a specific assessed at the rate that Amtrak pays for computer search results for relevant commitment when it is estimated or short-term borrowing. records, and personal computer system determined that fees will exceed (k) Waiver or reduction of fees. (1) searches. $100.00. See § 701.5(d) for additional Automatic waiver of fees—When the (2) Computer searches. The direct information. costs for a FOIA request total $10.00 or costs of conducting a computer search (g) Restrictions in accessing fees. (1) less, fees shall be waived automatically will be charged. These direct costs will General—Fees for search and review for all requesters regardless of category. include the cost of operating a central will not be charged for a quarter-hour (2) Other fee waivers. Decisions to processing unit for that portion of the period unless more than half of that waive or reduce fees that exceed the operating time that is directly period is required. automatic waiver threshold shall be Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61077 made on a case-by-case basis. Records the level of public understanding aggregation is warranted. Multiple responsive to a request will be furnished existing prior to the disclosure, must be requests involving unrelated matters without charge or at below the enhanced by the disclosure to a may not be aggregated. established charge where Amtrak significant extent. determines, based on all available (4) To determine whether the fee § 701.12 Other rights and services. information, that disclosure of the waiver requirement in paragraph Nothing in this part shall be requested information is in the public (k)(2)(ii) of this section is met, Amtrak construed to entitle any person, as of interest because: will consider the following factors: right, to any service or to the disclosure (i) It is likely to contribute (i) The existence and magnitude of a of any record to which such person is significantly to public understanding of commercial interest—whether the not entitled under the FOIA. the operations or activities of Amtrak requesting party has a commercial Dated: November 6, 1997. interest that would be furthered by the and Sarah H. Duggin, (ii) It is not primarily in the requested disclosure. Amtrak shall commercial interest of the requesting consider any commercial interest of the Vice President and General Counsel. party. requesting party (with reference to the [FR Doc. 97–29717 Filed 11–13–97; 8:45 am] (3) To determine whether fee waiver definition of ‘‘commercial use’’ in BILLING CODE 7531±01±P requirement in paragraph (k)(2)(i) of this paragraph (c)(1) of this section), or any section is met, Amtrak will consider the person on whose behalf the requesting following factors: party may be acting that would be DEPARTMENT OF COMMERCE (i) The subject of the request— furthered by the requested disclosure. whether the subject of the requested Requesters shall be given an National Oceanic and Atmospheric records concerns the operations or opportunity to provide explanatory Administration activities of Amtrak. The subject of the information regarding this 50 CFR Part 216 requested records must concern consideration. identifiable operations or activities of (ii) The primary interest in [Docket No. 971023253±7253±01; I.D. Amtrak with a connection that is direct disclosure—whether the magnitude of 093097E] and clear, not remote or attenuated. the identified commercial interest of the (ii) The informative value of the requester is sufficiently large in Taking and Importing Marine information to be disclosed—whether comparison with the public interest in Mammals; Taking Marine Mammals the disclosure is likely to contribute to disclosure, that disclosure is ‘‘primarily Incidental to Rocket Launches an understanding of Amtrak operations in the commercial interest of the AGENCY: National Marine Fisheries or activities. The disclosable portions of requester.’’ A fee waiver or reduction is the requested records must be Service (NMFS), National Oceanic and justified where the public interest Atmospheric Administration (NOAA), meaningfully informative about standard is satisfied and that public Commerce. Amtrak’s operations or activities in interest is greater in magnitude than any order to be found to be likely to identified commercial interest in ACTION: Notice of receipt of a petition for contribute to an increased public disclosure. regulations and an application for a understanding of those operations or (5) Requests for a fee waiver will be small take exemption; request for activities. The disclosure of information considered on a case-by-case basis, comment and information. that already is in the public domain, in based upon the merits of the SUMMARY: NMFS has received a request either a duplicative or a substantially information provided. Where it is from the 30th Space Wing, U.S. Air identical form, would not be as likely to difficult to determine whether the Force for a small take of marine contribute to such understanding where request is commercial in nature, Amtrak mammals incidental to missile and nothing new would be added to the may draw inference from the requester’s rocket launches, aircraft flight test public’s understanding. identity and the circumstances of the operations and helicopter operations at (iii) The contribution to an request. Vandenberg Air Force Base, CA understanding of the subject by the (6) Requests for a waiver or reduction (Vandenberg). As a result of that public likely to result from disclosure of fees must address the factors listed in request, NMFS is considering whether —whether disclosure of the requested paragraphs (k)(3) and (4) of this section. to propose regulations that would information will contribute to public In all cases, the burden shall be on the authorize the incidental taking of a understanding. The disclosure must requesting party to present evidence of small number of marine mammals. In contribute to the understanding of a information in support of a request for order to issue such regulations, NMFS reasonably broad audience of persons a waiver of fees. must determine that these takings will interested in the subject as opposed to (l) Aggregating requests. A requester have a negligible impact on the affected the individual understanding of the may not file multiple requests at the species and stocks of marine mammals. requester. A requester’s ability and same time in order to avoid payment of NMFS invites comment on the expertise in the subject area as well as fees. Where Amtrak reasonably believes application and suggestions on the the requester’s intention to effectively that a requester or a group of requesters content of the regulations. convey information to the public shall acting in concert is attempting to divide be considered. It shall be presumed that a request into a series of requests for the DATES: Comments and information must a representative of the news media will purpose of avoiding fees, Amtrak may be postmarked no later than December satisfy this consideration. aggregate those requests and charge 15, 1997. (iv) The significance of the accordingly. Amtrak may presume that ADDRESSES: Comments should be contribution to public understanding— multiple requests of this type made addressed to Michael Payne, Chief, whether the disclosure is likely to within a 30-day period have been made Marine Mammal Division, Office of contribute significantly to public in order to avoid fees. Where requests Protected Resources, National Marine understanding of Amtrak operations or are separated by a longer period, Amtrak Fisheries Service, 1315 East-West activities. The public’s understanding of may aggregate them only when there Highway, Silver Spring, MD 20910– the subject in question, as compared to exists a solid basis for determining that 3226. A copy of the application may be 61078 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules obtained by writing to the above Vandenberg is located on the south- Vandenberg launch site during every address, telephoning the person below central coast of California. The base launch, while sonic booms may be (see FOR FURTHER INFORMATION CONTACT). covers approximately 98,000 acres in heard on NCI, specifically San Miguel FOR FURTHER INFORMATION CONTACT: western Santa Barbara County. The Air and Santa Rosa Islands, only during Kenneth R. Hollingshead, Office of Force’s primary missions at Vandenberg certain launches of certain rocket types Protected Resources, NMFS, (301) 713– are to launch and track satellites in (principally Titan IV). Because the noise 2055, or Irma Lagomarsino, Southwest space, test and evaluate the United may potentially result in disturbance of Regional Office, NMFS, (310) 980–4016. State’s intercontinental ballistic missile pinnipeds, an MMPA authorization is SUPPLEMENTARY INFORMATION: systems, and support aircraft operations. required in order to exempt the As a nonmilitary facet of operations, applicant from the penalties of the Background Vandenberg is also committed to MMPA for taking by harassment that Section 101(a)(5)(A) of the Marine promoting commercial space launch occurs in compliance with such Mammal Protection Act (16 U.S.C. 1361 ventures. authorization. et seq.) (MMPA) directs the Secretary of Vandenberg anticipates a total of 10 Regulations, if issued, would replace Commerce to allow, upon request, the launches annually for Minuteman and annual incidental harassment incidental, but not intentional taking of Peacekeeper missiles from North authorizations issued to Vandenberg for marine mammals by U.S. citizens who Vandenberg and a total of 20 launches takings incidental to launches by engage in a specified activity (other than annually for space launches (6 Delta II, Lockheed Martin launch vehicles (62 FR commercial fishing) within a specified 3 Taurus, 2 Atlas, 3 Titan IV, 2 Titan II 40335, July 28, 1997), McDonnell geographical region if certain findings and 4 Lockheed launch vehicles) from Douglas Aerospace Delta II rocket are made and regulations are issued. South Vandenberg. launches (61 FR 59218, November 21, Permission may be granted for periods Launch operations are a major source 1996), Taurus launches (62 FR 734, of 5 years or less if the Secretary finds of noise. The operation of launch January 6, 1997) and Titan II and Titan that the taking will have a negligible vehicle engines produces significant IV launches (61 FR 64337, December 4, impact on the species or stock(s), will sound levels. Generally, four types of 1996). In addition, these regulations not have an unmitigable adverse impact noise occur during a launch. They are: would authorize takings incidental to on the availability of the species or (1) Combustion noise from launch Minuteman and Peacekeeper missile stock(s) for subsistence uses, and vehicle chambers; (2) jet noise generated launches, aircraft flight test operations regulations are prescribed setting forth by the interaction of the exhaust jet and and helicopter operations, which have the permissible methods of taking, and the atmosphere; (3) combustion noise not been authorized previously. the requirements pertaining to the from the post-burning of combustion monitoring and reporting of such taking. products; and (4) sonic booms. Information Solicited NMFS has defined ‘‘negligible impact’’ Noise disturbance from operations on NMFS requests interested persons to in 50 CFR 216.103 as ‘‘an impact Vandenberg may cause negligible short- submit comments, information, and resulting from the specified activity that term impacts to pinnipeds (seals and sea suggestions concerning the request and cannot be reasonably expected to, and is lions) hauled out on the Vandenberg the structure and content of the not reasonably likely to, adversely affect coastline. The principal form of impacts regulations to allow the taking. NMFS the species or stock through effects on would be infrequent and unintentional will consider this information in annual rates of recruitment or survival.’’ incidental harassment resulting from developing proposed regulations to noise generated by aircraft and by Description of Request authorize the taking. If NMFS proposes missile and rocket launches. There is a regulations to allow this take, interested On September 30, 1997, NMFS potential for launch noises and sonic parties will be given ample time and received an application for an booms to cause a startle response and opportunity to comment. incidental, small take exemption under flight to water for those harbor seals, section 101(a)(5)(A) of the MMPA from California sea lions and other pinnipeds Dated: November 6, 1997. the 30th Space Wing, Vandenberg to that may haul out on the coastline of David L. Evans, take marine mammals incidental to Vandenberg and on the Northern Deputy Assistant Administrator for Fisheries, missile and rocket launches, aircraft Channel Islands (NCI). Launch noise is National Marine Fisheries Service. flight test operations, and helicopter expected to occur over the coastal [FR Doc. 97–29935 Filed 11–13–97; 8:45 am] operations at Vandenberg. habitats in the vicinity of the BILLING CODE 3510±22±F 61079

Notices Federal Register Vol. 62, No. 220

Friday, November 14, 1997

This section of the FEDERAL REGISTER contact Dr. Andrea Morgan, Senior Staff validity of the methodology and contains documents other than rules or Veterinarian, Animals Program, assumptions used; proposed rules that are applicable to the National Center for Import and Export, (3) Enhance the quality, utility, and public. Notices of hearings and investigations, VS, APHIS, 4700 River Road Unit 39, clarity of the information to be committee meetings, agency decisions and Riverdale, MD 20737–1236, (301) 734– collected; and rulings, delegations of authority, filing of petitions and applications and agency 8068. For copies of more detailed (4) Minimize the burden of the statements of organization and functions are information on the information collection of information on those who examples of documents appearing in this collection, contact Ms. Celeste Sickles, are to respond, through use, as section. APHIS’ Information Collection appropriate, of automated, electronic, Coordinator, at (301) 734–7477. mechanical, and other collection technologies, e.g., permitting electronic SUPPLEMENTARY INFORMATION: DEPARTMENT OF AGRICULTURE submission of responses. Title: Certificate for Poultry and Estimate of burden: The public Animal and Plant Health Inspection Hatching Eggs for Export reporting burden for this collection of Service OMB Number: 0579–0048. information is estimated to average .5 [Docket No. 97±109±1] Expiration Date of Approval: June 30, hours per response. 1998. Respondents: U.S. exporters of Notice of Request for Extension of Type of Request: Extension of poultry and hatching eggs, Federal Approval of an Information Collection approval of an information collection. veterinarians, accredited veterinarians. Abstract: The export of agricultural Estimated number of respondents: AGENCY: Animal and Plant Health commodities, including poultry and 300. Inspection Service, USDA. hatching eggs, is a major business in the Estimated number of responses per ACTION: Extension of approval of an United States and contributes to a respondent: 70. information collection; comment favorable balance of trade. In Estimated annual number of request. accordance with 21 U.S.C. 112 and 113, responses: 21,000. the U.S. Department of Agriculture Estimated total annual burden on SUMMARY: In accordance with the (USDA), Animal and Plant Health respondents: 10,500 hours. Paperwork Reduction Act of 1995, this Inspection Service (APHIS), Veterinary All responses to this notice will be notice announces the Animal and Plant Services (VS), collects information and summarized and included in the request Health Inspection Service’s intention to conducts inspections to ensure that for OMB approval. All comments will request an extension of approval of an poultry and hatching eggs exported from also become a matter of public record. information collection in support of the the United States are free of export of poultry and poultry hatching Done in Washington, DC, this 7th day of communicable diseases. Receiving eggs from the United States. November 1997. countries have specific health Charles Schwalbe, DATES: Comments on this notice must be requirements for poultry and hatching received by January 13, 1998 to be Acting Administrator, Animal and Plant eggs exported from the United States. Health Inspection Service. assured of consideration. Most countries require a certification [FR Doc. 97–29992 Filed 11–13–97; 8:45 am] ADDRESSES: Send comments regarding that our poultry and hatching eggs are the accuracy of burden estimate, ways to disease free. This certification generally BILLING CODE 3410±34±P minimize the burden (such as through must carry the USDA seal and be the use of automated collection endorsed by an APHIS veterinarian. VS DEPARTMENT OF AGRICULTURE techniques or other forms of information Form 17–6, Certificate for Poultry and technology), or any other aspect of this Hatching Eggs for Export, is generally Animal and Plant Health Inspection collection of information to: Docket No. used to meet these requirements. Service 97–109–1, Regulatory Analysis and We are asking the Office of Development, PPD, APHIS, suite 3C03, Management and Budget (OMB) to [Docket No. 97±001±3] 4700 River Road Unit 118, Riverdale, approve the continued use of this Handling, Training, and Exhibition of MD 20737–1238. Please send an original information collection activity. and three copies, and state that your Potentially Dangerous Exotic or Wild The purpose of this notice is to solicit Animals comments refer to Docket 97–109–1. comments from the public (as well as Comments received may be inspected at affected agencies) concerning our AGENCY: Animal and Plant Health USDA, room 1141, South Building, 14th information collection. We need this Inspection Service, USDA. Street and Independence Avenue SW., outside input to help us: ACTION: Notice of reopening and Washington, DC, between 8 a.m. and (1) Evaluate whether the proposed extension of comment period. 4:30 p.m., Monday through Friday, collection of information is necessary except holidays. Persons wishing to for the proper performance of the SUMMARY: We are reopening and inspect comments are requested to call functions of the Agency, including extending the comment period for our ahead on (202) 690–2817 to facilitate whether the information will have notice requesting information entry into the comment reading room. practical utility; concerning what practices are currently FOR FURTHER INFORMATION: For (2) Evaluate the accuracy of our used for handling and training information regarding the Certificate for estimate of the burden of the proposed potentially dangerous exotic or wild Poultry and Hatching Eggs for Export, collection of information, including the animals used in exhibition (such as, but 61080 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices not limited to, elephants, lions, or of exotic or wild animals. We believe COMMITTEE FOR PURCHASE FROM tigers), and what training and this information would be helpful to us PEOPLE WHO ARE BLIND OR experience levels trainers and handlers in obtaining a better understanding of SEVERELY DISABLED of such animals have. This reopening the issues pertaining to the welfare of and extension will provide interested exotic or wild animals used in Procurement List Additions groups and individuals with additional exhibition. AGENCY: Committee for Purchase From time to prepare comments on the People Who Are Blind or Severely request for information. In order that these groups can have time to compile the requested Disabled. DATES: Consideration will be given only information, we are reopening and ACTION: Additions to the Procurement to comments on Docket No. 97–001–1 List. that are received on or before December extending the comment period on Docket No. 97–001–1 to December 12, 12, 1997. SUMMARY: This action adds to the 1997. This action will also allow any ADDRESSES: Please send an original and Procurement List services to be three copies of your comments to other interested groups and individuals furnished by nonprofit agencies Docket No. 97–001–1, Regulatory additional time to prepare and submit employing persons who are blind or Analysis and Development, PPD, comments. have other severe disabilities. APHIS, Suite 3C03, 4700 River Road Authority: 7 U.S.C. 2131–2159; 7 CFR 2.22, EFFECTIVE DATE: December 15, 1997. Unit 118, Riverdale, MD 20737–1238. 2.80, and 371.2(g). ADDRESSES: Committee for Purchase Please state that your comments refer to Done in Washington, DC, this 7th day of From People Who Are Blind or Severely Docket No. 97–001–1. Comments November 1997. Disabled, Crystal Square 3, Suite 403, received may be inspected at USDA, Charles Schwalbe, 1735 Jefferson Davis Highway, room 1141, South Building, 14th Street Arlington, Virginia 22202–3461. and Independence Avenue SW., Acting Administrator, Animal and Plant Health Inspection Service. FOR FURTHER INFORMATION CONTACT: Washington, DC, between 8:00 a.m. and Beverly Milkman (703) 603–7740. 4:30 p.m., Monday through Friday, [FR Doc. 97–29991 Filed 11–13–97; 8:45 am] SUPPLEMENTARY INFORMATION: On July except holidays. Persons wishing to BILLING CODE 3410±34±P 11, August 1, 8, September 5 and 12, inspect comments are requested to call 1997, the Committee for Purchase From ahead on (202) 690–2817 to facilitate People Who Are Blind or Severely entry into the comment reading room. DEPARTMENT OF AGRICULTURE Disabled published notices (62 F.R. FOR FURTHER INFORMATION CONTACT: Mr. Forest Service 37192, 41339, 42745, 46944 and 48050) Stephen Smith, Staff Animal Health of proposed additions to the Technician, Animal Care, APHIS, 4700 Deschutes Provincial Interagency Procurement List. River Road Unit 84, Riverdale, MD Executive Committee (PIEC), Advisory After consideration of the material 20737–1234, (301) 734–7833. Committee presented to it concerning capability of SUPPLEMENTARY INFORMATION: qualified nonprofit agencies to provide the services and impact of the additions Background AGENCY: Forest Service, USDA. on the current or most recent On July 24, 1997, we published in the ACTION: Notice of meeting. contractors, the Committee has Federal Register (62 FR 39802, Docket determined that the services listed No. 97–001–1) a notice requesting SUMMARY: The Deschutes PIEC Advisory below are suitable for procurement by information concerning the training and Committee will meet on December 1, the Federal Government under 41 U.S.C. handling of potentially dangerous wild 1997 at Rock Springs Guest Ranch 7 46–48c and 41 CFR 51–2.4. and exotic animals used in exhibition in miles north of Bend, OR. The meeting I certify that the following action will order to obtain a better understanding of will start at 9:00 a.m. and finish at 5:00 not have a significant impact on a the issues pertaining to their welfare. p.m. Agenda items include: (1) substantial number of small entities. Comments on the request for Completion of comments on the DEIS The major factors considered for this information were required to be documents for the Eastside Ecosystem certification were: received on or before September 22, project, (2) Monitoring Reports, (3) 1. The action will not result in any 1997. On September 22, 1997, we Update on Working Groups (4) Open additional reporting, recordkeeping or published in the Federal Register (62 Public Forum. All Deschutes Province other compliance requirements for small FR 49468–49469, Docket No. 97–001–2) Advisory Committee meetings are open entities other than the small a notice that reopened and extended the to the public. organizations that will furnish the comment period for an additional 45 services to the Government. days, to November 6, 1997. FOR FURTHER INFORMATION CONTACT: 2. The action will not have a severe In the notice requesting information, Mollie Chaudet, Province Liaison, economic impact on current contractors we said we were most interested in USDA, Bend-Fort Rock Ranger District, for the services. receiving information that is in the form 1230 N. E. 3rd, Bend, Oregon 97701, 3. The action will result in of published industry standards, 541–383–4769. authorizing small entities to furnish the published reports in peer-reviewed services to the Government. journals, studies, and objective Sally Collins, 4. There are no known regulatory scientific data. We have been made Deschutes National Forest Supervisor. alternatives which would accomplish aware that several industry associations [FR Doc. 97–29917 Filed 11–13–97; 8:45 am] the objectives of the Javits-Wagner- interested in submitting information BILLING CODE 3410±11±M O’Day Act (41 U.S.C. 46–48c) in have been unable to complete their connection with the services proposed consultation with members of their for addition to the Procurement List. associations in order to compile Accordingly, the following services information on accepted industry are hereby added to the Procurement standards for the handling and training List: Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61081

Central Facility Management (Including procure the services listed below from DEPARTMENT OF COMMERCE Janitorial/Custodial, Grounds nonprofit agencies employing persons Maintenance, Interior Landscaping, who are blind or have other severe Submission for OMB Review; Copier Operation, Mail and disabilities. Comment Request Messenger Service & Shipping/ I certify that the following action will DOC has submitted to the Office of Receiving), U.S. Department of not have a significant impact on a Management and Budget (OMB) for Agriculture, Beltsville Office substantial number of small entities. clearance the following proposal for Complex, 5601 Sunnyside Avenue, The major factors considered for this collection of information under the Beltsville, Maryland certification were: provisions of the Paperwork Reduction Food Service Attendant, Naval Air Act (44 U.S.C. chapter 35). Station, Jacksonville, Florida 1. The action will not result in any Agency: Bureau of Economic Mailroom Operation, National Oceanic additional reporting, recordkeeping or Analysis. and Atmospheric Administration, other compliance requirements for small Title: Survey of Foreign Ocean Western Regional Center & Pacific entities other than the small Carriers’ Expenses in the United Marine Center, Seattle, Washington organizations that will furnish the States—BE–29. Operation of Postal Service Center, services to the Government. Form Number(s): BE–29. Building 337, Goodfellow Air Force 2. The action does not appear to have OMB Approval Number: 0608–0012. Base, Texas a severe economic impact on current Type of Request: Extension—regular Warehouse Operation, 565th contractors for the services. submission. Quartermaster Company, 80th Street, Burden: 620 hours. Fort Hood, Texas. 3. The action will result in Number of Respondents: 155. This action does not affect current authorizing small entities to furnish the services to the Government. Avg Hours Per Response: 4 hours. contracts awarded prior to the effective Needs and Uses: The Bureau of date of this addition or options that may 4. There are no known regulatory Economic Analysis is responsible for be exercised under those contracts. alternatives which would accomplish the computation and publication of the Beverly L. Milkman, the objectives of the Javits-Wagner- U.S. balance of payments accounts. The Executive Director. O’Day Act (41 U.S.C. 46–48c) in information collected in this survey is [FR Doc. 97–30006 Filed 11–13–97; 8:45 am] connection with the services proposed an integral part of the ‘‘transportation’’ BILLING CODE 6353±01±P for addition to the Procurement List. portion of the U.S. balance of payments Comments on this certification are accounts. The balance of payments invited. Commenters should identify the accounts, which are published quarterly COMMITTEE FOR PURCHASE FROM statement(s) underlying the certification in the Bureau’s monthly publication, the PEOPLE WHO ARE BLIND OR on which they are providing additional Survey of Current Business, are one of SEVERELY DISABLED information. the major statistical products of BEA. The following services have been The accounts provide a statistical Procurement List; Proposed Additions proposed for addition to Procurement summary of U.S. international AGENCY: Committee for Purchase From List for production by the nonprofit transactions. They are used by People Who Are Blind or Severely agencies listed: government and private organizations Disabled. for national and international policy HVAC System Filter Maintenance formulation, and analytical studies. ACTION: Proposed Additions to Basewide (less Family Quarters), Fort Sam Without the information collected in Procurement List. Houston, Texas this survey, an integral component of SUMMARY: The Committee has received NPA: Goodwill Industries of San Antonio, the transportation account would be proposals to add to the Procurement List San Antonio, Texas omitted. No other Government agency services to be furnished by nonprofit Janitorial/Custodial collects comprehensive annual data on agencies employing persons who are foreign ocean carriers’ expenses in the Naval Air Reserve, Moffett Field, California United States. blind or have other severe disabilities. NPA: VTF Services, Palo Alto, California COMMENTS MUST BE RECEIVED ON OR Affected Public: U.S. agents of foreign ocean carriers. BEFORE: December 15, 1997. Janitorial/Grounds Maintenance Frequency: Annually. ADDRESSES: Committee for Purchase VA Outpatient Clinic, Griffiss Air Base, Rome, New York Respondent’s Obligation: Mandatory. From People Who Are Blind or Severely Legal Authority: The International Disabled, Crystal Square 3, Suite 403, NPA: The Arc of Oneida County, Inc., Utica, New York Investment and Trade Services Act. 22 1735 Jefferson Davis Highway, U.S.C. 3101–3108. Arlington, Virginia 22202–3461. Kennel Caretaker OMB Desk Officer: Paul Bugg, (202) FOR FURTHER INFORMATION CONTACT: U.S. Customs Service, JFK Airport, Jamaica, 395–3093. Beverly Milkman (703) 603–7740. New York Copies of the above information SUPPLEMENTARY INFORMATION: This NPA: The Corporate Source, Inc., New York, collection proposal can be obtained by notice is published pursuant to 41 New York calling or writing Linda Engelmeier, U.S.C. 47(a)(2) and 41 CFR 51–2.3. Its Laundry Service DOC Forms Clearance Officer, (202) purpose is to provide interested persons 482–3272, Department of Commerce, Naval Amphibious Base, Buildings 302, 303 an opportunity to submit comments on and 505, Coronado, California Room, 5327, 14th and Constitution the possible impact of the proposed NPA: Job Options, Inc., San Diego, California Avenue, NW, Washington, DC 20230. actions. Written comments and If the Committee approves the Beverly L. Milkman, recommendations for the proposed proposed additions, all entities of the Executive Director. information collection should be sent Federal Government (except as [FR Doc. 97–30007 Filed 11–13–97; 8:45 am] within 30 days of this notice to Paul otherwise indicated) will be required to BILLING CODE 6353±01±P Bugg, OMB Desk Officer, Room 10201, 61082 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

New Executive Office Building, DOC Forms Clearance Officer, (202) assurances that the balance of the Washington, DC 20503. 482–3272, Department of Commerce, shipments will not be diverted or used Dated: November 7, 1997. Room, 5327, 14th and Constitution for purposes contrary to the authorized use of the approved license. Linda Engelmeier, Avenue, NW, Washington, DC 20230. Written comments and II. Information Submitted in Writing Departmental Forms Clearance Officer, Office recommendations for the proposed of Management and Organization. information collection should be sent III. Data [FR Doc.97–29999 Filed 11–13–97; 8:45am] within 30 days of this notice to Paul OMB Number: 0694–0051. BILLING CODE: 3610±EA±P Bugg, OMB Desk Officer, Room 10201, Form Number: None. New Executive Office Building, Type of Review: Regular submission Washington, DC 20503. DEPARTMENT OF COMMERCE for extension of a currently approved Dated: November 7, 1997. collection. Submission for OMB Review; Linda Engelmeier, Affected Public: Individuals, Comment Request businesses or other for-profit and not- Departmental Forms Clearance Officer, Office for-profit institutions. of Management and Organization. DOC has submitted to the Office of Estimated Number of Respondents: Management and Budget (OMB) for [FR Doc.97–30000 Filed 11–13–97; 8:45am] 20. clearance the following proposal for BILLING CODE: 3510±06±P Estimated Time Per Response: 1 hour collection of information under the per response. provisions of the Paperwork Reduction Estimated Total Annual Burden DEPARTMENT OF COMMERCE Act (44 U.S.C. chapter 35). Hours: 18. Estimated Total Annual Cost: $200 Agency: Bureau of Economic Bureau of Export Administration Analysis. (no capital expenditures required). Title: Survey of Foreign Airline Application for Transfer of Licenses to IV. Request for Comments Operators’ Revenues and Expenses in Another Party the United States—BE–36. Comments are invited on: (a) Whether Form Number(s): BE–36. ACTION: Proposed collection; comment the proposed collection of information OMB Approval Number: 0608–0013. request. is necessary for the proper performance Type of Request: Extension—regular of the functions of the agency, including SUMMARY: The Department of submission. whether the information shall have Commerce, as part of its continuing Burden: 350 hours. practical utility; (b) the accuracy of the Number of Respondents: 70. effort to reduce paperwork and agency’s estimate of the burden Avg Hours Per Response: 5 hours. respondent burden, invites the general (including hours and cost) of the Needs and Uses: The Bureau of public and other Federal agencies to proposed collection of information; (c) Economic Analysis is responsible for take this opportunity to comment on ways to enhance the quality, utility, and the computation and publication of the proposed and/or continuing information clarity of the information to be U.S. balance of payments accounts. The collections, as required by the collected; and (d) ways to minimize the information collected in this survey is Paperwork Reduction Act of 1995, Pub. burden of the collection of information an integral part of the ‘‘transportation’’ L. 104–13 (44 U.S.C. 3506(c)(2)(A)). on respondents, including through the portion of the U.S. balance of payments DATES: Written comments must be use of automated collection techniques accounts. The balance of payments submitted on or before January 13, 1998. or other forms of information accounts, which are published quarterly ADDRESSES: Direct all written comments technology. in the Bureau’s monthly publication, the to Linda Engelmeier, Departmental Comments submitted in response to Survey of Current Business, are one of Clearance Officer, Department of this notice will be summarized and/or the major statistical products of BEA. Commerce, Room 5327, 14th and included in the request for OMB The accounts provide a statistical Constitution Avenue, NW, Washington, approval of this information collection; summary of U.S. international DC 20230. they will also become a matter of public transactions. They are used by FOR FURTHER INFORMATION CONTACT: record. government and private organizations Requests for additional information or Dated: November 6, 1997. for national and international policy copies of the information collection Linda Engelmeier, formulation, and analytical studies. instrument(s) and instructions should Departmental Forms Clearance Officer, Office Without the information collected in be directed to Stephen Baker, of Management and Organization. this survey, an integral component of Department of Commerce, 14th and [FR Doc. 97–29964 Filed 11–13–97; 8:45 am] Constitution Avenue, NW, room 6877, the transportation account would be BILLING CODE 3510±DT±P omitted. No other Government agency Washington, DC 20230. collects comprehensive annual data on SUPPLEMENTARY INFORMATION: foreign airline operators’ revenues and I. Abstract DEPARTMENT OF COMMERCE expenses in the United States. Affected Public: Foreign air carriers. Certain circumstances such as Bureau of Export Administration Frequency: Annually. company mergers, company takeovers, Respondent’s Obligation: Mandatory. etc., necessitate the transfer of an active One-time Report for Foreign Software Legal Authority: The International export license from one party to or Technology Eligible for De Minimis Investment and Trade Services Act. 22 another. When a licensee transfers an Exclusion U.S.C. 3101–3108. unexpired license to another party, ACTION: Proposed collection; comment OMB Desk Officer: Paul Bugg, (202) there must be assurances that the other request. 395–3093. party, the transferee, will also be Copies of the above information accountable for the proper use of the SUMMARY: The Department of collection proposal can be obtained by license. The required information Commerce, as part of its continuing calling or writing Linda Engelmeier, collected from both parties provides effort to reduce paperwork and Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61083 respondent burden, invites the general agency’s estimate of the burden Amendments Act of 1985 (Public Law public and other Federal agencies to (including hours and cost) of the 99–64), exempts from foreign policy take this opportunity to comment on proposed collection of information; (c) controls exports of donations to meet proposed and/or continuing information ways to enhance the quality, utility, and basic human needs. Previously an collections, as required by the clarity of the information to be exporter had to apply for a bulk Paperwork Reduction Act of 1995, Pub. collected; and (d) ways to minimize the Humanitarian License when wishing to L. 104–13 (44 U.S.C. 3506(c)(2)(A)). burden of the collection of information export goods to restricted countries. DATES: Written comments must be on respondents, including through the Under the current regulations, there is submitted on or before January 13, 1998. use of automated collection techniques license exception procedure which or other forms of information ADDRESSES: Direct all written comments allows exporters to ship humanitarian technology. to Linda Engelmeier, Departmental donations to restricted countries by Comments submitted in response to Clearance Officer, Department of simply maintaining certain records. The this notice will be summarized and/or Commerce, Room 5327, 14th and records can be used for enforcement included in the request for OMB Constitution Avenue, NW, Washington purposes. approval of this information collection; DC 20230. they will also become a matter of public III. Data FOR FURTHER INFORMATION CONTACT: record. Requests for additional information or OMB Number: 0694–0033. Dated: November 7, 1997. copies of the information collection Form Number: None. instrument(s) and instructions should Linda Engelmeier, be directed to Stephen Baker, Departmental Forms Clearance Officer, Office Type of Review: Regular submission Department of Commerce, 14th and of Management and Organization. for extension of a currently approved Constitution Avenue, NW, room 6877, [FR Doc. 97–30001 Filed 11–13–97; 8:45 am] collection. Washington, DC 20230. BILLING CODE 3510±DT±P Affected Public: Individuals, businesses or other for-profit and not- SUPPLEMENTARY INFORMATION: for-profit institutions. I. Abstract DEPARTMENT OF COMMERCE Estimated Number of Respondents: 4. Section 734.4 exempts from the EAR Bureau of Export Administration Estimated Time Per Response: 4 hours reexports of foreign technology per response. commingled with or drawn from License Exception; Humanitarian controlled U.S. origin technology valued Donations Estimated Total Annual Burden at 10% or less of the total value of the Hours: 16. ACTION: foreign technology. However, persons Proposed collection; comment request. Estimated Total Annual Cost: $60 (no must submit a one-time report for the capital expenditures are required). foreign software or technology to BXA SUMMARY: The Department of prior to reliance upon this de minimis Commerce, as part of its continuing IV. Request for Comments exclusion. effort to reduce paperwork and Comments are invited on: (a) Whether II. Method of Collection respondent burden, invites the general the proposed collection of information public and other Federal agencies to is necessary for the proper performance Exporters submit a one-time written take this opportunity to comment on report. of the functions of the agency, including proposed and/or continuing information whether the information shall have collections, as required by the III. Data practical utility; (b) the accuracy of the Paperwork Reduction Act of 1995, agency’s estimate of the burden OMB Number: 0694–0101. Public Law 104–13 (44 U.S.C. (including hours and cost) of the Form Number: None. 3506(c)(2)(A)). Type of Review: Regular submission proposed collection of information; (c) DATES: Written comments must be for extension of a currently approved ways to enhance the quality, utility, and submitted on or before January 13, 1998. collection. clarity of the information to be Affected Public: Individuals, ADDRESSES: Direct all written comments collected; and (d) ways to minimize the businesses or other for-profit and not- to Linda Engelmeier, Departmental burden of the collection of information for-profit institutions. Clearance Officer, Department of on respondents, including through the Estimated Number of Respondents: Commerce, Room 5327, 14th and use of automated collection techniques 10. Constitution Avenue, NW, Washington or other forms of information DC 20230. Estimated Time Per Response: 25 technology. hours. FOR FURTHER INFORMATION CONTACT: Comments submitted in response to Estimated Total Annual Burden Requests for additional information or this notice will be summarized and/or Hours: 250. copies of the information collection included in the request for OMB Estimated Total Annual Cost: $5,000 instrument(s) and instructions should approval of this information collection; (no capital expenditures are required). be directed to Stephen Baker, they will also become a matter of public Department of Commerce, 14th and record. IV. Request for Comments Constitution Avenue, NW, room 6877, Dated: November 7, 1997. Comments are invited on: (a) Whether Washington, DC, 20230. Linda Engelmeier, the proposed collection of information SUPPLEMENTARY INFORMATION: is necessary for the proper performance Departmental Forms Clearance Officer, Office of the functions of the agency, including I. Abstract of Management and Organization. whether the information shall have Section 7(g) of the EAA, as amended [FR Doc. 97–30002 Filed 11–13–97; 8:45 am] practical utility; (b) the accuracy of the by the Export Administration BILLING CODE 3510±DT±P 61084 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

DEPARTMENT OF COMMERCE Register the Preliminary Results of 6. Certain U.S. inventory carrying Administrative Review of the costs have been converted from Rand to International Trade Administration Antidumping Duty Order on Furfuryl U.S. dollars. See Comment 12. Alcohol from the Republic of South [A±791±802] Normal Value (‘‘NV’’) Africa, 62 FR 36488 (‘‘the preliminary Notice of Final Results of Antidumping results’’). We received case and rebuttal We used the same methodology to Duty Administrative Review: Furfuryl briefs from QO Chemicals, Inc (‘‘the calculate NV as that described in the Alcohol From the Republic of South petitioner’’) and ISL on August 7, 1997, preliminary results. Africa and August 26, 1997, respectively. A Analysis of Comments Received public hearing was held on August 28, AGENCY: Import Administration, 1997. In accordance with 19 CFR 353.38, we gave interested parties an opportunity to International Trade Administration, The Department has now completed comment on the preliminary results. We Department of Commerce. this administrative review in received a case brief from the petitioner accordance with section 751 of the Act. SUMMARY: On July 8, 1997, the and a rebuttal brief from ISL (e.g., Department of Commerce published the Scope of the Review ‘‘Petitioner Case Brief’’, ‘‘ISL Rebuttal Brief’’). preliminary results of its administrative The merchandise covered by this review of the antidumping duty order Comment 1: Fictitious Home Market: order is furfuryl alcohol (C4H3OCH2OH). The petitioner argues that the on furfuryl alcohol from the Republic of Furfuryl alcohol is a primary alcohol, South Africa. The review covers Department erred in the preliminary and is colorless or pale yellow in results by not determining that a shipments of this merchandise to the appearance. It is used in the United States during the period fictitious market exists in South Africa manufacture of resins and as a wetting rendering HM sales of furfuryl alcohol December 16, 1994, through May 31, agent and solvent for coating resins, 1996, the period of review. inappropriate as a basis for NV. The nitrocellulose, cellulose acetate, and petitioner contends that the Department Based on our analysis of the other soluble dyes. The product subject comments received, and the correction unlawfully restricted the applicability of to this order is classifiable under the fictitious market provision (section of certain ministerial errors, we have subheading 2932.13.00 of the changed the preliminary results. The 773(a)(2) of the Act) to situations where Harmonized Tariff Schedule of the there is evidence of different final results are listed below in the United States (HTSUS). Although the section ‘‘Final Results of Review.’’ movements in prices at which different HTSUS subheading is provided for forms of the foreign like product are EFFECTIVE DATE: November 14, 1997. convenience and customs purposes, our sold or offered for sale. FOR FURTHER INFORMATION CONTACT: written description of the scope of this Specifically, the petitioner argues that Michelle Frederick or Kris Campbell, proceeding is dispositive. the Department’s restriction of this Office of AD/CVD Enforcement II, Constructed Export Price (‘‘CEP’’) provision to situations involving price Import Administration, International movements of different forms of the Trade Administration, U.S. Department For sales to the United States, we foreign like product is incorrect for the of Commerce, 14th Street and calculated CEP based on the same following reasons. First, the legislative Constitution Avenue, N.W., methodology used in the preliminary history of the 1988 amendment to the Washington, D.C. 20230; telephone: results, with the following exceptions: fictitious market provision (which (202) 482–0186 and (202) 482–3813, 1. We excluded certain sales made of provides that the Department may respectively. furfuryl alcohol which entered the consider ‘‘different movements in prices United States prior to the suspension of SUPPLEMENTARY INFORMATION: at which different forms of the foreign liquidation. See Comment 6. like product are sold or offered for sale’’ Applicable Statute and Regulations 2. We based the calculation of the CEP as evidence of a fictitious market) Unless otherwise indicated, all profit rate on information contained in clearly indicates that this evidence is citations to the Tariff Act of 1930, as ISL’s audited financial statements simply an illustrative example of a amended (‘‘the Act’’), are references to regarding profits made on ‘‘by- fictitious market and does not prevent the provisions effective January 1, 1995, products’’ rather than on the total profit the Department from finding a fictitious the effective date of the amendments figure in the company’s financial market based on other evidence. In this made to the Act by the Uruguay Round statements. See Comment 8. regard, the petitioner cites the Senate Agreement Act (‘‘URAA’’). In addition, 3. We have treated the quality testing Report accompanying this amendment: unless otherwise indicated, all citations expense that ISL incurs upon furfuryl ‘‘The purpose of this provision is to to the Department of Commerce’s (‘‘the alcohol’s arrival in the United States as highlight one particular example of a Department’s’’) regulations are to the a movement expense and not as an fictitious market.’’ S.Rep. No. 71, 100th provisions codified at 19 CFR part 353, indirect selling expense. See Comment Congress., 1st Sess. at 126 (1987) as of April 1, 1996. Where we cite to the 9. (Senate Report) (emphasis petitioner’s). Department’s new regulations (19 CFR 4. We limited the deduction of Second, the petitioner contends that the part 351, 62 FR 27926 (May 19, 1997) indirect expenses incurred in the home Department’s interpretation conflicts (‘‘New Regulations’’) as an indication of market on behalf of U.S. sales to the with PQ Corp v. United States, 652 F. current Department practice, we have so expenses of ISL personnel incurred for Supp. 724, 729 (CIT 1987) (‘‘PQ Corp.’’), stated. travel to the United States. See which, although it predated the 1988 Comment 10. amendment, continues to offer the Background 5. Tank car rental credits gained for proper reading of the general purpose of This review covers one manufacturer/ transporting furfuryl alcohol in the the fictitious market provision as exporter to the United States of the United States are no longer added to concerned with preventing ‘‘parties subject merchandise, Illovo Sugar CEP because the reported tank car rental from manipulating dumping margins by Limited (‘‘ISL’’). On July 8, 1997, the expense is net of such credits. See ** * offering merchandise at a price Department published in the Federal Comment 11. that does not reflect its actual market Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61085 price.’’ Third, the petitioner claims that of sales of ‘‘different forms of the foreign standard. Rather, ISL’s home market the Department’s reasoning renders the like product.’’ See Disc Wheels, 56 FR sales were bona fide transactions provision a nullity in all cases where at 14085 (‘‘[B]efore pursuing a [fictitious involving a significant number of there is only one form of the foreign like market] allegation, the Department must customers made during the course of the product, as in this review. The have sufficient evidence to believe that POR. These customers ordered, petitioner concludes that the there have been different movements in received, and paid for the merchandise Department’s overly restrictive reading the prices at which different forms of in the normal course of business based of the fictitious market provision has the subject merchandise have been sold on prices contained in ISL’s price lists. allowed ISL to manipulate the results of in the home market’’) and Porcelain Further, the total quantity of ISL’s home this review by establishing a fictitious Cookware, 58 FR at 32096 (‘‘In order for market sales was far in excess of the market through severe home market price differences to serve as a basis for viability threshold and in our view price reductions even though the world initiating a fictitious sales inquiry . . . those South African sales must be price for furfuryl alcohol increased the Department must have sufficient considered one of the company’s during the period of review (‘‘POR’’). evidence to believe or suspect that there primary markets. ISL responds that the petitioner’s have been different movements in the Finally, based on the above facts reading of the fictitious market prices at which different forms of the concerning ISL’s home market sales, we provision is overly broad and contends subject merchandise have been sold in disagree with the petitioner’s assertion that the Department should sustain its the home market and that such that the Department is rendering the position in the preliminary results that movements appear to reduce the fictitious market provision a nullity a fictitious market does not exist in the amount by which foreign market value where, as here, there was no other form home market. Citing Tubeless Steel Disc (FMV) exceeds the U.S. price of the of the foreign like product to which a Wheels from Brazil, 56 FR 14083 (April merchandise’’). As we explained in the price comparison can be made. Rather, 5, 1991) (Disc Wheels), Porcelain-on- June 30, 1997, Memorandum, the facts given the facts surrounding ISL’s home Steel Cooking Ware from Mexico, 58 FR that the petitioner presents in support of market sales, we have determined that 32095 (June 8, 1993) (Porcelain its claim, centering around a single the harm that this provision seeks to Cookware), and the Department’s June supplier selling at low prices in the prevent (artificial pricing leading to the 30, 1997, Memorandum, ISL contends home market, do not justify an elimination of a finding of dumping) is that: (a) The Department has always expansion of our practice. not present in this case. As a result, required evidence of price movements Although our position regarding the there is no reason in this proceeding to of different forms of the foreign like petitioner’s claim was stated clearly in go beyond our normal practice of product before pursuing a fictitious that memorandum, we make the determining the existence of a fictitious market allegation; (b) furfuryl alcohol is following additional points regarding market based on a comparison of prices a single, unitary product and there is no the petitioner’s comments as contained of different forms of the foreign like possibility that the prices of different in its case brief. First, given the product. forms of the foreign like product could language in the Senate Report to the Comment 2: Home Market Customer be manipulated to distort the dumping 1988 amendment to the fictitious market Affiliation: The petitioner argues that margin; and (c) contrary to the provision that price movements within ISL is affiliated with its home market petitioner’s interpretation of PQ Corp., a foreign like product are ‘‘one example customers due to its self-described this case stands for the proposition that of a fictitious market,’’ it is possible that status as the only established producer there is no reason to invoke the we may determine in the future that a and seller of furfuryl alcohol in South fictitious market provision absent fact pattern other than price movements Africa. Citing the SAA’s discussion (at evidence that a sale is anything less within a foreign like product constitutes 838) of possible affiliation in the than a bona fide transaction; in this a fictitious market. However, the fact absence of an equity relationship (in case, the viability and reality of the pattern before us, involving a single elaborating on section 771(33)(G) of the transactions is not in dispute. ISL adds respondent that lowered its home Act), the petitioner states that affiliation that the petitioner’s concern with market prices during the POR, is can result from the ability of one reduced home market prices is more insufficient to make such a company ‘‘to exercise restraint or appropriate to a below-cost allegation, determination and, in fact, would direction’’ over another company which the petitioner chose not to file, conflict with a basic tenet of the through a ‘‘close supplier relationships and concludes that a respondent is dumping law were we to do so. As in which the supplier or buyer becomes within its discretion to eliminate price noted in the Timken Remand, a reliant upon the other.’’ discrimination by either raising U.S. respondent may reduce or eliminate In addition, the petitioner commented price, lowering home market price, or dumping either by raising its U.S. prices on the following specific aspects of the doing a combination of the two, citing or by lowering its home market prices Department’s June 30, 1997, Final Results of Redetermination to of merchandise subject to the order. A Memorandum, which provided an Court Remand, The Timken Company v. finding that ISL has created a fictitious analysis of this issue for the preliminary United States, CIT Case No. 94–01– market based solely on ISL’s lowering of results. In this memorandum, the 00008 (December 17, 1996)) (Timken its home market furfuryl alcohol prices Department noted that: (a) ISL’s home Remand). would contradict this basic proposition. market customers appear to be free to DOC Position: We agree with ISL that Second, regarding the petitioner’s purchase furfuryl alcohol from any the record evidence regarding its South argument that CIT’s decision in PQ source willing to offer it; (b) a 10 African sales does not warrant a finding Corp. requires a different result, we percent tariff rate appeared to be the that ISL has established a fictitious agree with the petitioner that the court only barrier to trade facing furfuryl home market. Our general practice in indicated that a fictitious market could alcohol; and (c) that it appears that determining whether a fictitious market exist when the price of merchandise furfuryl alcohol based resins compete exists is to require evidence that the ‘‘does not reflect its actual price.’’ with phenolic resins. decrease in the price of home market However, we disagree that the The petitioner counters these points sales of the foreign like product was information on the record indicates that by arguing that: (a) as stated in the Final accompanied by an increase in the price ISL’s home market sales fail to meet this Results of Antidumping Duty 61086 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

Administrative Review: Certain Welded than Fair Value: Open-End Spun Rayon part on the inapplicability of any of the Stainless Steel Pipe from Taiwan, 62 FR Singles Yarn from Austria, 62 FR 43701 three illustrative examples of particular 37543, 37550 (July 14, 1997), the (August 15, 1997). ISL states that in market situations in the SAA and the Department focuses on actual supplier each case involving this issue, the absence of any model matching relationships, not putative statements petitioner argued that affiliation existed complications. Moreover, the petitioner regarding freedom to purchase from because of a close supplier relationship states that the Department based its other suppliers; (b) the 10 percent tariff between the producer and its customer finding on the position that the facts of is significant given the absence of or supplier, and the Department the case be analyzed more appropriately furfuryl alcohol imports to South Africa declined to find the parties affiliated under the below-cost and fictitious during the POR; (c) there is evidence of because the requisite control market provisions of the Act. barriers to trade such as insignificant relationship did not exist. The petitioner disagrees with this purchasing power, immense DOC Position: We disagree with the finding based on its contention that a transportation distances from foreign petitioner’s contention that ISL is particular market situation does exist in suppliers, insufficient storage for foreign affiliated with all of its home market South Africa due to the absence of bulk shipments, and the possibility of customers. The basis for petitioner’s competitive pricing. It maintains that ISL’s customers’ damaging their claim, the fact that ISL is the only the SAA makes clear that competitive relationship with ISL, the sole domestic manufacturer of furfuryl alcohol in pricing is an important consideration in supplier; and (d) there are in fact no South Africa, is insufficient for a finding assessing the existence of a particular substitutes for furfuryl alcohol in its of affiliation. Further, the petitioner market situation, citing the ‘‘government primary uses. failed to provide any evidence that ISL control over pricing’’ example of a These facts, the petitioner concludes, controls its home market customers. As possible particular market situation demonstrate affiliation between ISL and we stated in the June 30, 1997, listed in the SAA (at 822) (i.e., ‘‘where its home market customers, warranting Memorandum at 8, ‘‘ISL’s dominant there is government control over pricing the rejection of ISL’s home market sales position in the home market is not to such an extent that home market unless they are determined to have been sufficient, in and of itself, to find prices cannot be considered to be made at arm’s length. affiliation between ISL and its competitively set’’). Acknowledging that ISL responds that the Department was customers.’’ We also noted in that the instant proceeding does not involve correct in determining, in its June 30, memorandum that the other primary government control, the petitioner 1997, Memorandum at 8, that the evidence that the petitioner provided to argues that the key element of this petitioner’s allegation that ISL is support its affiliation claim, ISL’s POR example of a particular market situation affiliated with its home market pricing in the home market, ‘‘does not is whether prices are competitively set, customers is ‘‘an overly broad suggest that the company is in a not whether there is government control interpretation of the affiliation via position to exercise restraint or control of prices. In support of its argument, the control provision in section 771(33)(G).’’ over its customers, since customers will petitioner cites Certain Cold-Rolled and According to ISL, the fact that it is the generally seek the lowest price possible Corrosion-Resistant Carbon Steel Flat sole domestic producer of furfuryl from their suppliers.’’ Id. Products from Korea, 62 FR 18404 alcohol in South Africa is not sufficient We also do not accept the petitioner’s (April 15, 1997), where the Department to support a finding of affiliation with allegation that ISL controls its home considered whether pricing practices in its home market customers. Specifically, market customers due to significant an oligopolistic market constituted a ISL argues that: (a) None of the home barriers to trade, an absence of imports particular market situation but market customers is related to ISL by during the POR of the subject ultimately found competitive pricing, ownership; (b) sales are freely merchandise, and no substitutes for and no particular market situation, in negotiated with home market customers furfuryl alcohol in its primary uses. that case. Contrary to the Korean using the company’s price lists; (c) there First, the factors proposed by the oligopoly in question, the petitioner are no long-term sales or agency petitioner would be more relevant to an asserts that ISL is a monopolist and as agreements with home market assertion that ISL is controlling its such, allowed for no price competition customers; (d) all home market customers through high pricing, not low of any type in this case. customers are free to purchase from pricing. Second, while we agree with Regarding the Department’s position abroad; (e) there are no import barriers the petitioner that there was an absence that the facts of the case are more on furfuryl alcohol—the tariff rate on of imports during the POR, the appropriately analyzed under the this product entering South Africa petitioner’s other arguments are fictitious market provision, the before December 1996 was 10 percent speculative (e.g., whether a 10 percent petitioner argues that both the fictitious and zero thereafter; and (f) the tariff is a ‘‘significant’’ barrier to trade). market and particular market situation International Trade Commission’s (ITC) Further, if we were to consider the provisions are applicable because both report notes that while there are no absence of imports as determinative of are intended to preserve the integrity of precise substitutes for furfuryl alcohol affiliation, we would in effect find the Department’s analysis by itself, phenolic resins compete in the affiliation in any sole supplier situation. eliminating inappropriate sales from foundry industry with furfuryl alcohol’s In sum, these factors, whether true or consideration. The petitioner affirms its primary downstream products, furan not, do not indicate that ISL controls its claim that, given a correct resins. Accordingly, ISL contends, there customers. understanding of the facts of this case are no indicia of control. Comment 3: Particular Market and of the particular market situation Finally, ISL notes that the Department Situation in the Home Market: The provision, the Department should has recently considered this issue in a petitioner disagrees with the disregard ISL’s home market sales and number of cases and did not find Department preliminary determination require ISL to submit third country sales affiliation between domestic producers (as detailed in its June 30, 1997, data. of the foreign like product and home Memorandum) that a ‘‘particular market ISL responds that the Department market customers because the requisite situation’’ did not exist in South Africa. should sustain its position in the control did not exist, citing inter alia, Citing this Memorandum, the petitioner preliminary results that a particular Final Determination of Sales at Less first notes that this finding was based in market situation does not exist in the Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61087 home market. In its rebuttal brief (at 8) supplier that has lowered its home meaning, i.e., ‘‘that an agent is to act on ISL interprets Certain Cold-Rolled and market prices, are more appropriately behalf of and for the benefit of the Corrosion-Resistant Steel Flat Product analyzed in the context of the below- principal.’’ Petitioner Brief at 16. Citing, from Korea to mean that ‘‘[t]he fact that cost and fictitious market provisions of inter alia, Waterhout v. Associated Dry there are very few, or even one, the statute. In this regard, the petitioner Goods, Inc., 835 F.2d 718 (8th Cir. producer in a market is not evidence, did not make a below-cost allegation in 1987), the petitioner adds that a second per se, that prices are not competitively this segment of the proceeding and, as tenet of the law of agency is that a set.’’ ISL reiterates its claim, first made discussed above, our analysis of the determination as to the existence of an in Comment 3, above, that there are no petitioner’s claim in the context of a agency relationship is to be based on the import barriers to furfuryl alcohol fictitious market allegation indicates factual circumstances at hand and not entering South Africa and, therefore, that the facts presented by petitioner do on a party’s characterization of itself as foreign producers are free to compete, not warrant such a finding. an agent. just as non-furfuryl alcohol products Comment 4: Whether the The petitioner submits that, in this compete in the foundry industry with Antidumping Duty Reimbursement case, there is no record evidence furfuryl alcohol’s primary downstream Regulation Applies to ISL: ISL argues indicating an agency relationship products. that the Department’s doubling of the between ISL and Harborchem, since ISL ISL further argues that none of the assessment rate in the preliminary merely characterizes Harborchem as its circumstances of particular market results, which was based on the an agent; instead, the evidence shows situations outlined in the SAA are Department’s finding that ISL two distinct commercial transactions: present in this case. Thus, ISL reimbursed its affiliated U.S. importer one in which Harborchem purchases concludes, the petitioner is actually Harborchem, is impermissible because: furfuryl alcohol from ISL and another in arguing for the creation of a new form (1) The reimbursement regulation which Harborchem resells the of particular market situation based on should not apply to affiliated importers; merchandise to a third party. the sole criterion that a foreign producer (2) the reimbursement provision’s focus Specifically, the petitioner states that: has lowered it home market prices. on raising U.S. prices is improper, since (a) ISL negotiates price and quantity Accordingly, ISL, urges the Department the Act itself is not concerned with the with Harborchem; to reject the petitioner’s expansive absolute level of the price at which (b) ISL sells to Harborchem; reading of the Act. subject merchandise is sold in the (c) ISL invoices and receives payment DOC Position: Although we agree United States; and (3) even if the Harborchem; and with the petitioner that the list of reimbursement provision is valid and (d) Harborchem then separately examples in the SAA regarding what can legally be applied to affiliated stores, markets, ships, and receives may constitute a particular market parties, there was no reimbursement of payment for the merchandise. situation is not exhaustive, we disagree actual duties assessed in this case. Thus, the petitioner asserts, that such a finding is warranted under The petitioner disagrees with ISL, Harborchem acts on its own behalf, and the facts of this case. First, we do not stating that: (1) The Department can ISL and Harborchem each seek to agree with the petitioner that the facts apply the reimbursement regulation to maximize profits. Moreover, the of this case are analogous to the affiliated parties; and (2) there is clear petitioner asserts that mere coordination ‘‘government control over pricing’’ evidence in this case that ISL of certain activities for their mutual example in the SAA. In this regard, we reimbursed its U.S. affiliate for AD benefit is not critical in determining an agree with ISL’s interpretation of Cold- duties during the POR, citing the agency relationship. Rolled Steel. In that case, although we Department’s proprietary preliminary ISL responds that it is in fact affiliated considered whether oligopolistic pricing analysis memorandum (Analysis with Harborchem. First, ISL argues that practices might constitute a particular Memorandum to the File, June 30, 1997, the question of relationship was market situation, we ultimately at 2). examined thoroughly in the determined that prices were DOC Position: Since the assessment investigation and at on-site verifications competitively set. In fact, we explicitly rate for this review is zero, there are no of both ISL and Harborchem. Second, found that even though different pricing duties to be assessed. Hence, this issue ISL agrees with the Department’s patterns may occur in an oligopolistic is moot. preliminary finding that the facts market, such patterns are not evidence, Comment 5: Affiliation of ISL and considered by the Department in its per se, sufficient to establish that prices Harborchem: The petitioner argues that original determination are the same as are not competitively set. We conceded ISL and its U.S. importer, Harborchem, those in the current review, namely: that there was substantial Korean are not affiliated parties and, (a) ISL participated directly with government involvement in the accordingly, the Department should Harborchem in the marketing of furfuryl industry, but did not find ‘‘convincing base U.S. price on export price rather alcohol to ultimate U.S. customers; evidence’’ of control (Cold-Rolled Steel, than CEP in the final results. The (b) ISL participated directly in pricing 62 FR at 18412). The Department found petitioner maintains that the and sales negotiations with ultimate that there was price competition based Department’s finding in the original U.S. customers; on discounts, credit adjustments, and investigation that these parties are (c) ISL interacted directly, as well as freight equalization. Similarly, the fact affiliated, on which the Department through Harborchem, with ultimate U.S. pattern in the instant proceeding, subsequently relied in stating that the customers on product testing and involving a large volume of low-priced facts had not changed in this review, quality control; sales of furfuryl alcohol sold to a was incorrect. The petitioner contends (d) ISL and Harborchem significant number of home market that the record demonstrates that communicated on a daily basis on customers from price lists, does not Harborchem is not ISL’s agent under the matters related to marketing and sales to indicate an absence of competitive law of agency or the four-part test the ultimate customers; pricing. originally relied on by the Department. (e) ISL exerted a substantial degree of As we stated in the June 30, 1997, The petitioner states that since the control over Harborchem marketing and Memorandum, the facts as presented by Act does not define the term ‘‘agent,’’ pricing of furfuryl alcohol to the the petitioner, focusing on a single the term must give its common law ultimate U.S. customers; and 61088 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

(f) the two parties viewed their Fair Value: Certain Forged Steel showing Harborchem seeking and relationship as one of principal and Crankshafts from Japan, 52 FR 36984, obtaining ISL’s approval of a purchase agent. 36985 (October 2, 1987). Contrary to the of furfuryl alcohol from alternative As support for its contention that petitioner’s assertions, the information source, were submitted in Exhibit A–23 these facts apply to the POR as well as on the record in this review again of the same response. Therefore, we the period of investigation (POI), ISL indicates that a finding of affiliation continue to find that, based on our four- cites to evidence on the record of this between ISL and Harborchem is prong test, ISL and Harborchem review regarding the correspondence appropriate. maintain an agency relationship and are between Harborchem and ISL on the As noted in our preliminary results, affiliated within the meaning of section setting of U.S. prices, the approval by the facts that led to our finding in the 771(33) of the Act. Consequently, we ISL of any significant sales and LTFV investigation have not changed. have used CEP for sales to the United marketing efforts, and the granting of The petitioner provides no evidence States. permission by ISL on other business that the facts have changed. ISL, on the Comment 6: Exclusion of Certain U.S. decisions. other hand, submitted evidence (at Sales: ISL requests that the Department Regarding the petitioner’s arguments Exhibit A–4 of its September 19, 1996 exclude from its analysis U.S. sales of concerning the nature of an ‘‘agency’’ response) in response to our subject merchandise that entered prior relationship, ISL submits that although questionnaire that indicates that the to suspension of liquidation, which ISL the URAA replaced the definition of agency relationship between ISL and identified using a first-in, first-out ‘‘related party’’ with the definition of Harborchem still exists. For example, (‘‘FIFO’’) inventory accounting ‘‘affiliation’’ based on a ‘‘control’’ this evidence indicates that ISL and methodology. ISL further asserts that concept, Congress did not intend to Harborchem routinely coordinate certain of these sales merit exclusion narrow the criteria it uses for marketing and sales activity, including regardless of the validity of its FIFO determining affiliation, and the pricing, for sales to U.S. customers. analysis, based on the fact that they Department has in fact continued to use Rather than provide evidence that the were shipped prior to the first post- the same criteria for assessing ‘‘control’’ facts have changed during this review suspension entry of merchandise. period, the petitioners are suggesting as was used under the pre-URAA law In the preliminary results, the that these facts are not sufficient for a related party ‘‘agency’’ provision. In this Department rejected ISL’s request, citing respect, ISL cites the post-URAA cases finding of affiliation. We agree with the petitioner that although the Act does not Final Results of Antidumping Duty Melamine from Indonesia and Rayon Administrative Review: Industrial Belts Singles Yarn from Austria, where the define agency, the existence of an agency relationship is based on the and Components and Parts Thereof, Department examined: Whether Cured or Uncured from Italy, (a) Whether one party controlled factual circumstances. The four-pronged 57 FR 8295 (March 9, 1992) (‘‘Industrial pricing of the subject merchandise; test relied upon in the LTFV Belts’’), wherein the Department had (b) Whether a long-term sales investigation explores the factual similarly rejected an exclusion request agreement existed; circumstances of the relationship (c) Whether there were any between ISL and Harborchem. At based on a FIFO inventory analysis. ISL restrictions on purchasing from or verification, based on correspondence states that the preliminary results did selling to other sources; and files, we determined that ISL: (1) not sufficiently explain the (d) Whether there were other indicia participates directly with Harborchem Department’s reasons for denying the of affiliation, such as a joint venture in marketing furfuryl alcohol to U.S. request. ISL contemplates two possible arrangement. customers; (2) participates directly in reasons for this rejection: (a) that the ISL asserts that the facts surrounding pricing and sales negotiations with U.S. Department finds a FIFO matching its relationship with Harborchem meet customers; (3) interacts directly, as well methodology to be inherently this standard. as through Harborchem, with U.S. unacceptable; or (b) that the Department Finally, ISL cites the preamble to the customers on product testing and requires a further explanation regarding New Regulations as proving that, quality control matters; and (4) interacts ISL’s FIFO analysis. because section 771(33) of the statute with U.S. customers directly (Final In arguing against the first reason, ISL refers to a person being in a position to Determination of Sales at LTFV, 60 FR states that Harborchem’s normal exercise restraint or direction, the at 22552–53). In the current review, ISL inventory accounting records use the Department is required to examine the provided additional documentary FIFO methodology employed in its ability to control, not the actual exercise evidence of this relationship consistent exclusion request. ISL also notes that of control (62 FR 27298). ISL concludes with our finding in the LTFV Harborchem uses FIFO to match specific that, based on the facts as stated above, investigation. Proprietary entries and sales as part of its internal the record shows that ISL is in a correspondence documents were cost control and reporting systems to position to exercises restraint over submitted by ISL in its September 1996 ensure proper accounting treatment. ISL Harborchem. response (Exhibit A–4a and b) that contends that since furfuryl alcohol is a DOC Position: We disagree with the demonstrated that: ISL and Harborchem fungible liquid, this is the only petitioner. As both parties note, in the have an exclusive distributor agreement; methodology available for matching pre- less-than-fair-value (LTFV) frequently discuss pricing to U.S. suspension entries to specific POR sales. investigation, we examined this issue in customers; and participate in joint ISL notes that the Department verified depth at verification (see Final marketing efforts. Documents submitted Harborchem’s inventory accounting Determination of Sales at Less Than also show that ISL maintains direct records during the less than fair value Fair Value: Furfuryl Alcohol From contact with U.S. end-user customers investigation. Citing Industrial Quimica South Africa, 60 FR 22550 (May 8, 1995) and exerts control over U.S. marketing del Nalon v. United States, 15 CIT 240, (Final Determination of Sales at LTFV)). efforts. In addition, documentation 243–44 (1991), ISL contends that the Our examination was based on the concerning the arrangement and sharing Department’s rejection of the only criteria for determining an agency of profits between the two parties were methodology available to link entries to relationship as established in Final included in Exhibit A–22 of the April sales would constitute an abuse of the Determination of Sales at Not Less Than 10, 1997, response and documentation Department’s discretion and, in the Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61089 words of the ruling, ‘‘fly in the face of was demonstrated in Industrial Belts, (see the memorandum referenced established business practice.’’ wherein the Department rejected an above). Therefore, the record as a whole Regarding the second possible reason, exclusion request based on a FIFO allowed us to sufficiently link entries to ISL provides in its brief a further inventory analysis. However, we sales and to exclude sales when explanation of the methodology excluded a majority of the sales at issue appropriate. employed in the company’s responses to based not on a FIFO analysis but on the Finally, we note that the petitioner ensure that the analysis is clear to the fact that these sales were shipped before claimed at the public hearing, with Department. In so doing, ISL points to the first post-suspension entry of subject respect to ISL’s counsel’s discussion of worksheets, inventory records, and merchandise. See Memorandum from this issue, that certain information entry and sales data that provide Michelle Frederick and Scott Oudkirk to presented by ISL was not included in its sufficient information to allow the Richard W. Moreland (November 5, hearing briefs. We have determined that Department to tie the sales in question 1997) (‘‘November 5, 1997, ISL’s counsel did not reveal new to pre-suspension entries. Memorandum’’). We have excluded information during the hearing and that Finally, ISL asserts that even if the these sales from our analysis because it it was responding to a question raised Department chooses to reject again ISL’s would not be possible for those sales to by the Department regarding this issue. FIFO methodology, the company is still have been shipped using merchandise The information that ISL’s counsel entitled to the exclusion of certain sales that entered during the POR. referenced was already on the record in from the antidumping analysis. ISL We excluded a second group of sales the form of entry dates, sale dates, notes that the record shows that the first based on a FIFO analysis that involves inventory records and location of shipment of furfuryl alcohol to enter the a single POR entry made prior to these inventory. United States during the POR, i.e., after sales. For these sales, the data contained Comment 7: Level of Trade and CEP suspension, entered the United States in ISL’s response indicates that the Offset: ISL asserts that the Department’s after sales by Harborchem to U.S. company’s storage of inventory involved preliminary determination that the level customers had already been made and the co-mingling of only one POR entry of trade (LOT) at which ISL sold furfuryl delivered during the POR. ISL states of furfuryl alcohol with a pre-existing alcohol in the home market level is not that it is therefore physically impossible inventory of pre-suspension furfuryl more advanced than the LOT of the CEP for those sales to have been made using alcohol. As detailed in the November 5, sales is incorrect because it ignores furfuryl alcohol entered during the POR. 1997, Memorandum, ISL’s inventory, significant selling functions performed The petitioner responds that the sales, and entry data contained in its in the home market. In particular, ISL Department should continue to reject responses establishes that it had states that there is a ‘‘significant ISL’s exclusion request. It argues that sufficient pre-suspension inventory, difference in the level of selling ISL did not sufficiently link POR sales prior to the one POR entry of subject function provided at each LOT.’’ to specific pre-suspension entries merchandise at issue, to cover all but ISL argues that the Department because the company’s receipt and one of the second group of sales for ignored the level or degree of selling inventory records are inconsistent and which ISL requested the exclusion. To activities that ISL performed with unreliable, as demonstrated by certain the extent that we attribute the respect to home market versus U.S. discrepancies on the record. merchandise involved in such sales to sales, as well as the corresponding Specifically, the petitioner notes that this pre-suspension inventory, rather greater amounts of time and energy ISL, in its April 10, 1997, supplemental than to the single POR entry that spent performing these activities in response, conceded that it made two occurred prior to these sales, this conducting home market sales. Further, mistakes in reporting its inventory in its analysis is based on a FIFO ISL stated that, whereas ISL itself initial response. The petitioner asserts methodology. However, given that the undertook all of these activities in that this unreliability, together with fact pattern involves only a single POR conducting home market sales, it merely ‘‘the Department’s justifiable reluctance entry occurring prior to these sales, supported Harborchem, which was to use hypothetical constructions to link along with the fact that this is a unitary principally responsible for marketing U.S. sales to specific pre-suspension liquid product, it is appropriate under and selling activities in the United entries,’’ necessitates the Department’s these circumstances to determine that States. For this reason, ISL claims that continued rejection of the request. these sales involved pre-suspension the degree of the selling functions it DOC Position: We agree with ISL, in merchandise. We note that, in the provides to home market customers is part. As discussed below, all but one of unique circumstances of this case, the greater than that of those provided for the POR sales that ISL requested be respondent was able to provide Harborchem such that the home market excluded are not appropriately part of supporting documentation regarding LOT is more advanced than the LOT of our analysis because they involve entry and sales data not only for the the CEP. In support of this claim, ISL merchandise that entered the United claimed exclusions, but also for the compared the number of customers, the States prior to the suspension of remainder of the South African-sourced number of shipments, and the liquidation. See Certain Stainless Steel POR sales. individual shipment sizes in the home Wire Rod from France, 61 FR 47874, Finally, we have not excluded one market to shipments to Harborchem, 47875 (September 11, 1996). sale (the final chronological sale in the noting that ‘‘[t]he average size of a Accordingly, we have not included second group) because the inventory of shipment to Harborchem was over 30 these sales in our calculation of ISL’s pre-suspension furfuryl alcohol was times as large as a shipment in the home antidumping duty rate for this POR. insufficient to cover this sale. market.’’ Therefore, ISL claims it is However, we have included one such Regarding the petitioner’s contention entitled to a CEP offset. sale in our analysis because it cannot be that ISL’s inventory records are The petitioner responds that the tied to pre-suspension merchandise. inconsistent and unreliable, we found Department did not ignore specific We note that the petitioner is correct that an examination of the evidence on selling functions in the home market in pointing out the Department’s the record demonstrates that any but, rather, determined that the selling reluctance to use hypothetical inconsistencies are relatively minor and functions performed by ISL for sales in constructions to link U.S. sales to that the mistakes reported by ISL were the home market did not differ specific pre-suspension entries. This corrected in supplemental responses substantially from those performed by 61090 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

ISL for sales to Harborchem. The home market LOT did not constitute a reconciliations, and adjustments made petitioner adds that ISL exaggerates the more advanced stage of distribution only at year-end. Therefore, the differences between the number of than the LOT of the CEP and, therefore, Department should continue to use the customers and shipments in the home no adjustment to price (i.e., LOT information contained in the audited market compared with those to adjustment or CEP offset) was necessary. financial statements in its calculation of Harborchem. Finally, the petitioner We explained, in detail, in the a CEP profit ratio for the final results. notes that ISL’s contention in its case preliminary results our rationale for DOC Position: We agree with the brief that the company plays a making this determination. 62 FR petitioner in part. Section supporting, non-principal role for U.S. 36488, 36490 (July 8, 1997). ISL’s 772(f)(2)(C)(iii) of the Act provides that, sales is at variance with earlier arguments in its case brief do not absent more specific data related to statements made in support of ISL’s establish that our analysis in the expenses incurred in selling subject claim of affiliation with Harborchem, preliminary results was incorrect. merchandise in the United States or i.e., that ISL plays a joint role with We disagree with ISL’s argument that home market, the expenses used in the Harborchem in the U.S. market. we ignored the level or degree of selling profit calculation should be based on DOC Position: We disagree with ISL. functions performed in the home ‘‘the narrowest category of merchandise We have continued to find that a CEP market. While it is our preference to sold in all countries which includes the offset is inappropriate because the examine selling functions on both a subject merchandise.’’ In this review, record evidence indicates that ISL’s qualitative and a quantitative basis, our there is information on the record that home market sales are not made at a examination is not contingent on the would allow the Department to base the more advanced LOT than that of the number of customers nor on the number calculation of a CEP profit ratio on a CEP. of sales for which the activity is more narrow category of merchandise Section 773(a)(7) of the Act provides performed. than that covered by ISL’s overall profit that one requirement for granting a CEP Thus, having determined that the LOT amount for all products sold by the offset is that the home market sale must for home market sales is comparable to company. However, contrary to be made at a more advanced stage of the LOT of the CEP, we are precluded petitioner’s assertions, the audited distribution than the LOT of the CEP. In in this case from granting a CEP offset. financial statements contain profit data order to determine whether home Comment 8: Basis for the Calculation on a product basis (i.e. by-products) that market sales were at the same, or a of CEP Profit: The petitioner argues that is sufficiently narrow to fulfill the different, LOT than U.S. sales, we the Department’s calculation of CEP statutory requirements regarding CEP examined whether home market sales profit understates the amount of profit profit. had been made at a different stage in the that should be deducted from CEP. In Instead of relying on the internal marketing process. Section 351.412(c)(2) the preliminary results, the Department report, we were able to derive a more of the new regulations defines an LOT relied upon revenue and cost of sales appropriate CEP profit ratio from the as a marketing stage ‘‘or the equivalent’’ data from ISL’s 1995 and first-half 1996 audited financial statements, thus and provides that different LOTs financial statements to calculate a profit meeting our obligation to rely on depend on one level (or stage) being ratio. The figures in those financial information for the ‘‘narrowest category more remote, characterized by an statements are representative of all ISL of merchandise.’’ We were able to additional layer of selling activities, products. The petitioner cites the SAA discern from the audited financial amounting in the aggregate to a (at 824–825, regarding section statements the relative amount of profit substantially different selling function. 772(f)(2)(C) of the Act) for the due to the sale of sugar, ISL’s primary Substantial differences in the amount of proposition that, where the Department merchandise, and the profit due to the selling expenses associated with two has not requested cost data, CEP profit sales of by-products, which includes the groups of sales also may indicate that information shall be based on ‘‘the subject merchandise sold. Thus, we the two groups are at different LOTs. narrowest category of merchandise sold revised the CEP profit ratio for the final Accordingly, as a threshold matter in in the United States and the exporting results based on information from examining whether home market sales country which includes the subject audited financial statements. (See were made at a more advanced LOT merchandise or * * * the narrowest Analysis Memorandum to File, than the LOT of the CEP, we considered category of merchandise sold in all November 5, 1997.) the selling activities performed for the countries which includes the subject We note that, given the statutory home market LOT and compared them merchandise.’’ The petitioner contends preference for profit based on a narrow to the selling activities performed for that there is information on the record, category of merchandise, the use of the LOT of the CEP. Specifically, we in the form of an internal report, that internal financial reports may be examined the selling activities would allow the Department to base the appropriate where we do not otherwise performed by ISL for setting up, calculation of a CEP profit ratio on a have sufficiently tailored profit data. shipping, and delivering furfuryl more narrow category of merchandise, The preamble of the proposed alcohol destined for the U.S. market up e.g. excluding sugar, than that contained regulations at 61 FR 7308, 7332 to the point of tank storage at the U.S. in ISL’s financial statements. (February 27, 1996), reflects this, stating port of entry (selling activities reflected ISL argues that the financial ‘‘[p]aragraph (d)(2) [of section 351.402] in the price after the deduction of statements on which the Department specifies that the Department will not be expenses and profit under section relied in its calculation of profit are limited to audited financial statements, 772(d) of the Act). Next, we compared audited and, given the Department’s but may use any appropriate financial the selling activities performed by ISL normal reliance on audited or published report, including internal reports, the for home market sales. data, are the proper basis for the accuracy of which can be verified, if In the preliminary results, we calculation of a CEP profit ratio. ISL verification is conducted. This determined that there was one LOT in notes that the information that the provision reflects the suggestion of the home market and, furthermore, that petitioner advocates is found in an commentators that the Department make the LOT for home market sales was unverified internal report used to report clear its discretion to use financial comparable to the LOT of the CEP. In gross sales and profit figures. As such, reports prepared in the normal course of other words, we determined that the it does not take account of reversals, business that are as specific as possible Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61091 to the merchandise under investigation the expenses ISL personnel incurred for expense, which is expressed in rand, to or review.’’ travel to the United States to market U.S. dollars. Comment 9: Inclusion of Quality furfuryl alcohol are indirect selling The petitioner did not comment on Testing Expenses in the Calculation of expenses incurred in the United States. this issue. CEP Profit: The petitioner notes that the As such, they should be deducted from DOC Position: We agree with ISL. Department determined that the U.S. price when calculating CEP and This expense was expressed in rand expense ISL incurs for the quality should be included in the total U.S. because the inventory value used in the testing of furfuryl alcohol upon its selling expenses used to derive profit calculation of this inventory carrying arrival in the United States is an attributable to those expenses. cost was the total cost of manufacture in indirect selling expense. The ISL contends that the expenses in rand. Accordingly, we have converted Department therefore made a question are already included in the this to U.S. dollars. circumstance of sale adjustment to CEP South African component of U.S. for the preliminary results, but the indirect selling expenses, given that Final Results of Review petitioner contends that this quality most of the expenses associated with As a result of our review, we testing expense should also be included U.S. travel of ISL personnel, such as determine that the following margin as part of total selling expenses for the airfare and salaries, were incurred and exists for the period of December 16, calculation of CEP profit. paid for in the home market. Therefore, 1994, through May 31, 1996: ISL argues that this expense is a it would be incorrect for the Department movement expense undertaken solely to deduct these expenses once again. Manufacturer/exporter Margin for U.S. sales insurance purposes DOC Position: We agree with ISL that (percent) because of the possibility of the expenses ISL personnel incurred for contamination during shipment and travel to the United States to market Illovo Sugar Ltd ...... 0.00 because the U.S. Customs periodically furfuryl alcohol are included in the requires purity reports. Therefore, ISL South African component of U.S. The results of this review shall be the argues that this expense is not an indirect selling expenses (DINDIRSU). basis for the assessment of antidumping indirect selling expense and, as a As such, for the preliminary results, duties on entries of merchandise movement expense, should not be they had already been deducted from covered by the review and for future included as part of selling expenses U.S. price when calculating CEP. deposits of estimated duties for the when calculating CEP profit. We do not deduct indirect selling manufacturer/exporter subject to this DOC Position: We agree with ISL that expenses incurred in the home market review. The Department will issue the quality testing expense that the on behalf of U.S. sales, except when appraisement instructions directly to company incurs upon furfuryl alcohol’s such expenses are associated with the U.S. Customs Service. arrival in the United States is a economic activity in the United States. Furthermore, the following deposit movement expense undertaken solely The expenses of ISL personnel incurred requirements will be effective for all for U.S. sales as a result of shipment for travel to the United States are shipments of the subject merchandise from South Africa. We note ISL’s associated with economic activity in the entered, or withdrawn from warehouse, description at page 84 of its September United States. Therefore, for these final for consumption on or after the 19, 1996, response, that, ‘‘Furfuryl results, we segregated the expenses of publication date of these final results of alcohol is tested on arrival to detect any ISL personnel incurred for travel to the this administrative review, as provided impurities that may have entered the United States from all other indirect by section 751(a)(2)(C) of the Act: (1) product while in transit * * * [t]he expenses incurred in the home market The cash deposit rate for ISL is zero; (2) testing is performed * * * at the time on behalf of U.S. sales, and deducted if the exporter is not a firm covered in the product is unloaded from the only those travel expenses from CEP. this review or the original investigation, maritime vessel.’’ We also note that See Final Results and Partial Rescission but the manufacturer is, the cash there is no similar testing done for of Antidumping Duty Administrative deposit rate will be the rate established shipments in the home market; all semi- Review; Certain Fresh Cut Flowers from for the most recent period for the bulk sales of furfuryl alcohol in the Colombia, 62 FR 53287, 53293 (October manufacturer of the merchandise; and home market are made f.o.b., so there is 14, 1997) (‘‘selling expenses incurred in (3) if neither the exporter nor the no chance of contamination that will the home market that are not associated manufacturer is a firm covered in this or result in a loss to the company and with U.S. economic activity should any previous review or the original though drum sales are sometimes made neither be deducted from CEP nor investigation, the cash deposit rate will on a c.i.f. basis, it is not subject to included in the basis for calculating CEP be the ‘‘all others’’ rate of 11.55 percent contamination because it is packed. profit’’). established in the less than fair value Because contamination only results Comment 11: Addition of Tank Car investigation (60 FR 28840, June 21, from transporting furfuryl alcohol via a Rental Credits to CEP: The petitioner 1995). These deposit requirements will shipping vessel, which carries many claims that the U.S. tank car rental remain in effect until publication of the other different products, not just expense is reported net of credits. final results of the next administrative furfuryl alcohol, we have determined Therefore, tank car rental credits should review. that the quality testing expense is not be added to CEP. This notice also serves as a final associated with the type of ISL concedes the petitioner’s claim. reminder to importers of their transportation, and, thus, is a movement DOC Position: We agree that the U.S. responsibility under 19 CFR 353.26 to expense. Accordingly, we have changed tank car rental expense reported is net file a certificate regarding the the margin calculation to treat this of credits for tank car utilization. reimbursement of antidumping duties expense as a movement expense, which Therefore, we have deducted these prior to liquidation of the relevant is not included in total U.S. expenses in expenses from CEP. entries during this review period. the calculation of CEP profit. Comment 12: Conversion of Certain Failure to comply with this requirement Comment 10: Treatment of ISL U.S. Inventory Carrying Cost Expenses: ISL could result in the Secretary’s Travel Expenses in the Margin contends that the Department failed to presumption that reimbursement of Calculation: The petitioner claims that convert the U.S. inventory carrying cost antidumping duties occurred and the 61092 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices subsequent assessment of double educational purposes in the course DATES: Comments and information must antidumping duties. FPE580F. Special Problems: Fire be received no later than December 15, This notice is the only reminder to Science Laboratory providing overall 1997. parties subject to administrative instruction and hands-on experience ADDRESSES: Comments on this protective order (‘‘APO’’) of their with fire science related experimental application should be addressed to responsibility concerning the measurement techniques. Application Michael Payne, Chief, Marine Mammal disposition of proprietary information accepted by Commissioner of Customs: Division, Office of Protected Resources, disclosed under APO in accordance October 23, 1997. NMFS, 1315 East-West Highway, Silver with 19 CFR 353.34(d)(1). Timely Docket Number: 97–090. Applicant: Spring, MD 20910. A copy of this written notification of the return or University of Minnesota, Department of application, previous documentation destruction of APO materials, or Psychology, N218 Elliott Hall, 75 East and Federal Register notices on this conversion to judicial protective order is River Road, Minneapolis, MN 55455. action may be obtained by writing to hereby requested. Failure to comply is Instrument: Visual Stimulus Generator, this address or by telephoning the a violation of the APO. Model VSG2/3S. Manufacturer: contact listed below. This administrative review and notice Cambridge Research Systems Ltd., FOR FURTHER INFORMATION CONTACT: are in accordance with section 751(a) of United Kingdom. Intended Use: The Kenneth Hollingshead, Office of the Act and 19 CFR 353.22, and this instrument will be used to investigate Protected Resources at 301–713–2055, notice is published in accordance with the sensory limitations on letter or Irma Lagomarsino, Southwest section 777(i) of the Act. recognition which involves measuring Regional Office at 562–980–4016. the spatio temporal properties of letter Dated: November 5, 1997. SUPPLEMENTARY INFORMATION: Robert S. LaRussa, recognition across the human visual Assistant Secretary for Import field. The experiments will tell the size Background Administration. of the visual span (the number of letters Section 101(a)(5)(A) of the MMPA (16 [FR Doc. 97–29958 Filed 11–13–97; 8:45 am] that can be recognized in a single U.S.C. 1361 et seq.) directs the Secretary fixation) for different print sizes, BILLING CODE 3510±25±P of Commerce to allow, upon request, the contrasts and fixation duration. This incidental, but not intentional, taking of data will test models that relate letter marine mammals by U.S. citizens who DEPARTMENT OF COMMERCE recognition to reading. Application engage in a specified activity (other than accepted by Commissioner of Customs: commercial fishing) within a specified International Trade Administration October 23, 1997. geographical region if certain findings Frank W. Creel, are made and regulations are issued. Applications for Duty-Free Entry of Director, Statutory Import Programs Staff. Scientific Instruments Permission may be granted if NMFS [FR Doc. 97–29957 Filed 11–13–97; 8:45 am] finds that the taking will have a Pursuant to Section 6(c) of the BILLING CODE 3510±DS±P negligible impact on the species or Educational, Scientific and Cultural stock(s); will not have an unmitigable Materials Importation Act of 1966 (Pub. adverse impact on the availability of the L. 89–651; 80 Stat. 897; 15 CFR part DEPARTMENT OF COMMERCE species or stock(s) for subsistence uses; 301), we invite comments on the and the permissible methods of taking question of whether instruments of National Oceanic and Atmospheric and requirements pertaining to the equivalent scientific value, for the Administration monitoring and reporting of such taking purposes for which the instruments are set forth. NMFS has defined [I.D. 093097E] shown below are intended to be used, ‘‘negligible impact’’ in 50 CFR 216.103 are being manufactured in the United Small Takes of Marine Mammals as ‘‘ * * *an impact resulting from the States. Incidental to Specified Activities; specified activity that cannot be Comments must comply with 15 CFR Space Launch Vehicles at Vandenberg reasonably expected to, and is not 301.5(a)(3) and (4) of the regulations and Air Force Base, CA reasonably likely to, adversely affect the be filed within 20 days with the species or stock through effects on Statutory Import Programs Staff, U.S. AGENCY: National Marine Fisheries annual rates of recruitment or survival.’’ Department of Commerce, Washington, Service (NMFS), National Oceanic and Subsection 101(a)(5)(D) of the MMPA D.C. 20230. Applications may be Atmospheric Administration (NOAA), established an expedited process by examined between 8:30 A.M. and 5:00 Commerce. which U.S. citizens can apply for an P.M. in Room 4211, U.S. Department of ACTION: Notice of receipt of applications authorization to incidentally take small Commerce, 14th Street and Constitution and proposed authorizations for small numbers of marine mammals by Avenue, N.W., Washington, D.C. take exemptions; request for comments. harassment for a period of up to one Docket Number: 97–089. Applicant: year. The MMPA defines ‘‘harassment’’ Worcester Polytechnic Institute, 100 SUMMARY: NMFS has received a request as: Institute Road, Worcester, MA 01609. from the U.S. Air Force for continuation ...any act of pursuit, torment, or annoyance Instrument: Fire Modeling Research of incidental harassment authorizations which (a) has the potential to injure a marine Apparatus. Manufacturer: Fire Testing to take small numbers of marine mammal or marine mammal stock in the Technology Ltd., United Kingdom. mammals incidental to launches of wild; or (b) has the potential to disturb a Intended Use: The instrument will be Delta II, Titan II, Titan IV, and Taurus marine mammal or marine mammal stock in used to determine certain fire properties launch vehicles at Vandenberg Air the wild by causing disruption of behavioral from a particular substance, object or Force Base, CA (Vandenberg). Under the patterns, including, but not limited to, material—sometimes testing each type Marine Mammal Protection Act migration, breathing, nursing, breeding, of material present in a composite then (MMPA), NMFS is requesting comments feeding, or sheltering. calculating experimental values if the on its proposal to continue to authorize New subsection 101(a)(5)(D) materials were burned together. In these takings (limited to harassment), establishes a 45-day time limit for addition, the instrument will be used for for a period not to exceed 1 year. NMFS review of an application Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61093 followed by a 30-day public notice and documents for the appropriate Dated: November 6, 1997. comment period on any proposed discussion. These documents are Hilda Diaz-Soltero, authorizations for the incidental available from NMFS (see ADDRESSES) Director, Office of Protected Resources, harassment of small numbers of marine As a result of the noise associated National Marine Fisheries Service. mammals. Within 45 days of the close with launches and the sonic boom [FR Doc. 97–29936 Filed 11–13–97; 8:45 am] of the comment period, NMFS must resulting from some launch vehicles at BILLING CODE 3510±22±F either issue or deny issuance of the certain trajectories, there is a potential authorization. to cause a startle response to those seals and sea lions that haul out on the DEPARTMENT OF COMMERCE Summary of Request coastline of Vandenberg and on the NCI. On October 7, 1997, NMFS received The effect on the above listed seals and National Oceanic and Atmospheric an application from the U.S. Air Force, sea lions would be anticipated to result Administration Vandenberg, requesting continuation of in a negligible short-term impact to [I.D. 110697A] an authorization for the harassment of small numbers of seals and sea lions small numbers of seals and sea lions that are hauled out at the time of a Marine Mammals; Scientific Research incidental to launches of Delta II, Titan launch. No impacts are anticipated to Permit (PHF# 875±1401) II, Titan IV, and Taurus launch vehicles animals that are in the water at the time at Vandenberg. This application of launch. Detailed descriptions of the AGENCY: National Marine Fisheries incorporates by reference the expected impact from rocket launches Service (NMFS), National Oceanic and information contained in applications on harbor seals and other marine Atmospheric Administration (NOAA), provided last year for these rocket mammals have been provided in the Commerce. launches. These applications (Titan II above referenced Federal Register ACTION: Receipt of application for and IV-January 24, 1996, Delta II-July notices and are not repeated here. amendment. 17, 1996, Taurus-August 14, 1996) are available upon request (see ADDRESSES). Conclusions SUMMARY: Notice is hereby given that Dr. NMFS has received a petition for Based upon information provided by Christopher W. Clark, Cornell regulations and an application for a the applicant, and previous reviews of University, Ithaca, New York 14850, has small take authorization under section the incidental take of seals and sea lions requested an amendment to Permit No. 101(a)(5)(A) of the MMPA. If by this activity, NMFS believes that the 875–1401. implemented, this rulemaking will short-term impact of the rocket launches DATES: Written comments must be replace these 1-year authorizations, at Vandenberg is expected to result at received on or before December 14, along with another issued previously for worst, in a temporary reduction in 1997. Lockheed launch vehicles (62 FR 40335, utilization of the haulout as seals and/ ADDRESSES: July 28, 1997) with a 5-year regulatory The application for or sea lions leave the beach for the amendment and related documents, program, governing incidental takes of safety of the water. The launching is not marine mammals by launches of all including a draft environmental expected to result in any reduction in assessment (EA) that examines the rocket and missile types from the number of seals or sea lions, and Vandenberg. This petition is published environmental consequences of issuing they are expected to continue to occupy the requested amended permit, are elsewhere in this issue of the Federal the same area. In addition, there will not Register. available for review upon written be any impact on the habitat itself. request or by appointment in the Description of Marine Mammals and Based upon studies conducted for following office(s): Potential Effects of Launches on Marine previous space vehicle launches at Permits Division, Office of Protected Mammals Vandenberg, significant long-term Resources, NMFS, 1315 East-West impacts on seals and sea lions at Highway, Room 13705, Silver Spring, The marine mammal species Vandenberg are unlikely. anticipated to be incidentally harassed MD 20910 (301/713–2289); and by launches from Vandenberg are harbor Proposed Authorization Regional Administrator, Southwest seals (Phoca vitulina), California sea NMFS proposes to issue individual Region, 501 West Ocean Boulevard, lions (Zalophus californianus), northern incidental harassment authorizations for Suite 4200, Long Beach, CA 90802-4213 elephant seals (Mirounga angustirostris), a period of time not to exceed 1 year for (562/980-4001). northern fur seals (Callorhinus ursinus) launches of Delta II, Titan II, Titan IV, Written data or views, or requests for and possibly Guadalupe fur seals and Taurus launch vehicles at a public hearing on this request, should (Arctocephalus townsendi) in the Vandenberg provided the monitoring be submitted to the Director, Office of vicinity of Vandenberg and on the and reporting requirements currently in Protected Resources, NMFS, 1315 East- Northern Channel Islands (NCI). In effect are continued. NMFS has West Highway, Room 13130, Silver conjunction with publication of the preliminarily determined that the Spring, MD 20910. Those individuals previous application notices for launch proposed launches of these launch requesting a hearing should set forth the activities, a description of the Southern vehicles at Vandenberg would result in specific reasons why a hearing on this California Bight population of seals and the harassment taking of only small application would be appropriate. sea lions and the potential impacts from numbers of seals and sea lions, and will Concurrent with the publication of rocket launches on these species and have no more than a negligible impact this notice in the Federal Register, stocks was provided on August 18, 1995 on the species and stocks of marine NMFS is forwarding copies of this (60 FR 43120), and August 29, 1996 (61 mammals. application for amendment to the FR 45404), for Delta II authorizations, Marine Mammal Commission and its September 25, 1996 (61 FR 50276), for Information Solicited Committee of Scientific Advisors. Taurus rocket authorization, and March NMFS requests interested persons to SUPPLEMENTARY INFORMATION: The 15, 1996 (61 FR 10727), for Titan II and submit comments, information, and subject amendment to permit no. 875– IV authorizations. Interested reviewers suggestions concerning this request (see 1401 is requested under the authority of are encouraged to refer to those ADDRESSES). the Marine Mammal Protection Act of 61094 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

1972, as amended (16 U.S.C. 1361 et SUMMARY: Pursuant to the Federal Gaithersburg, Maryland, 20899. It would seq.), the Regulations Governing the Advisory Committee Act, 5 U.S.C. App., be appreciated if sixty copies could be Taking and Importing of Marine notice is hereby given that the Technical submitted for distribution to the Mammals (50 CFR part 216), the Advisory Committee to Develop a Committee and other meeting attendees. Endangered Species Act of 1973, as Federal Information Processing 3. Additional information regarding amended (16 U.S.C. 1531 et seq.), and Standard for the Federal Key the Committee is available at its world the regulations governing the taking, Management Infrastructure will hold a wide web homepage at: http:// importing, and exporting of endangered meeting on December 17–18, 1997. The csrc.nist.gov/tacdfipsfkmi/ . fish and wildlife (50 CFR part 222.23). Technical Advisory Committee to 4. Should this meeting be canceled, a Permit No. 875–1401 currently Develop a Federal Information notice to that effect will be published in authorizes the harassment of several Processing Standard for the Federal Key the Federal Register and a similar species of marine mammals during the Management Infrastructure was notice placed on the Committee’s conduct of research to study the effects established by the Secretary of electronic homepage. of low-frequency sound produced by the Commerce to provide industry advice to Dated: November 5, 1997. Navy’s Surface Towed Array the Department on encryption key Mark Bohannon, Surveillance System Low Frequency recovery for use by federal government Chief Counsel for Technology Active (SURTASS LFA) system on the agencies. All sessions will be open to Administation. behavior of blue whales (Balaenoptera the public. [FR Doc. 97–29955 Filed 11–13–97; 8:45 am] musculus) and fin whales (Balaenoptera DATES: The meeting will be held on physalus) feeding in the Southern December 17–18, 1997 from 9 a.m. to 6 BILLING CODE 3510±CN±P California Bight during September/ p.m. October of 1997 and/or 1998. The ADDRESSES: The meeting will take place permit holder is now requesting that the CONSUMER PRODUCT SAFETY at the Hotel Inter-Continental, 444 St. COMMISSION Permit be amended to provide for: 1) the Charles Street, New Orleans LA. conduct of playback experiments using FOR FURTHER INFORMATION CONTACT: Agency Information Collection a SURTASS LFA sound source to study Edward Roback, Committee Secretary Activities Under OMB Review; behavioral responses of gray whales and Designated Federal Official, Cellulose Insulation (Eschrichtius robustus) to SURTASS Computer Security Division, National LFA signals and related stimuli; and 2) Institute of Standards and Technology, AGENCY: Consumer Product Safety radio tagging via suction cup attachment Building 820, Room 426, Gaithersburg, Commission (CPSC). of up to 14 gray whales. Individuals of Maryland, 20899; telephone 301–975– ACTION: Notice. several other species of cetaceans, 3696. Please do not call the conference SUMMARY: In compliance with the pinnipeds, and possibly sea turtles, may facility regarding details of this meeting. be taken (i.e., by harassment or auditory Paperwork Reduction Act, (44 U.S.C. temporary threshold shift) incidentally SUPPLEMENTARY INFORMATION: 3501 et seq.) this notice announces that the CPSC has submitted to the Office of during the proposed experiments. 1. Agenda In compliance with the National Management and Budget (OMB) a Environmental Policy Act of 1969 (42 Opening Remarks request for extension of approval U.S.C. 4321 et seq.), a draft EA Chairperson’s Remarks through November 30, 2000, of current examining the environmental News Updates (Members, Federal collection of information requirements consequences of issuing the requested Liaisons, Secretariat) regarding testing of cellulose insulation. Working Group (WG) Reports These requirements are set forth in 16 amended permit has been prepared. Intellectual Property Issues (as Based upon this draft EA, NMFS has CFR Part 1209, Amended Interim Safety necessary) Standard for Cellulose Insulation, which preliminarily concluded that issuance of Public Participation prescribes requirements for the requested permit will not have a Plans for Next Meeting significant effect on the human Closing Remarks flammability and corrosiveness of cellulose insulation produced for sale to environment. Note that the items in this agenda are or use by consumers. The standard Dated: November 6, 1997. tentative and subject to change due to requires manufacturers, private labelers, Ann D. Terbush, logistics and speaker availability. and importers of cellulose insulation to Chief, Permits and Documentation Division, 2. Public Participation test insulation for resistance to Office of Protected Resources, National smoldering and small open-flame Marine Fisheries Service. The Committee meeting will include a period of time, not to exceed thirty ignition, and for corrosiveness, and to [FR Doc. 97–29937 Filed 11–13–97; 8:45 am] maintain records of that testing. BILLING CODE 3510±22±F minutes, for oral comments from the public. Each speaker will be limited to DATES: Any comments must be five minutes. Members of the public submitted to OMB on or before DEPARTMENT OF COMMERCE who are interested in speaking are asked December 15, 1997. to contact the individual identified in ADDRESSES: Send comments to: Office of Technology Administration the ‘‘for further information’’ section. In Information and Regulatory Affairs, addition, written statements are invited Office of Management and Budget, Technical Advisory Committee to and may be submitted to the Committee Attention: Desk Officer for CPSC, 725 Develop a Federal Information at any time. Written comments should 17th Street, NW, Washington, DC 20503. Processing Standard for the Federal be directed to the Technical Advisory FOR FURTHER INFORMATION OR A COPY Key Management Infrastructure Committee to Develop a Federal CONTACT: Robert E. Frye, Director, Office AGENCY: Technology Administration, Information Processing Standard for the of Planning and Evaluation, Consumer Commerce. Federal Key Management Infrastructure, Product Safety Commission, Building 820, Room 426, National Washington, DC 20207; telephone ACTION: Notice of open meeting. Institute of Standards and Technology, (301)504–0416. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61095

SUPPLEMENTARY INFORMATION: Cellulose necessary to provide a reasonable Consumer Product Safety Commission, insulation is a form of thermal testing program. Washington, D.C. 20207; telephone insulation used in houses and other On August 28, 1997, the Commission (301) 504–0626. residential buildings. Most cellulose published a Federal Register notice SUPPLEMENTARY INFORMATION: The text of insulation is manufactured by shredding stating its intention to request an the Agreement and Order appears and grinding used newsprint and extension of approval of this collection below. of information, and requesting adding fire-retardant chemicals. Dated: November 10, 1997. In 1979, the CPSC issued the Interim comments from the public. 62 FR 45630. Sadye E. Dunn, Safety Standard for Cellulose Insulation, The Commission received no comments which is codified at 16 CFR Part 1209. on that notice. Secretary. That standard contains performance Send comments regarding the burden Settlement Agreement and Order estimate or any other aspect of the tests to assure that cellulose insulation 1. Ross Stores, Inc., (hereinafter, information collection, including will resist ignition from sustained heat ‘‘Ross Stores’’ or ‘‘Respondent’’), a suggestions for reducing the burden, to: sources, such as smoldering cigarettes or corporation, enters into this Settlement Office of Information and Regulatory recessed light fixtures, and from small Agreement (hereinafter, ‘‘Agreement’’) Affairs, Office of Management and open-flame sources, such as matches or with the staff of the Consumer Product Budget, Attention: Desk Officer for candles. The standard also contains Safety Commission, and agrees to the CPSC, 725 17th Street, NW, tests to assure that cellulose insulation entry of the Order incorporated herein. Washington, DC 20503. Please refer to will not be corrosive to copper, The purpose of this Agreement and OMB Control No. 3041–0022 in any aluminum, or steel, if exposed to water. Order is to settle the staff’s allegations correspondence. Certification regulations in the that Respondent sold and offered for standard require manufacturers, Dated: November 10, 1997. sale, in commerce, certain women’s importers, and private labelers of Sadye E. Dunn, 100% rayon sheer chiffon skirts and cellulose insulation subject to the Secretary Consumer Product Safety scarves and certain cotton/polyester standard to perform tests to demonstrate Commission. reverse fleece shirts that failed to that their products meet the [FR Doc. 97–30036 Filed 11–13–97; 8:45 am] comply with the Clothing Standard for requirements of the standard. These BILLING CODE 6355±01±P the Flammability of Clothing Textiles parties are also required to maintain (hereinafter, ‘‘Clothing Standard’’), 16 records of those tests. The certification CFR Part 1610, in violation of section 3 requirements are codified at 16 CFR CONSUMER PRODUCT SAFETY of the Flammable Fabrics Act (FFA), 15 Subpart B. COMMISSION U.S.C. § 1192. The Commission uses the information compiled and maintained by these [CPSC Docket No. 98±C0002] I. The Parties parties to help determine whether Ross Stores, Inc., a Corporation; 2. The ‘‘staff’’ is the staff of the cellulose insulation subject to the Provisional Acceptance of a Consumer Product Safety Commission standard complies with all applicable Settlement Agreement and Order (hereinafter, ‘‘Commission’’), an requirements. The Commission also independent regulatory commission of uses this information to obtain AGENCY: Consumer Product Safety the United States government corrective actions if cellulose insulation Commission. established pursuant to section 4 of the fails to comply with the standard in a ACTION: Provision acceptance of a Consumer Product Safety Act (CPSA), way that creates a substantial risk of settlement agreement under the 15 U.S.C. § 2053. injury to the public. Consumer Product Safety Act. 3. Respondent Ross Stores is a OMB approved the collection of corporation organized and existing information in the certification SUMMARY: It is the policy of the under the laws of the State of Delaware regulations under control number 3041– Commission to publish settlements with principal corporate offices at 8333 0022. OMB’s most recent extension of which it provisionally accepts under the Central Avenue, Newark, California approval will expire on November 30, Consumer Product Safety Act in the 94560. Respondent operates a chain of 1997. The Commission has requested an Federal Register in accordance with the off-price retail stores offering apparel extension without change until terms of 16 CFR 1605.13(d). Published and apparel-related merchandise as well November 30, 2000. below is a provisionally-accepted a merchandise for the home. Settlement Agreement with Ross, Inc., a Burden statement: The Commission’s II. Allegations of the Staff staff estimates that the respondent corporation, ‘‘containing a civil penalty burden will average 1,320 hours per of $200,000.’’ A. Rayon Sheer Chiffon Skirts response. That estimate includes the DATES: Any interested person may ask 4. Between April 1994 and August time needed to conduct the tests the Commission not to accept this 1994, Respondent sold, or offered for required by the regulations and to create agreement or otherwise comment on its sale, in commerce, approximately 1,500 and maintain records of the results of contents by filing a written request with style no. 15016 and approximately 1,200 those tests. the Office of the Secretary by November style no. PS 480 women’s 100% sheer Respondents/Affected entities: 29, 1997. chiffon rayon skirts. Businesses that manufacture, import, or ADDRESSES: Persons wishing to 5. The skirts identified in paragraph 4 private label cellulose insulation used comment on this Settlement Agreement above are subject to the Clothing in houses and other residential should send written comments to the Standard, 16 CFR 1610, issued under buildings. Comment 98–C0002, Office of the section 4 of the FFA, 15 U.S.C. § 1193. Estimated number of respondents: 45. Secretary, Consumer Product Safety 6. The staff tested samples of the Estimated Total Annual Burden on Commission, Washington, D.C. 20207. skirts identified in paragraph 4 above Respondents: 59,400 hours. FOR FURTHER INFORMATION CONTACT: for compliance with the requirements of Frequency of Collection: As Dennis C. Kacoyanis, Trial Attorney, the Clothing Standard. See 16 CFR 1610 determined by respondents to be Office of Compliance and Enforcement, .3 and .4. The test results showed that 61096 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices the skirts violated the requirements of 15. The staff tested samples of the 15 U.S.C. § 2051 et seq.; the Flammable the Clothing Standard and, therefore, reverse fleece shirts identified in Fabrics Act (FFA), 15 U.S.C. § 1191 et were dangerously flammable and paragraph 13 above for compliance with seq.; and the Federal Trade Commission unsuitable for clothing because of rapid the requirements of the Clothing Act (FTCA), 15 U.S.C. § 41 et seq. and intense burning. Standard. See 16 CFR 1610.3 and .4. 24. This Agreement is entered into for 7. On August 6, 1994, the staff The test results showed that the fleece settlement purposes only and does not informed Respondent that the skirts wear violated the requirements of the constitute an admission by Respondent identified in paragraph 4 above failed to Clothing Standard and, therefore, were or a determination by the Commission comply with the Clothing Standard and dangerously flammable and unsuitable that Respondent knowingly violated the requested that it review its entire for clothing because of rapid and FFA and the Clothing Standard. By product line for other potential intense burning. entering into this Agreement, violations. 16. On January 8, 1997, April 8, 1997, Respondent makes no admission, and 8. Respondent knowingly sold, or and April 11, 1997, the staff informed the Commission makes no finding, of offered for sale, in commerce, the skirts Respondent that the reverse fleece shirts any fault, liability or statutory violation. identified in paragraph 4 above, as the identified in paragraph 13 above failed This Agreement becomes effective only term ‘‘knowingly’’ is defined in section to comply with the Clothing Standard. upon its final acceptance by the 5(e)(4) of the FFA, 15 U.S.C. 17. Respondent knowingly sold, or Commission and service of the § 1194(e)(4), in violation of section 3 of offered for sale, in commerce, the incorporated Order upon Respondent. the FFA, 15 U.S.C. § 1192, for which a reverse fleece shirts identified in 25. Upon provisional acceptance of civil penalty may be imposed pursuant paragraph 13 above, as the term this Settlement Agreement and Order by to section 5(e)(1) of the FFA, 15 U.S.C. ‘‘knowingly’’ is defined in section the Commission, this Settlement Agreement and Order shall be placed on § 1194(e)(1). 5(e)(4) of the FFA, 15 U.S.C. § 1194(e)(4), in violation of section 3 of the public record and shall be published B. Rayon Scarves the FFA 15 U.S.C. § 1192, for which a in the Federal Register in accordance 9. Between August 1994 and civil penalty may be imposed pursuant with the procedures set forth in 16 CFR September 1995, Respondent sold, or to section 5(e)(1) of the FFA, 15 U.S.C. 1605.13(d). If the Commission does not receive any written request not to accept offered for sale, in commerce, § 1194(e)(1). the Settlement Agreement and Order approximately 16,000 rayon scarves. III. Response of Ross Stores within 15 days, the Settlement 10. The scarves identified in Agreement and Order will be deemed to paragraph 9 above are subject to the 18. Ross Stores denies the allegations be finally accepted on the 20th day after Clothing Standard, 16 CFR 1610, issued of the staff set forth in paragraphs 4 through 17 above, and in particular, that the date it is published in the Federal under section 4 of the FFA, 15 U.S.C. Register. § 1193. it knowingly sold, or offered for sale, in commerce, the violative skirts, scarves, 26. Upon final acceptance of this 11. The staff tested samples of the and reverse fleece shirts identified in Settlement Agreement by the scarves identified in paragraph 9 above paragraphs 4, 9, and 13 above, in Commission and issuance of the Final for compliance with the requirements of violation of section 3 of the FFA, 15 Order, Ross Stores knowingly, the Clothing Standard. See 16 CFR U.S.C § 1192. voluntarily, and completely waives any 1610.3 and .4. The test results showed 19. Respondent states that it ordered rights if may have in this matter (1) to that the scarves violated the the skirts, scarves, and reverse fleece an administrative or judicial hearing, (2) requirements of the Clothing Standard, shirts identified in paragraphs 4, 9, and to judicial review or other challenge or and, therefore, were dangerously 13 above from reliable vendors who contest of the validity of the flammable and unsuitable for clothing purported to sell to Respondent skirts, Commission’s actions; (3) to a because of rapid and intense burning. scarves, and reverse fleece shirts that determination by the Commission as to 12. Respondent knowingly sold, or complied with all laws, including the whether Ross Stores failed to comply offered for sale, in commerce, the Flammable Fabrics Act and the Clothing with the FFA and the Clothing Standard scarves identified in paragraph 9 above, Standard. as aforesaid, (4) to a statement of as the term ‘‘knowingly’’ is defined in 20. Any payment referenced in the findings of facts and conclusions of law, section 5(e)(4) of the FFA, 15 U.S.C. attached Order is proffered solely in and (5) to any claims under the Equal § 1194(e)(4), in violation of section 3 of compromise of the staff’s allegations Access to Justice Act. the FFA, 15 U.S.C. § 1192, for which a and shall not be construed as an 27. Upon final acceptance of this civil penalty may be imposed pursuant admission of any liability for a civil Settlement Agreement by the to section 5(e)(1) of the FFA, 15 U.S.C. penalty or otherwise. Commission and issuance of the Final § 1194(e)(1). 21. Respondent participated with the Order, the Commission specifically C. Reverse Fleece Shirts Commission in voluntary recalls of the waives its right to initiate any other skirts on August 12, 1994, the scarves civil, administrative or criminal action 13. Between August 1996 and April on September 6, 1995, and the reverse against the Respondent, its 1997, Respondent sold, or offered for fleece shirts on February 28, 1997 and stockholders, officers, directors, sale, in commerce, approximately April 8, 1997. employees, agents, successors, and 28,000 style no. 853020, approximately 22. Further, Respondent has received assigns with respect to those alleged 400 style no. 11261217, and no reports of incidents or injuries from violations. approximately 1,300 style no. 1266/ the use of any products enumerated in 28. Upon final acceptance by the 2216 cotton/polyester reverse fleece paragraphs 4, 9, and 13. Commission of this Settlement shirts. Agreement and Order, the Commission 14. The reverse fleece shirts identified IV. Agreement of the Parties shall issue the attached Order in paragraph 13 above are subject to the 23. The Commission has jurisdiction incorporated herein by reference. Clothing Standard, 16 CFR 1610, issued over Ross Stores and the subject matter 29. A violation of the attached Order under section 4 of the FFA, 15 U.S.C. of this Settlement Agreement and Order shall subject Respondent to appropriate § 1193. under the Consumer Product Safety Act, legal action. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61097

30. The Commission may disclose the Respondent Ross Stores, Inc., published a notice to announce a terms of this Settlement Agreement and (hereinafter, ‘‘Ross Stores’’ or meeting of the Defense Partnership Order to the public consistent with ‘‘Respondent’’), a corporation, and the Council to be held November 19, 1997. section 6(b) of the CPSA, 15 U.S.C. staff of the Consumer Product Safety This notice is to announce that the § 2055(b). Commission (‘‘Commission’’); and the meeting is changed to November 17, 31. Agreements, understandings, Commission having jurisdiction over 1997, due to conflicts in members’ representations, or interpretations made the subject matter and Respondent; and schedules. outside this Settlement Agreement and it appearing that the Settlement Order may not be used to vary or Agreement and Order is in the public FOR FURTHER INFORMATION CONTACT: Mr. contradict its terms. interest, it is Kenneth Oprisko, Chief, Labor Relations 32. The provisions of the Settlement Ordered, that the Settlement Branch, Field Advisory Services Agreement and Order shall apply to Agreement and Order be and hereby is Division, Defense Civilian Personnel Ross Stores and each of its successors, accepted, as indicated below; and it is Management Service, 1400 Key assigns, agents, representatives, and Further Ordered, that Respondent pay Boulevard, Suite B–200, Arlington, VA employees, directly or through any to the United States Treasury a civil 22209–5144, (703) 696–1450. corporation, subsidiary, division, or penalty of Two Hundred Thousand Dated: November 7, 1997. other business entity, or through any Dollars ($200,000.00) within twenty (2) agency, device, or instrumentality. days after service upon Respondent of L.M. Bynum, Dated: September 30, 1997. the Final Order. Alterante OSD Federal Register Liaison Officer, Department of Defense. Respondent Ross Stores, Inc. Provisionally accepted and Provisional [FR Doc. 97–29974 Filed 11–13–97; 8:45 am] Michael Balmuth, Order issued on the 10th day of November Vice Chairman and Chief Executive Officer, 1997. BILLING CODE 5000±04±M Ross Stores, Inc., 8333 Central Avenue, By Order of the Commission. Newark, CA 94560. Sadye E. Dunn, DEPARTMENT OF DEFENSE Commission Staff. Secretary, Consumer Product Safety Eric L. Stone, Director, Division of Commission. Department of the Air Force Administrative Litigation, Office of [FR Doc. 97–30038 Filed 11–13–97; 8:45 am] Compliance. BILLING CODE 6355±01±M In-Progress Air Force Cost David Schmeltzer, Assistant Executive Comparisons As of July 1, 1997 Director, Office of Compliance, Consumer Product Safety Commission, Washington, D.C. 20207–0001. DEPARTMENT OF DEFENSE The Air Force is conducting the following cost comparisons in Dated: October 02, 1997. Office of the Secretary accordance with OMB Circular A–76, Dennis C. Kacoyanis, Trail Attorney, Ronald Performance of Commercial Activities. G. Yelenik, Trial Attorney, Division of Defense Partnership Council Meeting Administrative Litigation, Office of Compliance. AGENCY: Department of Defense. ACTION: Order Notice of meeting change. Upon consideration of the Settlement SUMMARY: On October 9, 1997, 62 FR Agreement entered into between 5382, the Department of Defense

Announced Installation State Cost comparison full time equivalents

Maxwell AFB ...... AL Grounds Maintenance ...... 8 Clear ...... AK Power Production ...... 34 Eielson AFB ...... AK Miscellaneous Services ...... 11 Eielson AFB ...... AK Admin Telephone PBX ...... 10 Elmendorf AFB ...... AK Power Production ...... 36 Elmendorf AFB ...... AK Military Family Housing Mgmt ...... 22 Edwards AFB ...... CA Base Supply ...... 327 Los Angeles AFS ...... CA Communication Functions ...... 13 Los Angeles AFS ...... CA Publications Distribution Office ...... 5 Los Angeles AFS ...... CA Education Services ...... 28 March AFB ...... CA Airfield Operations & Weather ...... 41 March AFB ...... CA Transient Aircraft Maintenance ...... 0 March AFB ...... CA Base Operating Support ...... 237 Onizuka AFS ...... CA Utilities Plant ...... 25 Travis AFB ...... CA Military Family Housing Maint ...... 38 Vandenberg AFB ...... CA Base Operating Support ...... 217 Vandenberg AFB ...... CA Structural Maintenance ...... 32 Buckley ANGB ...... CO Airfield Management ...... 37 Falcon AFB ...... CO Communication O&M ...... 205 Falcon AFB ...... CO Utilities Plant ...... 22 Peterson AFB ...... CO Base Operating Support ...... 179 USAF Academy ...... CO Mess Attendants ...... 170 Eglin AFB ...... FL Library ...... 8 Eglin AFB ...... FL Civil Engineering ...... 96 Homestead AFB ...... FL Airfield Operations & Weather ...... 25 Homestead AFB ...... FL Base Operating Support ...... 149 61098 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

Announced Installation State Cost comparison full time equivalents

Hurlburt Com Field ...... FL Grounds Maintenance ...... 11 Hurlburt Com Field ...... FL Transient Aircraft Maintenance ...... 11 Patrick AFB ...... FL Base Operating Support ...... 148 Tyndall AFB ...... FL BOS & Backshop Aircraft Main ...... 1360 Dobbins AFB ...... GA Control Tower Operations ...... 33 Dobbins AFB ...... GA Communication Functions ...... 0 Dobbins AFB ...... GA Weather Services ...... 0 Dobbins AFB ...... GA Base Operating Support ...... 127 Robins AFB ...... GA Audiovisual ...... 42 Robins AFB ...... GA Military Family Housing Maint ...... 12 Robins AFB ...... GA Education Services ...... 29 Ramstein AB ...... Germany Mess Attendants ...... 33 Ramstein AB ...... Germany Military Family Housing Maint ...... 129 Ramstein AB ...... Germany PMEL ...... 79 Spangdahlem AB ...... Germany Mess Attendants ...... 16 Hickam AFB ...... HI Base Operating Support ...... 528 Scott AFB ...... IL Base Supply ...... 106 Grissom ARB ...... IN Airfield Operations & Weather ...... 35 Grissom ARB ...... IN Transient Aircraft Maintenance ...... 0 Grissom ARB ...... IN Base Operating Support ...... 170 New Orleans NAS ...... LA Base Operating Support ...... 66 Hanscom AFB ...... MA Audiovisual ...... 19 Hanscom AFB ...... MA Vehicle O&M ...... 64 Hanscom AFB ...... MA Laboratory Support Services ...... 14 Hanscom AFB ...... MA Communication Functions ...... 93 Hanscom AFB ...... MA Data Processing ...... 18 Otis ANGB ...... MA Transient Aircraft Maintenance ...... 3 Westover AFB ...... MA Control Tower Operations ...... 19 Westover AFB ...... MA Weather Services ...... 0 Westover AFB ...... MA Base Operating Support ...... 210 Minn/St Paul ...... MN Communication Functions ...... 0 Minn/St Paul ...... MN Base Operating Support ...... 104 Columbus AFB ...... MS Base Operating Support ...... 341 Keesler AFB ...... MS Tech Training Center Equip Maint ...... 253 Malmstrom AFB ...... MT Base Supply ...... 150 Multiple Instlns ...... Mult Tech Training-Elect Prin Tng ...... 157 Multiple Instlns ...... Mult Admin Switchboard ...... 59 McGuire AFB ...... NJ Military Family Housing Maint ...... 19 Cannon AFB ...... NM Military Family Housing Maint ...... 21 Holloman AFB ...... NM Military Family Housing Maint ...... 66 Kirtland AFB ...... NM Base Supply ...... 170 Kirtland AFB ...... NM PMEL ...... 51 Kirtland AFB ...... NM Vehicle O&M ...... 156 Niagra Falls IAP ...... NV Weather Services ...... 4 Niagra Falls IAP ...... NV Base Operating Support ...... 39 Offutt AFB ...... NE Heating Systems ...... 30 Wright Patterson AFB ...... OH Base Operating Support ...... 632 Youngstown Muni Arpt ...... OH Base Operating Support ...... 102 Tinker AFB ...... OK Communication Functions ...... 138 Tinker AFB ...... OK Civil Engineering ...... 567 Greater Pittsburg Arpt ...... PA Base Operating Support ...... 111 Willow Grove NAS ...... PA Base Operating Support ...... 78 Charleston AFB ...... SC Audiovisual ...... 13 Brooks AFB ...... TX Laboratory Support Services ...... 44 Carswell AFB ...... TX Base Operating Support ...... 91 Lackland AFB ...... TX Grounds Maintenance ...... 16 Lackland AFB ...... TX Animal Caretaking ...... 26 Laughlin AFB ...... TX Base Communications ...... 62 Sheppard AFB ...... TX Tech Training-Telephone System ...... 16 Hill AFB ...... UT Grounds Maintenance ...... 12 Hill AFB ...... UT Recreational Support ...... 7 Hill AFB ...... UT Heating Systems ...... 38 General Mitchell Field ...... WI Base Operating Support ...... 93 F E Warren AFB ...... WY Base Supply ...... 187 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61099

Barbara A. Carmichael, need for, and proposed use of, the Reporting and Recordkeeping Hour Alternate Air Force Federal Register Liaison information; (5) Respondents and Burden: Officer. frequency of collection; and (6) Responses: 6,097 [FR Doc. 97–29919 Filed 11–13–97; 8:45 am] Reporting and/or Recordkeeping Burden Hours: 6,000 BILLING CODE 3910±01±P burden. OMB invites public comment at Abstract: This study will examine the address specified above. Copies of targeting and resource allocation in the requests are available from Patrick J. major federal education programs, DEPARTMENT OF EDUCATION Sherrill at the address specified above. including Title I, Title II (Eisenhower The Department of Education is Professional Development), Title IV Notice of Proposed Information especially interested in public comment (Safe and Drug-Free Schools and Collection Requests addressing the following issues: (1) Is Communities), Title VI, and Goals 2000. this collection necessary to the proper The study will examine how resources AGENCY: Department of Education. functions of the Department, (2) will are allocated among various strategies ACTION: Proposed collection; comment this information be processed and used for improving student achievement, request. in a timely manner, (3) is the estimate how the use of resources varies across of burden accurate, (4) how might the schools and districts (e.g., by school SUMMARY: The Deputy Chief Information Department enhance the quality, utility, poverty levels and size of allocation), Officer, Office of the Chief Information and clarity of the information to be and changes in the targeting of funds Officer, invites comments on the collected, and (5) how might the since the reauthorization of the proposed information collection Department minimize the burden of this Elementary and Secondary Education requests as required by the Paperwork collection on the respondents, including Act (ESEA) in 1994. The study will Reduction Act of 1995. through the use of information examine the extent to which funds are DATES: Interested persons are invited to technology. being used for strategies highlighted in submit comments on or before January Dated: November 7, 1997. Goals 2000 and the reauthorized 13, 1998. Gloria Parker, Elementary and Secondary Education ADDRESSES: Written comments and Deputy Chief Information Officer, Office of Act, including professional requests for copies of the proposed the Chief Information Officer. development, extended time, parent information collection requests should involvement, coordinated services, and be addressed to Patrick J. Sherrill, Office of Educational Research and schoolwide approaches. The study will Department of Education, 600 Improvement obtain information on the kinds of Independence Avenue, S.W., Room Type of Review: New. expenditures, staff, and activities 5624, Regional Office Building 3, Title: 1998 National Assessment of typically associated with different Washington, DC 20202–4651. Educational Progress (NAEP), Writing strategies; and how resource allocation FOR FURTHER INFORMATION CONTACT: Special Study. decisions are made. The study will also Patrick J. Sherrill (202) 708–8196. Frequency: One Time. examine the amount of federal funds Individuals who use a Affected Public: Individuals or retained at the state and district levels households. telecommunications device for the deaf for administrative and other purposes, Reporting Burden and Recordkeeping: (TDD) may call the Federal Information how those funds are used, and how Relay Service (FIRS) at 1–800–877–8339 Responses: 6,200 much of the funds reach the school Burden Hours: 2,200 between 8 a.m. and 8 p.m., Eastern time, level. Abstract: The 1998 NAEP writing Monday through Friday. [FR Doc. 97–29959 Filed 11–13–97; 8:45 am] special study is designed to bolster the SUPPLEMENTARY INFORMATION: BILLING CODE 4000±01±P Section understanding of study NAEP writing 3506 of the Paperwork Reduction Act of achievement with information on 1995 (44 U.S.C. Chapter 35) requires student’s best writing assignments, and that the Office of Management and the writing process. In addition, the DEPARTMENT OF ENERGY Budget (OMB) provide interested study will collect information about Savannah River Operations Office Federal agencies and the public an early teachers’ emphasis on writing opportunity to comment on information curriculum and instructional collection requests. OMB may amend or Interim Management of Nuclear approaches. The study will be Materials at the Savannah River Site waive the requirement for public conducted with a sample of 6000 (4th consultation to the extent that public and 8th grade) students and 200 AGENCY: Department of Energy. participation in the approval process teachers. The study will use a structured ACTION: Supplemental record of would defeat the purpose of the protocol to obtain more detailed and decision. information collection, violate State or valid information about classroom SUMMARY: Federal law, or substantially interfere instructional practices than a standard The U.S. Department of with any agency’s ability to perform its background questionnaire. Students will Energy (DOE) prepared a final statutory obligations. The Deputy Chief be asked to select three examples of environmental impact statement (EIS), Information Officer, Office of the Chief their best writing and to fill out a brief ‘‘Interim Management of Nuclear Information Officer, publishes this questionnaire describing the samples of Materials’’ (DOE/EIS–0220, October 20, notice containing proposed information writing that they submit. 1995), to assess the potential collection requests prior to submission environmental impacts of actions of these requests to OMB. Each Office of the Under Secretary necessary to manage certain nuclear proposed information collection, Type of Review: New. materials at the Savannah River Site grouped by office, contains the Title: Targeting and Resource (SRS), Aiken, South Carolina, until following: (1) Type of review requested, Allocation Study. decisions on their future use or ultimate e.g., new, revision, extension, existing Frequency: One time. disposition are made and implemented. or reinstatement; (2) Title; (3) Summary Affected Public: State education Some of the particular materials of the collection; (4) Description of the agencies, school districts and schools. considered in the EIS could present 61100 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices environment, safety and health River Operations Office, Building 773– On February 8, 1996, DOE issued a vulnerabilities in their current storage 42A, Room 212, Aiken, South Carolina supplemental ROD (61 FR 6633) for the condition. 29802, (800) 881–7292, Internet: stabilization of two of the remaining On December 12, 1995, DOE issued a [email protected]. categories of nuclear materials (Mark-16 Record of Decision (ROD) and Notice of For further information on the DOE and Mark-22 fuels, and other aluminum- Preferred Alternatives, 60 FR 65300 National Environmental Policy Act clad targets) analyzed in the Final EIS. (December 19, 1995), on the interim (NEPA) process, contact: Carol M. After considering a DOE staff study management of several categories of Borgstrom, Director, Office of NEPA and recommendation on canyon facility nuclear materials at the SRS. That ROD Policy and Assistance, EH–42, U.S. utilization, DOE issued a second announced DOE’s decision to stabilize Department of Energy 1000 supplemental ROD on September 6, plutonium and uranium stored in vaults Independence Avenue, SW., 1996 (61 FR 48474), for the stabilization using a combination of four methods Washington, DC 20585, (202) 586–4600, of the neptunium-237 solution and that were fully analyzed in the Final or leave a message at (800) 472–2756. obsolete neptunium targets, and EIS: (1) Improving Storage, (2) plutonium-239 solutions. SUPPLEMENTARY INFORMATION: Processing to Metal, (3) Processing to On April 2, 1997, DOE issued a third Oxide, and (4) Vitrification (F-Canyon). Background supplemental ROD (62 FR 17790) for the stabilization of the remaining Taiwan DOE also announced a narrowing of The U.S. Department of Energy (DOE) alternatives under consideration for the Research Reactor (TRR) spent nuclear prepared the final environmental impact fuel (62 canisters, containing stabilization of plutonium-239 and statement (EIS), ‘‘Interim Management neptunium-237 solutions in H-Canyon, approximately 310 rods). These fuel of Nuclear Materials’’ (DOE/EIS–0220, rods were believed to be stable when the and obsolete neptunium targets in K- October 20, 1995), to assess the Reactor. Final EIS and initial ROD were issued. potential environmental impacts of However, given new evidence of On September 6, 1996, DOE issued a actions necessary to manage certain Supplemental ROD (61 FR 48474, apparent cladding failure from at least nuclear materials at the Savannah River two canisters, and the fuel’s storage, September 13, 1996) to stabilize the H– Site (SRS), Aiken, South Carolina, until Canyon plutonium-239 solutions to handling, and transportation history, decisions on their future use or ultimate DOE decided to stabilize in the F- metal using the F–Canyon and FB-Line disposition are made and implemented. facilities, and to stabilize the H-Canyon Canyon and FB-Line facilities the Some of the particular materials remaining TRR fuel in the same manner neptunium-237 solution and obsolete considered in the EIS could present neptunium targets (stored in K-Reactor) as the original failed TRR fuel. environment, safety and health On July 17, 1997, the Secretary of to glass using the F–Canyon vitrification vulnerabilities in their current storage Energy approved the adoption of a new capability. condition. phased canyon strategy on the use of the Now, after further review of the The Final EIS identified Improving SRS canyon facilities, and DOE is now plutonium and uranium materials Storage, Processing to Metal, Processing modifying the September 6, 1996 stored in vaults, and considering DOE’s to Oxide, and Vitrification (F-Canyon) decision for the reasons explained recent adoption of a phased canyon using a combination of the F-Canyon, below. strategy for current and potential FB-Line, H-Canyon, HB-Line, and the nuclear material management missions, to-be-constructed Actinide Packaging Interim Management of Nuclear DOE has decided to: (1) add an and Storage Facility (APSF) as the Materials EIS additional method, Processing and preferred alternative for managing the The Interim Management of Nuclear Storage for Vitrification in the Defense plutonium and uranium stored in Materials (IMNM) Final EIS considered Waste Processing Facility (DWPF), to vaults. The Final EIS identified the interim management of certain those being implemented for the Processing to Oxide, in conjunction nuclear materials at the SRS. These management of plutonium and uranium with using the APSF, as the preferred materials included approximately 3,000 stored in vaults; and (2) amend its alternative for managing the plutonium- containers of plutonium and uranium September 6, 1996, ROD to stabilize the 239 and neptunium-237 solutions and materials stored in vaults at the SRS, plutonium-239 and neptunium-237 obsolete neptunium targets. approximately 34,000 liters (9,000 solutions stored in H-Canyon and On December 12, 1995, DOE issued a gallons) of plutonium-239 solutions obsolete neptunium-237 targets stored ROD and Notice of Preferred stored in the H-Canyon, approximately in K-Reactor to oxide forms using the H- Alternatives (60 FR 65300) on the 6,100 liters (1,600 gallons) of Canyon facilities. These management interim management of several neptunium-237 solution stored in H- methods were fully analyzed in the categories of nuclear materials at the Canyon, and nine (9) obsolete Final EIS. SRS. DOE decided to stabilize neptunium-237 targets for the FOR FURTHER INFORMATION CONTACT: This plutonium and uranium stored in vaults production of plutonium-238 stored in is the fourth ROD to be issued to using a combination of four K-Reactor. A small fraction of the vault supplement the initial ROD for the management methods: (1) Improving containers, about five percent or 120 interim management of nuclear Storage, (2) Processing to Metal, (3) containers, contain a substantial fraction materials at the SRS. (See 61 FR 6633 Processing to Oxide, and (4) of the plutonium-238 isotope. (February 21, 1996); 61 FR 48474 Vitrification (F-Canyon). The amount of Plutonium-238 is generally used as a (September 13, 1996); 62 FR 17790 materials stabilized using each of the heat source, and has been used to (April 11, 1997).) For further methods would be dependent upon: (a) provide energy for deep space information on the interim management the physical condition and chemical exploratory missions. of nuclear materials at the SRS or to composition of the material (which DOE The plutonium and uranium vault receive a copy of the Final EIS, the will determine upon opening each of materials contain potentially reactive initial ROD and Notice, or the the containers or packages inside a compounds, plastics that can degrade supplemental RODs contact: Andrew R. glove box in either FB-Line or HB-Line) and decompose, and unknown Grainger, NEPA Compliance Officer, and (b) the availability of the required constituents that make them unsuitable U.S. Department of Energy, Savannah facilities. for interim to long-term storage. The Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61101 plutonium and neptunium solutions are alternative. Summaries of the potential level of air emissions with comparable unsuitable for extended storage because impacts from the alternatives were levels of water emissions; and would of the greater potential for abnormal presented in the IMNM Final EIS [Table generate the least amount of high-level events (e.g., criticality, leaks, spills) that 2–5 (page 2–51) for the neptunium (zero) and mixed waste, with could result in releases of radioactive solution and targets, Table 2–6 (page 2– comparable amounts of transuranic and materials to the environment and 52) for the plutonium-239 solutions, and low-level waste as compared to the exposure to workers and the public. The Table 2–8 (page 2–54) for the plutonium other alternatives. The improving continued storage of the obsolete and uranium stored in vaults]. storage alternative reduces the quantity neptunium targets leads to increased DOE has concluded that there would of materials requiring chemical worker radiation exposure that could be be minimal environmental impact from processing through the canyon facilities. reduced if DOE consolidated neptunium the implementation of any of these storage, thereby advancing DOE’s alternatives in the areas of geologic Plutonium-239 Solutions—Vitrification radiation protection policy of reducing resources, ecological resources (F-Canyon) radiation exposure to as low as (including threatened or endangered Vitrification in F-Canyon of the H- reasonably achievable levels. species), cultural resources, aesthetic Canyon plutonium-239 solutions is The IMNM Final EIS evaluated the and scenic resources, noise, and land estimated to result in the lowest potential environmental impacts of use. Impacts in these areas would be radiological doses to the offsite public several alternatives for stabilizing SRS limited because facility modifications or and the SRS workers; result in nuclear materials. For the plutonium construction of new facilities would comparable levels of hazardous and uranium stored in vaults, these occur within existing buildings or pollutant emissions to the air and water; alternatives included processing the industrialized portions of the SRS. DOE and generate the least amount of materials to either a metal or an oxide anticipates that the existing SRS transuranic, mixed, and low-level waste, form, processing to a glass form in a workforce would support any but comparable amounts of high-level new vitrification capability to be construction projects and other waste as compared to the other installed in the F-Canyon facility, activities required to implement any of alternatives. processing the material for vitrification the alternatives. As a result, DOE (conversion to glass) in the Defense expects negligible socioeconomic Neptunium-237 Solution and Obsolete Waste Processing Facility (DWPF), and impacts from implementing any of the Targets—Vitrification (F-Canyon) improving storage through heat treating, alternatives. Vitrification in F-Canyon for sorting, and repackaging. For the Emissions of hazardous air pollutants stabilizing the solution and targets plutonium-239 and neptunium-237 and releases of hazardous liquid containing neptunium is estimated to solutions and obsolete neptunium effluents for any of the alternatives result in slightly higher radiological targets, the alternatives included would be within applicable federal doses to the SRS workers but result in processing the materials to an oxide standards and existing regulatory the lowest radiological doses to the form, processing to a glass form in the permits for the SRS facilities. Similarly, offsite public; result in higher airborne new vitrification capability to be high-level liquid waste, transuranic emissions of hazardous pollutants with installed in the F-Canyon facility, and waste, mixed hazardous waste and low- comparable levels of liquid effluent processing the material for vitrification level solid waste generated by emissions; and generate the least in the DWPF. Processing to metal, using implementation of any of the amount of high-level, transuranic and the F-Canyon/FB-Line facilities, was alternatives would be handled by mixed wastes, but comparable amounts also evaluated for the plutonium-239 existing waste management facilities. of low-level waste as compared to the solutions. DOE also considered All of the waste types and volumes are other alternatives. continued storage of the materials, i.e., within the capability of the existing SRS Decision the ‘‘No Action’’ alternative. The IMNM waste management facilities for storage, Final EIS identified Processing to Metal, treatment or disposal. DOE has decided to supplement its Processing to Oxide, Vitrification (F- previous decision for the management Canyon), and Improving Storage as the Environmentally Preferable of plutonium and uranium stored in preferred alternatives for managing the Alternatives vaults (60 FR 65300), and amend its plutonium and uranium vault materials, As described in the IMNM Final EIS, previous decision for the management and Processing to Oxide as the preferred certain management alternatives are of plutonium-239 solutions stored in H- alternative for managing the plutonium- expected to result in lower Canyon, neptunium-237 solution stored 239 and neptunium-237 solutions, and environmental impacts than others. in H-Canyon, and obsolete neptunium obsolete neptunium targets. However, a single alternative was rarely targets stored in K-Reactor (61 FR estimated to have lower impacts for all 48474). Environmental Impacts of Alternatives environmental factors. DOE reviewed Plutonium and Uranium Stored in DOE performed evaluations of the the potential environmental impacts Vaults potential impacts of managing all SRS estimated for the alternatives evaluated nuclear materials for each of the for each material category at the SRS, DOE has decided to implement alternatives identified in the IMNM and identified the following as the Processing and Storage for Vitrification Final EIS. For each alternative, the environmentally preferable alternatives: in the DWPF as an additional method evaluations assumed all the materials in for managing plutonium and uranium each category (e.g., plutonium and Plutonium and Uranium Stored in stored in vaults. This method is being uranium materials stored in vaults Vaults implemented principally for a small [approximately 3,000 containers], H- Improving storage for plutonium and quantity, approximately 10 kilograms, of Canyon plutonium-239 solutions uranium stored in vaults is estimated to plutonium-bearing materials containing [approximately 34,000 liters], and result in the lowest radiological dose to plutonium-238. Plutonium-238 is an neptunium-237 solution [approximately the offsite public but a relatively higher isotope of plutonium used generally as 6,100 liters] and 9 obsolete neptunium dose to the SRS workers. This a heat source in National Aeronautics targets) would be managed using each alternative would result in the lowest and Space Administration and other 61102 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices national programs. Approximately five Final EIS may be required to ensure and decommissioning will be required percent (120) of the 3,000 containers of nuclear criticality safety requirements whether or not the HB-Line Phase II plutonium and uranium stored in vaults are met. facility ever operates. Thus, operating are expected to be managed using this DOE has determined that adding this the facility to purify and convert method. The plutonium-238 material is method for managing a small fraction of plutonium-239 (and neptunium) to an unsuitable for programmatic purposes plutonium and uranium materials oxide will not add substantial costs to without isotopic enrichment. The would be advantageous to the overall the facility’s future decontamination capability for plutonium-238 isotopic materials stabilization program. The and decommissioning. enrichment does not exist within the facility, HB-Line, where plutonium-238 Processing the plutonium-239 DOE complex and is not being materials are processed, has completed solutions in H-Canyon and HB-Line also developed. Other low-fissile content plutonium-238 processing activities for will eliminate the need to transport plutonium and uranium vault materials, programmatic purposes and DOE has 34,000 liters (9,000 gallons) of this upon inspection, may also be managed now determined that HB-Line should be material from H-Canyon to F-Canyon. in this manner. The potential impacts prepared for the stabilization of other This will eliminate the need to transport from this action would be low and well materials in order to complete the SRS liquids containing fissile materials and within the potential impacts identified materials stabilization mission as soon associated transfer costs. HB-Line in the IMNM Final EIS. (The IMNM as possible within existing resource and processing also will permit operation of Final EIS considered the impacts of facility limitations. Eliminating the the metal production part of the FB- managing all of the plutonium and purification and resulting solution Line, which was built in the early uranium stored in vaults with this conversion processing of plutonium-238 1960’s, to be terminated sooner. management method.) at HB-Line enables this capability to be The quantity of oxide produced (plus This decision permits the stabilization used for the stabilization of other the metal to be produced as a result of and ultimate disposition of scrap and materials. decisions made in the December 12, residue material containing plutonium- This decision also eliminates a need 1995 (60 FR 65300) and April 2, 1997 238 in DWPF glass canisters. Some to store plutonium-238, not expected to (62 FR 17790) RODs) will constitute additional small fraction of low-fissile have any future programmatic use, in only a small fraction of DOE’s existing content plutonium and uranium vault the new SRS storage vault, the APSF. inventory of weapons-useable materials may also, after inspection, be This will allow DOE to save associated plutonium. DOE believes that the managed in this manner. The fissile design, construction, and operating addition of this small amount does not content of these materials, diluted or costs by eliminating the need for a present new nuclear proliferation poisoned as may be necessary, will not cooled-storage array module in the concerns. DOE already has made a present criticality or waste disposal APSF. commitment that plutonium from DOE’s stabilization actions will not be used for concerns within the waste management Plutonium-239 Solutions system. This management method nuclear explosive purposes. involves minimal facility operations and DOE has decided to stabilize the H- Canyon plutonium-239 solutions by Neptunium-237 Solution and Obsolete can be initiated quickly to alleviate the Neptunium Targets vulnerabilities of continued vault processing them to oxide in the H- storage. The remainder of the containers Canyon and HB-Line facilities. The DOE has decided to stabilize the of plutonium and uranium stored in plutonium-239 solutions will undergo neptunium-237 solution and obsolete vaults will be stabilized using one of the processing in H-Canyon as necessary to neptunium targets to oxide in the H- four previously selected management remove impurities that would interfere Canyon and HB-Line facilities. The nine methods (60 FR 65300, December 19, with the conversion-to-oxide process in obsolete targets will be transported from 1995). HB-Line. The resulting stabilized K-Reactor to H-Canyon. At H-Canyon, The IMNM Final EIS (section 2.3.1, plutonium oxide will be stored in an the targets will be dissolved and page 2–19) describes technical existing vault at the SRS until the new processed to separate the neptunium challenges that must be overcome to APSF is available. The stabilized from other materials (principally stabilize plutonium and uranium vault plutonium will be stored until DOE aluminum). These other materials will materials using the high-level waste implements disposition decisions on be sent to the high-level waste tanks for system and the DWPF. The most this surplus weapons-useable eventual treatment through the significant is control of potential plutonium. Saltstone and DWPF facilities. The nuclear criticality. Plutonium-238 does The SRS has an existing facility (HB- existing neptunium solution and those not present a threat of inadvertent Line, Phase II) designed to purify and generated from the obsolete targets will criticality because, unlike plutonium- convert plutonium-239 (and neptunium) be converted to an oxide in the HB-Line 239 and uranium-235 (the principal to an oxide, but it has never been facilities after purification in H-Canyon. nuclear materials in the vault materials), operated. In the September 6, 1996 In addition, neptunium separated from very large quantities of plutonium-238 decision (61 FR 48474) for the the stabilization of the Mark-16 and would have to be assembled to result in stabilization of this plutonium-239, DOE Mark-22 fuels (as announced in the a criticality. Quantities of this had expected that by not starting up the February 8, 1996 supplemental ROD (61 magnitude would not occur in the high- Phase II facility, substantial costs FR 6633) will be stabilized along with level waste tanks. However, this associated with its future the neptunium solution and targets. The management method will also entail the decontamination and decommissioning resulting canisters containing the transfer of plutonium-239 mixed with could be avoided. After further neptunium oxide will be stored in either the plutonium-238 (and potentially consideration, however, it has become the H- or F-Canyon facility or the new other vault materials containing low clear that the facility, by virtue of its APSF, when constructed, until DOE concentrations of plutonium-239 and location within the H-Canyon structure implements programmatic decisions on uranium-235) to the high-level waste and its inter-connection with other HB- the future use of the neptunium. tanks. Therefore, dilution and/or Line processes, has been radioactively DOE has selected processing to oxide neutron poisoning of the transferred contaminated. The Department now in H-Canyon/HB-Line for several materials as considered in the IMNM believes that future decontamination reasons. The SRS has an existing facility Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61103

(HB-Line, Phase II) designed to purify Inc., of Palo Alto, California, an necessary determinations be made after and convert neptunium (and plutonium- exclusive or partially exclusive license public notice and opportunity for filing 239) to an oxide. For the reasons to practice the invention described in written objections. discussed above regarding the Israel Patent Application S.N. 119,342, Caliper Technologies, Inc., of Palo entitled ‘‘Method for Priming and DNA stabilization of plutonium-239 Alto, California, has applied for an solutions, not operating the Phase II line Sequencing,’’ and corresponding Patent exclusive license to practice the subject for neptunium stabilization would not Applications in the U.S.A., Japan, invention and has a plan for save significant decontamination and certain European countries, and commercialization of the invention. decommissioning costs. In addition, possible other countries. The invention DOE could use the HB-Line Phase III is owned by the United States of The proposed license is expected to line, an operational facility, to allow America, as represented by the be exclusive or partially exclusive, neptunium stabilization activities to Department of Energy (DOE). The subject to a license and other rights begin sooner than previously scheduled. proposed license may be exclusive, or retained by the U.S. Government, and HB-Line Phase III, however, has limited partially exclusive, but will be subject to subject to a negotiated royalty and other processing capacity. Relying solely on a license and other rights retained by fees. The Department will review all HB-Line Phase III for neptunium the U.S. Government, and other terms timely written responses to this notice, conversion would extend stabilization and conditions to be negotiated. DOE and will grant the license if, after completion several years. Processing the intends to grant the license, upon a final expiration of the 60-day notice period, neptunium-237 solution in H-Canyon determination in accordance with 35 and after consideration of written and HB-Line, however, will eliminate U.S.C. § 209(c), unless within 60 days of responses to this notice, a determination the need to transport 6,100 liters (1,600 this notice the Assistant General is made, in accordance with 35 U.S.C. gallons) of this material from H-Canyon Counsel for Technology Transfer and 209(c), that the license grant is in the to F-Canyon. Furthermore, recent Intellectual Property, Department of public interest. difficulties encountered in the Energy, Washington, D.C. 20585, development program for vitrification of receives in writing any of the following, Issued in Washington, D.C., on November the americium and curium solution together with supporting documents: 7, 1997. indicate that the schedule and cost for (i) A statement from any person Paul A. Gottlieb, vitrification of the neptunium in F- setting forth reasons why it would not Assistant General Counsel, for Technology Canyon were significantly be in the best interests of the United Transfer and Intellectual Property. underestimated. States to grant the proposed license; or [FR Doc. 97–30003 Filed 11–13–97; 8:45 am] (ii) An application for a nonexclusive To maintain the neptunium in a BILLING CODE 6450±01±P concentrated physical form, thus license to the invention, in which preserving the potential for future use, applicant states that he already has DOE evaluated alternatives for brought the invention to practical DEPARTMENT OF ENERGY converting the neptunium to either an application or is likely to bring the oxide or glass. Either form was invention to practical application Federal Energy Regulatory originally determined acceptable to expeditiously. Commission support future use of the material, if DATES: Written comments or required. DOE has now determined that nonexclusive license applications are to [Docket No. ER97±886±001] to best preserve the neptunium for be received at the address listed below potential programmatic use (and to no later than January 13, 1998. Brooklyn Navy Yard Cogeneration minimize associated future waste ADDRESSES: Office of the Assistant Partners, L.P.; Notice of Filing generation) it should be converted to a General Counsel for Technology stable oxide. Neptunium oxide is the Transfer and Intellectual Property, U.S. November 7, 1997. traditional form produced at the SRS Department of Energy, 1000 Take notice that on October 30, 1997, and is the form used for programmatic Independence Avenue, S.W., Brooklyn Navy Yard Cogeneration purposes (i.e., plutonium-238 Washington, D.C. 20585. Partners, L.P. tendered for filing its production). FOR FURTHER INFORMATION CONTACT: compliance filing in the above- Issued at Washington, DC, October 31, Robert J. Marchick, Office of the referenced docket. 1997. Assistant General Counsel for Any person desiring to be heard or to Alvin L. Alm, Technology Transfer and Intellectual protest said filing should file a motion Assistant Secretary for Environmental Property, U.S. Department of Energy, Management. Forrestal Building, Room 6F–067, 1000 to intervene or protest with the Federal Energy Regulatory Commission, 888 [FR Doc. 97–30005 Filed 11–13–97; 8:45 am] Independence Avenue, S.W., First Street, N.E., Washington D.C. BILLING CODE 6450±01±P Washington, D.C. 20585; Telephone (202) 586–4792. 20426, in accordance with Rules 211 SUPPLEMENTARY INFORMATION: 35 U.S.C. and 214 of the, Commission’s Rules of DEPARTMENT OF ENERGY 209(c) provides the Department with Practice and Procedure (18 CFR 385.211 authority to grant exclusive or partially and 18 CFR 385.214). All such motions Caliper Technologies, Inc. exclusive licenses in Department-owned or protests should be filed on or before November 21, 1997. Protests will be AGENCY: Office of the General Counsel, inventions, where a determination can Department of Energy. be made, among other things, that the considered by the Commission in determining the appropriate action to be ACTION: Notice of Intent to Grant desired practical application of the taken, but will not serve to make Exclusive or Partially Exclusive Patent invention has not been achieved, or is protestants parties to the proceeding. License. not likely expeditiously to be achieved, under a nonexclusive license. The Any person wishing to become a party SUMMARY: Notice is hereby given of an statute and implementing regulations must file a motion to intervene. Copies intent to grant to Caliper Technologies, (37 CFR Part 404) require that the of this filing are on file with the 61104 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices commission and are available for public credit agreements or under substantially Park Meter Station was originally inspection. similar thereto from time to time over constructed in September 1993, Linwood A. Watson, Jr., the 24-month period immediately pursuant to 18 CFR Section 284.3 as Acting Secretary. following the date of the Commission’s facilities to be utilized solely for [FR Doc. 97–29946 Filed 11–13–97; 8:45 am] approval of the application. transportation authorized by Section Any person desiring to be heard or to 311(a) of the Natural Gas Policy Act for BILLING CODE 6717±01±M protest said filing should file a motion Mountain Fuel Supply Company to intervene or protest with the Federal (Mountain Fuel). DEPARTMENT OF ENERGY Energy Regulatory Commission, 888 Kern River declares the Hunter Park First Street, N.E., Washington, D.C. delivery point consists of a meter station Federal Energy Regulatory 20426, in accordance with Rules 211 with an 8-inch tap, one 12-inch turbine Commission and 214 of the Commission’s Rules of meter run, and appurtenant piping and Practice and Procedure (18 CFR 385.211 facilities. Kern River states the original [Docket No. ER97±2878±000] and 385.214). All such motions or cost of the Hunter Park Meter Station protests should be filed on or before was $315,532, which was reimbursed by Delmarva Power & Light Company and December 2, 1997. Protests will be Mountain Fuel. Pennsylvania Power & Light Company; considered by the Commission in Any person or the Commission’s staff Notice of Filing determining the appropriate action to be may, within 45 days after issuance of November 7, 1997. taken, but will not serve to make the instant notice by the Commission, Take notice that on October 31, 1997, protestants parties to the proceeding. file pursuant to Rule 214 of the Delmarva Power & Light Company and Any person wishing to become a party Commission’s Procedural Rules (18 CFR 385.214) a motion to intervene or notice Pennsylvania Power & Light Company, must file a motion to intervene. Copies of intervention and pursuant to Section now known as PP&L, Inc., tendered for of this filing are on file with the 157.205 of the Regulations under the filing an amendment in the above- Commission and available for public Natural Gas Act (18 CFR 157.205) a captioned docket. inspection. protest to the request. If not protest is Any person desiring to be heard or to Linwood A. Watson, Jr., filed within the time allowed therefore, protest said filing should file a motion Acting Secretary. the proposed activity shall be deemed to to intervene or protest with the Federal [FR Doc. 97–29953 Filed 11–13–97; 8:45 am] be authorized effective the day after the Energy Regulatory Commission, 888 BILLING CODE 6717±01±M time allowed for filing a protest. If a First Street, N.E., Washington, D.C. protest is filed and not withdrawn 20426, in accordance with Rules 211 or DEPARTMENT OF ENERGY within 30 days after the time allowed 214 of the Commission’s Rules of for filing a protest, the instant request Practice and Procedure (18 CFR 385.211 Federal Energy Regulatory shall be treated as an application for and 18 CFR 385.214). All such motions Commission authorization pursuant to Section 7 of or protests should be filed on or before the Natural Gas Act. November 21, 1997. Protests filed with [Docket No. CP98±58±000] Linwood A. Watson, Jr., the Commission will be considered by it in determining the appropriate action Kern River Gas Transmission; Notice Acting Secretary. to be taken but will not serve to make of Request Under Blanket [FR Doc. 97–29942 Filed 11–13–97; 8:45 am] the protestants parties to the Authorization BILLING CODE 6717±01±M proceeding. Any person wishing to November 7, 1997. become a party must file a motion to Take notice that on October 31, 1997, DEPARTMENT OF ENERGY intervene. Copies of this filing are on Kern River Gas Transmission Company file with the Commission and are (Kern River), P.O. Box 58900, Salt Lake Federal Energy Regulatory available for public inspection. City, Utah 84108–0900, filed in Docket Commission Linwood A. Watson, Jr., No. CP98–58–000 a request pursuant to [Docket No. ER97±2993±000] Acting Secretary. Sections 157.205 and 157.211 of the [FR Doc. 97–29948 Filed 11–13–97; 8:45 am] Commission’s Regulations under the MidAmerican Energy Company; Notice BILLING CODE 6717±01±M Natural Gas Act (18 CFR 157.205, of Filing 157.211) for authorization to operate the Hunter Park Meter Station, located in November 7, 1997. DEPARTMENT OF ENERGY Salt Lake County, Utah, as a certificated Take notice that on October 28, 1997, delivery point under Section 7(c) of the MidAmerican Energy Company Federal Energy Regulatory Natural Gas Act (NGA) for the delivery (MidAmerican), 666 Grand Avenue, Des Commission of gas under Kern River’s blanket Moines, Iowa 50303 submitted to the [Docket No. ES98±5±000] certificate issued in Docket No. CP89– Commission for filing an amendment to 2048–000, pursuant to Section 7(c) of its initial filing in this proceeding. The Electric Energy, Inc., Notice of the Natural Gas Act, all as more fully set change consists of the Second Amended Application forth in the request that is on file with and Restated Second Amendment dated the Commission and open to public October 1, 1997 entered into by November 7, 1997. inspection. MidAmerican and Central Iowa Power Take notice that on November 3, Kern River proposes to operate the Cooperative (CIPCO) to Interconnection 1997, Electric Energy, Inc. filed an Hunter Park Meter Station, located in Agreement dated June 13, 1983 entered application with the Commission Salt Lake County, Utah, as NGA into by Iowa-Illinois Gas and Electric seeking authorization pursuant to jurisdictional facilities for the delivery Company (a predecessor by merger to Section 204 of the Federal Power Act, to of gas to any eligible shipper under Kern MidAmerican) and CIPCO. issue up to $35,000,000 of notes under River’s blanket transportation MidAmerican states that the purpose the terms of certain unsecured revolving certificate. Kern River states the Hunter of the rate schedule change is to Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61105 establish an additional connection by of the Federal Power Act, 16 U.S.C. considered by the Commission in CIPCO; revise provisions relating to the § 824d (1985), and part 35 of the determining the appropriate action to be basis upon which energy is delivered by Commission’s Rules of Practice and taken, but will not serve to make CIPCO to MidAmerican at normally Procedure, 18 CFR part 35, and in protestants parties to the proceeding. closed points or connection; revise accordance with Ordering Paragraph J of Any person wishing to become a party provisions relating to the normal the Federal Energy Regulatory must file a motion to intervene. Copies operating status of two Points of Commission’s June 9, 1997 order (the of this filing are on file with the Connection; and revise the basis for ‘‘Order’’) in Docket No. ER97–2518–000. Commission and are available for public billing the transmission service charge, Any person desiring to be heard or to inspection. but not the amount of the charge, as a protest said filing should file a motion Linwood A. Watson, Jr., result of the changes to provisions to intervene or protest with the Federal Acting Secretary. relating to the normal operating status of Energy Regulatory Commission, 888 [FR Doc. 97–29951 Filed 11–13–97; 8:45 am] two points of connection. First Street, N.E., Washington, D.C. BILLING CODE 6717±01±M MidAmerican requests an effective 20426, in accordance with Rules 211 date in accordance with Section 5 of the and 214 of the Commission’s Rules of Second Amended and Restated Second Practice and Procedure (18 CFR 385.211 DEPARTMENT OF ENERGY Amendment and further requests the and 18 CFR 385.214). All such motions Commission to accept the rate schedule or protests should be filed on or before Federal Energy Regulatory change for filing within 60 days of the November 21, 1997. Protests will be Commission date of this submission to the considered by the Commission in Commission. MidAmerican has served a determining the appropriate action to be [Docket No. ER97±4704±000] copy of the filing on CIPCO. taken, but will not serve to make Any person desiring to be heard or to protestants parties to the proceeding. Rochester Gas and Electric protest said filing should file a motion Any person wishing to become a party Corporation; Notice of Filing to intervene or protest with the Federal must file a motion to intervene. Copies November 7, 1997. Energy Regulatory Commission, 888 of this filing are on file with the First Street, N.E. Washington, D.C. Commission and are available for public Take notice that Rochester Gas and 20426, in accordance with Rules 211 inspection. Electric Corporation (RG&E) on October 31, 1997, tendered for filing an and 214 of the Commission’s Rules of Linwood A. Watson, Jr., Practice and Procedure (18 CFR 385.211 amendment to its filing in the above- Acting Secretary. referenced proceeding. and 18 CFR 385.214). All such motions [FR Doc. 97–29950 Filed 11–13–97; 8:45 am] or protests should be filed on or before RG&E requests waiver of the BILLING CODE 6717±01±M November 21, 1997. Protests will be Commission’s sixty (60) day notice considered by the Commission in requirements and an effective date of September 22, 1997 for the Virginia determining the appropriate action to be DEPARTMENT OF ENERGY taken, but will not serve to make Electric and Power Company Service protestants parties to the proceeding. Federal Energy Regulatory Agreement. Any person wishing to become a party Commission Copies of this filing have been sent to must file a motion to intervene. Copies Virginia Power and the New York [Docket No. ER97±4345±000] of this filing are on file with the Public Service Commission. Commission and are available for public Any person desiring to be heard or to OGE Energy Resources, Inc., Notice of protest said filing should file a motion inspection. Filing Linwood A. Watson, Jr., to intervene or protest with the Federal Energy Regulatory Commission, 888 Acting Secretary. November 7, 1997. Take notice that on October 29, 1997, First Street, N.E., Washington, D.C. [FR Doc. 97–29949 Filed 11–13–97; 8:45 am] 20426 in accordance with Rules 211 and BILLING CODE 6717±01±M OGE Energy Resources, Inc. (‘‘OERI’’) made a compliance filing with the 214 of the Commission’s Rules of Commission in the above-referenced Practice and Procedure (18 CFR 385.211 and 18 CFR 385.214). All such motions DEPARTMENT OF ENERGY docket in accordance with the Commission’s October 17, 1997 order or protests should be filed on or before Federal Energy Regulatory conditionally accepting for filing, November 21, 1997. Protests will be Commission without suspension or hearing, OERI’s considered by the Commission in market-based power sales rates. determining the appropriate action to be [Docket No. ER97±4031±000] Any person desiring to be heard or to taken, but will serve to make the protest said filing should file a motion protestants parties to the proceeding. New York State Electric & Gas Any person wishing to become a party Corporation; Notice of Filing to intervene or protest with the Federal Energy Regulatory Commission, 888 must file a motion to intervene. Copies November 7, 1997. First Street, N.E., Washington, D.C. of this filing are on file with the Take notice that New York State 20426, in accordance with Rules 211 Commission and are available for public Electric & Gas Corporation filed on and 214 of the Commission’s Rules of inspection. October 30, 1997 the revised Summary Practice and Procedure (18 CFR 385.211 Linwood A. Watson, Jr., of Quarterly Activity (the ‘‘Summary’’) and 18 CFR 385.214). All such motions Acting Secretary. for the calendar year quarter ending or protests should be filed on or before [FR Doc. 97–29952 Filed 11–13–97; 8:45 am] June 30, 1997 pursuant to Section 205 November 21, 1997. Protests will be BILLING CODE 6717±01±M 61106 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

DEPARTMENT OF ENERGY Commission and open to public participate as a party in any hearing inspection. therein must file a petition to intervene Federal Energy Regulatory Tennessee states that, by a Purchase in accordance with the Commission’s Commission and Sale Agreement dated September Rules. 10, 1997, and subsequent amendment Take further notice that, pursuant to [Project No. 2596±000] dated October 19, 1997, Tennessee and the authority contained in and subject to Rochester Gas & Electric Corp.; Notice Enogex mutually agreed that Tennessee the jurisdiction conferred upon the of Meeting will sell to Enogex all of Tennessee’s Federal Energy Regulatory Commission rights, title and interests in and to the by Sections 7 and 15 of the Natural Gas November 7, 1997. Buzzard Gap System and all rights of Act and the Commission’s Rules of Rochester Gas & Electric Corporation way, permits, licenses and other Practice and Procedure, a hearing will (RG&E) has applied to the Commission agreements associated with the system. be held without further notice before the for a subsequent license for the Station Tennessee states that the public Commission or its designee on this 160 Project No. 2596. The project is interest will be served by the sale of the application if no petition to intervene is located on the Genesee River, in Buzzard Gap System to Enogex. filed within the time required herein, if Livingston County, New York. Tennessee states that the Buzzard Gap the Commission on its own review of RG&E and the New York State System was constructed by Tennessee’s the matter finds that a grant of the Department of Environmental merchant service. Tennessee also states certificate is required by the public Conservation (DEC) are in the process of that, as a result of Order No. 636, convenience and necessity. If a petition negotiating terms and conditions for Tennessee has restructured its services for leave is timely filed, or if the Section 401 water quality certification and is now solely a transporter of gas. Commission on its own motion believes for the Station 160 Project. RG&E and Tennessee, therefore, states that it no that a formal hearing is required, further DEC have scheduled a meeting to longer needs the Buzzard Gap System. notice of such hearing will be duly facilitate the discussion. Commission Tennessee further states that the given. staff will attend the meeting. Buzzard Gap System is not integral to Under the procedure provided for, Meeting Date: Monday, November 24, Tennessee’s operations in the post- unless otherwise advised, it will be 1997 from 11:00 a.m. restructuring environment. Tennessee unnecessary for Tennessee to appear or states that granting the requested Location: New York State Department be represented at the hearing. abandonment authorization will enable of Conservation offices, 50 Wolf Road, Linwood A. Watson, Jr., Tennessee to streamline its transmission Albany, New York. Acting Secretary. operations for its principal activity of Meeting Scope: RG&E and DEC to [FR Doc. 97–29945 Filed 11–13–97; 8:45 am] mainline gas transportation. Finally, discuss change in impoundment BILLING CODE 6717±01±M Tennessee states that the sale of the fluctuation at Station 2 and status of the Buzzard Gap System will not adversely 401 Water Quality Certification affect any of Tennessee’s existing Settlement Agreement for Station 160. DEPARTMENT OF ENERGY customers. Interested parties are welcome to Tennessee requests that the Federal Energy Regulatory attend this meeting. For further Commission find that (1) upon the sale Commission information please contact: Hal of the Buzzard Gap System to Enogex, Waggoner, Rochester Gas & Electric the transferred facilities will be [Docket No. ER97±2460±001] Corporation, at (716) 724–8105. intrastate facilities which are exempt Unitil Power Corp.; Notice of Filing Linwood A. Watson, Jr., from the Commission’s NGA Acting Secretary. jurisdiction, and (2) Enogex’s November 7, 1997. [FR Doc. 97–29954 Filed 11–13–97; 8:45 am] acquisition of such facilities will not Take notice that on October 10, 1997, BILLING CODE 6717±01±M subject Enogex to the Commission’s Unitil Power Corp. (Unitil Power) NGA jurisdiction. Tennessee also tendered for filing pursuant to Rules 205 requests that the Commission grant all and 207, an amendment to its April 8, DEPARTMENT OF ENERGY other authorizations and waivers that 1997, Petition for waivers and blanket are necessary to effectuate the approvals under various regulations of Federal Energy Regulatory transactions contemplated in its the Commission and for an order Commission application. accepting its market-based rate schedule Any person desiring to be heard or to [Docket No. CP98±63±000] to be effective June 1, 1997. Unitil make any protests with reference to said Power indicates in its amended filing Tennessee Gas Pipeline Company; application should on or before that it will prohibit power sales to Notice of Application November 28, 1997, file with the affiliates absent a separate 205 filing. Federal Energy Regulatory Commission, A copy of Unitil Power’s amendment November 7, 1997. Washington, D.C. 20426, a petition to was served on the New Hampshire Take notice that on October 31, 1997, intervene or a protest in accordance Public Utilities Commission. Tennessee Gas Pipeline Company with the requirements of the Any person desiring to be heard or to (Tennessee), 1001 Louisiana, Houston, Commission’s Rules of Practice and protest said filing should file a motion Texas 77002, filed an application Procedure (18 CFR 385.214 or 385.211) to intervene or protest with the Federal pursuant to Section 7(b) of the Natural and the Regulations under the Natural Energy Regulatory Commission, 888 Gas Act (NGA) and the Commission’s Gas Act (18 CFR 157.10). All protests First Street, N.E., Washington, D.C. Regulations thereunder, requesting filed with the Commission will be 20426, in accordance with Rules 211 authority for Tennessee to abandon, by considered by it in determining the and 214 of the Commission’s Rules of sale to Enogex, Inc. (Enogex), the appropriate action to be taken but will Practice and Procedure (18 CFR 385.211 Buzzard Gap System in Latimer County, not serve to make the protestants parties and 18 CFR 385.214). All such motions Oklahoma, all as more fully set forth in to the proceeding. Any person wishing or protests should be filed on or before the application on file with the to become a party to a proceeding or to November 21, 1997. Protests will be Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61107 considered by the Commission in In Docket No. CP98–60–000, Viking in accordance with the requirements of determining the appropriate action to be Voyageur requests authorization to the Commission’s Rules of Practice and taken, but will not serve to make construct, own, operate, and maintain Procedure (18 CFR 385.214 or 385.211) protestants parties to the proceeding. approximately 773 miles of 42-inch and the Regulations under the Natural Any person wishing to become a party diameter pipeline originating at a point Gas Act (18 CFR 157.10). All protests must file a motion to intervene. Copies of interconnection with the Canadian filed with the Commission will be of this filing are on file with the portion of the coordinated project at the considered by it in determining the Commission and are available for public U.S./Canada border at Noyes, Minnesota appropriate action to be taken but will inspection. (near Emerson, Manitoba). The not serve to make the protestants parties Linwood A. Watson, Jr., proposed pipeline facilities would to the proceeding. The Commission’s Acting Secretary. extend through Minnesota and rules require that protestors provide [FR Doc. 97–29947 Filed 11–13–97; 8:45 am] Wisconsin to a terminus in Will County, copies of their protests to the party or BILLING CODE 6717±01±M Illinois. Viking Voyageur also proposes person to whom the protests are to construct twenty-two meter stations directed. Any person wishing to become and compression facilities totaling a party to a proceeding or to participate DEPARTMENT OF ENERGY 124,000 horsepower. The compression as a party in any hearing therein must facilities will be located in Kittson and file a motion to intervene in accordance Federal Energy Regulatory Otter Tail Counties, Minnesota and Polk with the Commission’s Rules. Commission and Waushara Counties, Wisconsin. The A person obtaining intervenor status project cost is estimated to be about will be placed on the service list [Docket Nos. CP98±60±000, CP98±62±000, CP98±64±000, and CP98±65±000] $1.24 billion. maintained by the Secretary of the Viking Voyageur requests a Commission and will receive copies of Viking Voyageur Gas Transmission preliminary determination on non- all documents issued by the Company, L.L.C.; Notice of environmental issues by April 1, 1998, Commission, filed by the applicant, or Applications and a final order granting certificate filed by all other intervenors. An authority by November 1, 1998, in order intervenor can file for rehearing of any November 7, 1997. to meet a proposed in-service date of Commission order and can petition for Take notice that on October 31, 1997, November 1, 1999. court review of any such order. Viking Voyageur Gas Transmission In Docket No. CP98–62–000, Viking However, an intervenor must serve Company, L.L.C. (Viking Voyageur), 825 Voyageur submitted an application copies of comments or any other filing Rice Street, St. Paul, Minnesota 55117– pursuant to Section 3 of the NGA, part it makes with the Commission to every 5484, filed in Docket Nos. CP98–60– 153 of the Commission’s regulations, other intervenor in the proceeding, as 000, CP98–62–000, CP98–64–000, and and Executive Order 10485, as amended well as filing an original and 14 copies CP98–65–000 applications pursuant to by Executive Order 12038, and the with the Commission. Section 7(c) and Section 3 of the Natural Secretary of Energy’s Delegation Order A person does not have to intervene, Gas Act (NGA) and Parts 284 and 157 No. 0204–112, for Section 3 however, in order to have of the Commission’s regulations for: a authorization and a Presidential Permit environmental comments considered. A certificate of public convenience and to site, construct, operate, and maintain person, instead, may submit two copies necessity to construct, own, operate, certain facilities for the importation of of comments to the Secretary of the and maintain natural gas pipeline natural gas to be located at the Commission. Commenters will be facilities; authorization pursuant to international border between the United placed on the Commission’s Section 3 of the NGA and a Presidential States of America and Canada near environmental mailing list, will receive Permit for the siting, construction, Noyes, Minnesota. copies of environmental documents and operation, and maintenance of certain In Docket No. CP98–64–000, Viking will be able to participate in meetings facilities for the importation of natural Voyageur requests a blanket certificate associated with the Commission’s gas; a blanket certificate authorizing under Part 284, Subpart G of the environmental review process. non-discriminatory, open-access Commission’s regulations. Viking Commenters will not be required to transportation services; and blanket Voyageur filed a pro forma tariff that serve copies of filed documents on all certificate authorization to engage in offers firm and interruptible other parties. However, commenters certain routine activities, all as more transportation with flexible delivery will not receive copies of all documents fully set forth in the applications which points. Viking Voyageur offers two filed by other parties or issued by the are on file with the Commission and negotiated rate options—either a 10-year Commission, and will not have the right open to public inspection. or a 15-year negotiated rate contract—as to seek rehearing or appeal the As part of a coordinated pipeline alternatives to Commission approved Commission’s final order to a Federal project designed to transport 1.4 Bcf per cost-of-service recourse rates for a 15- court. day of natural gas from Empress, Alberta year term for firm transportation. The Commission will consider all to the Joilet, Illinois area, Viking In Docket No. CP98–65–000, Viking comments and concerns equally, Voyageur proposes to construct the Voyageur requests a blanket certificate whether filed by commenters or those United States portion of the pipeline authorizing construction operation, and requesting intervenor status. facilities. The proposed pipeline abandonment of certain facilities under Take further notice that, pursuant to facilities will interconnect with several Part 157, Subpart F of the Commission’s the authority contained in and subject to interstate pipelines and local regulations. jurisdiction conferred upon the Federal distribution companies and will directly Any person desiring to be heard or to Energy Regulatory Commission by provide service to various delivery make any protest with reference to said Sections 3, 7 and 15 of the Natural Gas points in Minnesota, Wisconsin, and application should on or before Act and the Commission’s Rules of Illinois. Upon acceptance of the November 28, 1997, file with the Practice and Procedure, a hearing will requested certification, Viking Voyageur Federal Energy Regulatory Commission, be held without further notice before the will be a natural gas company subject to 888 First Street, NE, Washington, D.C. Commission or its designee on these the Commission’s jurisdiction. 20426, a motion to intervene or a protest applications if no motion to intervene is 61108 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices filed within the time required herein, if area.1 The Raymore town border station DEPARTMENT OF ENERGY the Commission on its own review of was originally installed in 1963 and the matter finds that a grant of the certificated in Docket No. CP63–345.2 Federal Energy Regulatory Commission certificate is required by the public Williams states that the Lee’s Summit convenience and necessity. If a motion town border meter will become a single [Docket No. CP98±56±000] for leave to intervene is timely filed, or point of delivery for MGE. Williams if the Commission on its own motion Williston Basin Interstate Pipeline further states that to maintain service to believes that a formal hearing is Company; Notice of Request Under the Lee’s Summit town border location, required, further notice of such hearing Blanket Authorization will be duly given. it will construct a tie-over line from its Sugar Creek line to the Lee’s Summit November 7, 1997. Under the procedure herein provided town border station pursuant to Section Take notice that on October 30, 1997, for, unless otherwise advised, it will be 311 of the NGPA. Williston Basin Interstate Pipeline unnecessary for Viking Voyageur to Company (Williston Basin), 200 North appear or be represented at the hearing. Williams indicates that the most recent volumes of gas delivered to the Third Street, Suite 300, Bismarck, North Linwood A. Watson, Jr., Dakota 58501, filed in Docket No. CP98– Raymore town border station was 7,565 Acting Secretary. 56–000 a request pursuant to Sections MMcf on a peak day with 595,035 MMcf [FR Doc. 97–29944 Filed 11–13–97; 8:45 am] 157.205 and 157.211 of the delivered annually. It is stated that BILLING CODE 6717±01±M Commission’s Regulations under the service to the Raymore town border Natural Gas Act (18 CFR 157.205 and facility will continue to be provided by 157.211) for authorization to construct DEPARTMENT OF ENERGY MGE. and operate new metering and Williams indicates that MGE will associated appurtenant facilities for use Federal Energy Regulatory integrate into its system, the facilities in providing delivery of transportation Commission that Williams has designated to sell to service gas to Bear Paw Operating MGE in this proceeding. It is averred Company, Inc. (Bear Paw), under [Docket No. CP98±59±000] that one domestic customer, located on Williston Basin’s blanket certificate the 1.95-mile segment, will be impacted issued in Docket No. CP82–487–000 Williams Natural Gas Company; Notice by the proposed abandonment. pursuant to Section 7 of the Natural Gas of Request under Blanket Act, all as more fully set forth in the Authorization Any person or the Commission’s staff request that is on file with the may, within 45 days after issuance of Commission and open to public November 7, 1997. the instant notice by the Commission, inspection. Take notice that on October 31, 1997, file pursuant to Rule 214 of the Williston Basin states that the Williams Natural Gas Company Commission’s Procedural Rules (18 CFR facilities to be constructed at the (Williams), Post Office Box 3288, Tulsa, 385.214) a motion to intervene or notice proposed metering facility will consist Oklahoma 74101, filed in Docket No. of intervention and pursuant to Section of a building, an orifice meter, SCADA CP98–59–000 a request pursuant to 157.205 of the Regulations under the communication equipment and Sections 157.205 and 157.216 of the Natural Gas Act (18 CFR 157.205) a miscellaneous piping, gauges and Commission’s Regulations under the protest to the request. If no protest is valves, all of which will be constructed Natural Gas Act (18 CFR 157.205 and filed within the time allowed therefor, on existing right-of-way at the Baker 157.216) for permission and approval to the proposed activity shall be deemed to Compressor Plant in Section 12, T7N, abandon in place a portion of the 12- be authorized effective the day after the R59E, Fallon County, Montana. inch Independence pipeline lateral, time allowed for filing a protest. If a Williston Basin states that Bear Paw has along with related facilities and protest is filed and not withdrawn requested installation of this metering services, all of which are located in Cass within 30 days after the time allowed facility to allow Williston Basin to make deliveries of up to 4,800 Mcf per day to County, Missouri. Williams makes such for filing a protest, the instant request Bear Paw to be used as emergency fuel request under its blanket certificate shall be treated as an application for issued in Docket No. CP82–479–000 at the Big Horn plant. The estimated authorization pursuant to Section 7 of cost of the proposed metering facilities pursuant to Section 7 of the Natural Gas the Natural Gas Act. Act, all as more fully set forth in the is $11,400. The actual cost of the facility Linwood A. Watson, Jr., request on file with the Commission and is 100% reimbursable by Bear Paw. open to public inspection. Acting Secretary. Williston Basin states that the [FR Doc. 97–29943 Filed 11–13–97; 8:45 am] addition of the proposed facilities will Specifically, Williams proposed to BILLING CODE 6717±01±M have no significant effect on its peak abandon in place, and cap day or annual requirements, that the approximately 6.09 miles of the total volumes delivered will not exceed Independence 12-inch lateral pipeline. total volumes authorized prior to this Williams also proposes to abandon in request, that the existing tariff does not place, by sale to Missouri Gas Energy prohibit the addition of new delivery (MGE) approximately 1.95 miles of the points and that there is sufficient Independence 12-inch lateral pipeline, capacity to accomplish deliveries along with related services and without detriment or disadvantage to facilities, and the Raymore town border other customers. 1 The 12-inch pipeline segment proposed to be station. It is stated that the 12-inch Any person or the Commission’s staff Independence pipeline was originally abandoned herein, was certificated in Docket No. G–756, 5 FPC 820, Cities Service Gas Company may, within 45 days after issuance of constructed, to enable Williams to (1946). the instant notice by the Commission, supply the natural gas requirements of 2 Cities Service Gas Company, 30 FPC 1,100 file pursuant to Rule 214 of the MGE, in the Independence, Missouri (1963). Commission’s Procedural Rules (18 CFR Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61109

385.214) a motion to intervene or notice PODRA), contained in Title III of the 7, 1986). As of September 30, 1997, the of intervention and pursuant to Section Omnibus Budget Reconciliation Act of total in escrow subject to the PODRA 157.205 of the Regulations under the 1986, Pub. L. No. 99–509, establishes procedures was $96,366,739. Natural Gas Act (18 CFR 157.205) a certain procedures for the disbursement The OHA has employed the following protest to the request. If no protest is of funds collected by the Department of methodology to determine the amount filed within the time allowed therefor, Energy (hereinafter DOE) pursuant to of excess funds. We took special the proposed activity shall be deemed to the Emergency Petroleum Allocation account of the provision of PODRA be authorized effective the day after the Act of 1973 (hereinafter EPAA) or the which directs that ‘‘primary time allowed for filing a protest. If a Economic Stabilization Act of 1970 consideration [be given] to assuring that protest is filed and not withdrawn (hereinafter ESA). These funds, at all times sufficient funds (including within 30 days after the time allowed commonly referred to as oil overcharge a reasonable reserve) are set aside for for filing a protest, the instant request funds, are monies obtained through making [direct] restitution.’’ Thus, in shall be treated as an application for enforcement actions instituted to proceedings in which refund claims are authorization pursuant to Section 7 of remedy actual or alleged violations of pending, we have on a claim-by-claim the Natural Gas Act. those Acts. basis examined pending claims and PODRA requires the DOE, through the Linwood A. Watson, Jr., established reserves sufficient to pay the Office of Hearings and Appeals Acting Secretary. amount of these claims. The reserves (hereinafter OHA), to conduct [FR Doc. 97–29939 Filed 11–13–97; 8:45 am] also include all refunds ordered by the proceedings under 10 CFR Part 205, BILLING CODE 6717±01±M OHA since the end of the last fiscal year Subpart V, to accept claims for on September 30, 1997, but not yet paid. restitution from the public and to refund For proceedings in which all claims oil overcharge monies to persons DEPARTMENT OF ENERGY have been considered or in which no injured by violations of the EPAA or the claims have been filed, and the deadline Office of Hearings and Appeals ESA. In addition, PODRA requires the for filing claims has passed, all funds Secretary of Energy to determine remaining are excess. Small amounts of Determination of Excess Petroleum annually the amount of oil overcharge interest accrued, until transfer, on funds Violation Escrow Funds for Fiscal Year funds that will not be required for in accounts that were closed (with a 1998 restitution to injured parties in these zero balance) in the fiscal year 1997 refund proceedings and to make this AGENCY: U.S. Department of Energy, PODRA determination (61 FR 58545 excess available to state governments for Office of Hearings and Appeals. (1996)) are included as part of the use in four energy conservation ACTION: Notice of determination of ‘‘excess’’ for fiscal year 1998. No ‘‘other programs. This determination must be excess monies pursuant to the commitments’’ are reflected in the published in the Federal Register Petroleum Overcharge Distribution and reserves. Restitution Act of 1986. within 45 days after the beginning of each fiscal year. The Secretary has As indicated above, the total escrow SUMMARY: The Petroleum Overcharge delegated this responsibility to the OHA account equity subject to PODRA is Distribution and Restitution Act of 1986 Director. $96,366,739. The total amount needed requires the Secretary of Energy to Notice is hereby given that based on as reserves for direct restitution in those determine annually the amount of oil the best currently available information, cases is $75,755,972. When this figure is overcharge funds held in escrow that is $20,610,767 is in excess of the amount subtracted from the former, the in excess of the amount needed to make that is needed to make restitution to remainder—$20,610,767—is the amount restitution to injured parties. Notice is injured parties. in fiscal year 1998 that is ‘‘in excess’’ of hereby given that $20,610,767 of the To arrive at that figure, the OHA has the amount that will be needed to make amounts currently in escrow is reviewed all accounts in which monies restitution to injured persons. The determined to be excess funds for fiscal covered by PODRA are deposited. Appendix to this Notice sets forth for year 1998. Pursuant to the statutory PODRA generally covers all funds now each refund case within the OHA’s directive, these funds will be made in DOE escrow which are derived from jurisdiction the total amount eligible for available to state governments for use in alleged violations of the EPAA or the distribution under PODRA and the specified energy conservation programs. ESA, with certain exclusions. Excluded ‘‘excess’’ amount. FOR FURTHER INFORMATION: Thomas O. are funds which (1) have been identified Accordingly, $20,610,767 will be Mann, Deputy Director, Roger Klurfeld, for indirect restitution in orders issued transferred to a separate account within Assistant Director, Office of Hearings prior to enactment of PODRA; (2) have the United States Treasury and made and Appeals, U.S. Department of been identified for direct restitution in available to the States for use in the Energy, 1000 Independence Avenue, a judicial or administrative order; or (3) designated energy conservation SW., Washington, DC 20585–0107, (202) are attributable to alleged violations of programs in the manner prescribed by 426–1492 [Mann]; (202) 426–1449 regulations governing the pricing of PODRA. [Klurfeld]. crude oil and subject to the settlement SUPPLEMENTARY INFORMATION: The agreement in In re The Department of Dated: November 7, 1997. Petroleum Overcharge Distribution and Energy Stripper Well Exemption George B. Breznay, Restitution Act of 1986 (hereinafter Litigation, M.D.L. No. 378 (D. Kan., July Director, Office of Hearings and Appeals.

AMOUNT AVAILABLE FOR INDIRECT RESTITUTION IN FY 1998

Consent order Equity as of Sept. Amount available Name of company number 30, 1997 in FY 98

ATLANTIC RICHFIELD CO (ARCO) ...... RARH00001Z $11,566,398.41 $7,000,000.00 ENRON CORPORATION ...... 730V00221Z 21,225,255.49 3,200,000.00 TEXACO INC ...... RTXE006A1Z 3,166,580.85 3,166,580.85 61110 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

AMOUNT AVAILABLE FOR INDIRECT RESTITUTION IN FY 1998ÐContinued

Consent order Equity as of Sept. Amount available Name of company number 30, 1997 in FY 98

ANCHOR GASOLINE CORPORATION ...... 740S01247Z 4,821,029.39 1,500,000.00 GETTY OIL COMPANY ...... RGEA00001Z 6,515,165.75 1,500,000.00 EASON OIL COMPANY ...... 740S01314Z 4,771,886.91 1,000,000.00 PERMIAN CORPORATION ...... 650X00246T 1,607,933.32 1,000,000.00 WITCO CHEMICAL CORP ...... 240S00054Z 912,335.34 912,335.34 HOUMA OIL CO ...... 640H10422W 432,725.63 432,725.63 GULF OIL CORPORATION ...... RGFA00001Z 3,914,723.65 400,000.00 ESTE OIL COMPANY ...... 533H00163T 76,895.24 76,895.24 PRODUCT TRACKINGÐPODRA ...... 999DOE005W 68,191.04 68,191.04 G & G OIL COMPANY ...... 550H00332T 59,892.61 59,892.61 KICKAPOO OIL ...... 570H00214T 49,785.49 49,785.49 BELL FUELS INC ...... 570H00195T 41,441.15 41,441.15 RECO PETROLEUM INC ...... 320H00304T 32,290.43 32,290.43 GENERAL PETROLEUM ...... 550H00075T 28,128.31 28,128.31 VERMONT MORGAN CORP ...... 110H00514T 24,729.79 24,729.79 SKINNEY'S INC ...... 400H00227T 19,514.04 19,514.04 CAPITOL 66 OIL COMPANY ...... 422H00238T 19,229.53 19,229.53 MAXWELL OIL CO...... 000H00425Z 18,854.94 18,854.94 LAMPTON±LOVE INC ...... 422T00013T 15,834.29 15,834.29 CUMBERLAND FARMS DAIRY INC ...... 120K00497T 7,567.04 7,567.04 EMPIRE GAS CORPORATION ...... 720T00521Z 7,392.49 7,392.49 SOS MONARCH OIL CORP ...... 240H00498T 7,193.33 7,193.33 N C GINTHER COMPANY ...... 710V03022T 5,983.41 5,983.41 METROPOLITAN PETROLEUM CO, INC ...... 414H00171Z 5,736.27 5,736.27 JEDCO INC ...... 421K00107W 4,326.42 4,326.42 E±Z SERVICE INC ...... 400H00220T 3,722.26 3,722.26 BEACON BAY ENTERPRISES, INC ...... 999K90120T 1,015.95 1,015.95 MOCKABEE GAS & FUEL CO ...... 311H00342W 752.83 752.83 ELWOOD CHEVRON SERVICE ...... 999K90098T 547.67 547.67 DALCO PETROLEUM ...... 660T00642Z 39.86 39.86 MARATHON PETROLEUM CO ...... RMNA00001Z 23.33 23.33 SUNSET BLVD CAR WASH ...... 999K90113T 22.54 22.54 GENERAL EQUITIES, INC...... 110H00527Z 15.41 15.41 QUANTUM CHEMICAL CORPORATION ...... 720V01245Z 0.02 0.02 AOC ACQUISITION CORPORATION ...... RCKH016A1Z 10,089,118.08 0.00 GOOD HOPE REFINERIES INC...... 150S00154Z 3,973,915.80 0.00 GULF STATES OIL & REFINING ...... 6E0S00057T 609,991.91 0.00 HUDSON OIL CO. INC ...... 740S01258W 9,214,807.75 0.00 INTERCOASTAL OIL CO ...... 940X00076T 35,303.15 0.00 KENNY LARSON OIL CO ...... 000H00439W 5,152.10 0.00 MACMILLAN OIL COMPANY, INC ...... 730T00031Z 601,344.51 0.00 OASIS PETROLEUM CORP ...... 940X00217Z 2,174,279.49 0.00 SHELL OIL COMPANY ...... RSHA00001Z 5,670.793.37 0.00 TESORO PETROLEUM CORP ...... BUBBBBBBBB 2,117,333.61 0.00 VESSELS GAS PROCESSING, LTD...... 740V01387W 2,441.538.79 0.00

Totals ...... 96,366,738.99 20,610,767.51

[FR Doc. 97–30004 Filed 11–13–97; 8:45 am] Requests for copies of EPA comments include specific information on water BILLING CODE 6450±01±P can be directed to the Office of quality monitoring, enforcement FEDERAL ACTIVITIES AT (202) 564– measures to ensure full compliance with 7176. An explanation of the ratings the proposed allotment management ENVIRONMENTAL PROTECTION assigned to draft environmental impact plan, and fall back options in case AGENCY statements (EISs) was published in FR adequate funding and resources are not dated April 11, 1997 (62 FR 16154). (ER±FRL±5486±3) obtained or if monitoring indicates Draft EISs continuing decline of rangeland Environmental Impact Statements and conditions. EPA suggested Regulations; Availability of EPA ERP No. D–AFS–K65199–AZ Rating reconsideration of Alternative G or a Comments EC2, Windmill Range Allotment modification of preferred Alternative F Management Plan, Cattle Grazing Use, to address critical resource needs in the Implementation, Coconino National Availability of EPA comments Munds Pocket and Foxboro herd range. prepared October 27, 1997 Through Forest, Mormon Lake, Peaks and Sedona ERP No. D–AFS–K65200–CA Rating October 31, 1997 pursuant to the Ranger Districts, Coconino and Yavapal EC2, San Juan Fuels and Wildlife Environmental Review Process (ERP), County, AZ. under Section 309 of the Clean Air Act Summary: EPA expressed Project, Implementation, Tahoe National and Section 102(2)(c) of the National environmental concerns and Forest, Nevada City Ranger District, Environmental Policy Act as amended. recommeded that the FEIS should Nevada County, CA. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61111

SUMMARY: EPA expressed to Lake Shore Boulevard, COE Section San Luis Obispo County, CA, Due: environmental concerns about potential 10 and 404 Permit, and Coast Guard December 29, 1997, Contact: Tiffany exceedences of the threshold of concern Bridge Permits, in the City of Welch (805) 641–2935. (TOC) in five subwatersheds in the Rochester, Town of Greece and EIS No. 970439, Draft EIS, IBR, CA, analysis area, and recommended that Irondequoit, Monroe County, NY, Programmatic EIS—Central Valley additional road obliterations be added Due: December 15, 1997, Contact: Project Improvement Act (CVPIA) of to the project plan. Harold J. Brown (518) 431–4127. 1992 Implementation, Central Valley, EIS No. 970432, Final EIS, AFS, ID, Trinity, Contra Costa, Alameda, Santa Final EISs Middle Fork Analysis Area Clara and San Benito Counties, CA, ERP No. F–BLM–K67044–CA Soledad Management Plan, Implementation, Due: February 06, 1998, Contact: Alan Mountain Open Pit Leap Leach Gold Nez Perce National Forest, Selway Candlish (916) 978–5190. Mine Project, Construction and Ranger District, Idaho County, ID, EIS No. 970440, Draft Supplement, SCS, Operation, Plan-of-Operations Due: December 15, 1997, Contact: WV, North Fork Hughes River Approval, Mojave, Kern County, CA. Jerome A. Bird (208) 926–4258. Watershed Project, New Information SUMMARY: EPA continued to have EIS No. 970433, Final EIS, FHW, PA, US Concerning Zebra Mussels environmental concerns and 202 Section 700 Corridor, Assessment and Recreational Benefits recommended that BLM assure against Improvements, from PA 63 in Update, Ritchie County, WV, Due: significant impacts to local air quaility Montgomeryville to the PA–611 December 29, 1997, Contact: Lynn from possible aggregate loading and Bypass in Doylestown Township, Shutts (Ext 167) (304) 291–4152. hauling operations. EPA also COE Section 404 Permit and Right-of- EIS No. 970441, Final EIS, AFS, OR, recommended that the Record of Way, Montgomery and Bucks Kalmiopsis Wilderness, Approval for Decision include specific actions for the Counties, PA , Due: December 31, Motorized Vehicular Access to the Mitigation and Monitoring Program. 1997, Contact: Ronald W. Carmichael Private Property within the Chetco (717) 221–3461. Dated: November 10, 1997. River Drainage, Special-Use-Permit EIS No. 970434, Draft EIS, COE, FL, Issuance, Illinois Valley Ranger William D. Dickerson, Sunny Isles (North Miami) Proposed Director, NEPA Compliance Division, Office District, Siskiyou National Forest, Modification to Segment of the Dade Curry County, OR, Due: December 15, of Federal Activities. County Beach Erosion Control and [FR Doc. 97–30022 Filed 11–13–97; 8:45 am] 1997, Contact: Don McLennan (541) Hurricane Protection Project, Dade 592–2166. BILLING CODE 6560±50±U County, FL, Due: December 29, 1997, EIS No. 970442, Draft EIS, USN, CA, Contact: Kenneth Dugger (904) 232– Hunters Point (Former) Naval 1686. Shipyard Disposal and Reuse, ENVIRONMENTAL PROTECTION EIS No. 970435, Final EIS, FRC, MS, Implementation, City of San AGENCY Destin Natural Gas Pipeline Project, Francisco, San Francisco County, CA, Construction and Operation, Six [ER±FRL±5486±2] Due: December 29, 1997, Contact: Major Interstate Pipelines in the Gulf Mary Doyle (650) 244–3024. Environmental Impact Statements; of Mexico, Southern Natural Gas, COE EIS No. 970443, Final EIS, COE, AZ, Notice of Availability Section 10 and 404 Permits, Right-of- Tucson Drainage Area Arizona, Way and Special-Use Permits, MS, Implementation, Reduce Flooding, Responsible Agency: Office of Federal Due: December 15, 1997, Contact: City of Tucson, Pima County, AZ, Activities, General Information (202) Paul McKee (202) 208–1088. 564–7153. EIS No. 970436, Draft EIS, EDA, PA, Due: December 15, 1997, Contact: Weekly receipt of Environmental Lackawanna William Butler (213) 452–3845. Impact Statements Filed November 3, County New Business Park, EIS No. 970444, Final Supplement, 1997 Through November 7, 1997 Development and Operation, Funding NOA, Snapper Grouper Fishery, Pursuant to 40 CFR 1506.9. Support from Economic Development Amendment 8 to the Fishery EIS No. 970429, Draft Supplement, NPS, Administration (EDA) under Title I, Management Plan, Regulatory Impact CA, Yosemite Valley Comprehensive Site Lies Within Moosic Mountain Review, South Atlantic Region, Due: Implementation Plan, General Range, Straddling Jessup and December 15, 1997, Contact: Rolland Management Plan, Yosemite National Olyphant Boroughs, Lackawanna A. Schmitter (301) 713–2239. Park, Mariposa, Madera and County, PA, Due: December 29, 1997, EIS No. 970445, Draft EIS, NPS, CA, Tuolumne Counties, CA, Due: January Contact: Edward L. Hummel (215) Backcounty and Wilderness 13, 1998, Contact: Alan Schmierer 597–6767. Management Plan, General (415) 427–1441. EIS No. 970437, FINAL EIS, FHW, WI, Management Plan Amendment, EIS No. 970430, Draft EIS, AFS, OR, WI-TH–29 (Wisconsin Corridors 2020 Joshua Tree National Park, Riverside Crown Pacific Limited Partnership Project) Improvements, Linking I–94 and San Bernardino Counties, CA, Land Exchange Project, in eastern Dunn to WI-TH–29/CTH J Due: December 29, 1997, Contact: Implementation, Consolidate Land Interchange in south-central Alan Schmierer (415) 427–1441. Ownership and Enhance Future Chippewa, Funding and COE 404 Amended Notices Resource, Deschutes, Fremont and Permit, Dunn and Chippewa Winema National Forests, Deschutes, Counties, WI, Due: December 15, EIS No. 970426, Draft EIS, AFS, KY, Jefferson, Klamath and Lake Counties, 1997, Contact: Johnny M. Gerbitz Daniel Boone National Forest Off- OR, Due: January 9, 1998, Contact: (608) 829–7500. Highway Vehicle (OHV) Management Kathy Farrell (541) 383–5571. EIS No. 970438, Draft EIS, COE, CA, Policy, Modification, Several EIS No. 970431, Final EIS, FHW, NY, Unocal Avila Beach Cleanup Project, Counties, KY, Due: January 09, 1998, Stutson Street BIN–3317120 Over Petroleum Hydrocarbon Contact: Kevin Lawrence (606) 745– Genesee River (PIN 4751.05.121), Contamination, Approval and 3100. from the Interchange of the Lake Implementation, US Army COE Published FR—11–07–97—Due Date Ontario State Parkway and Latta Road Section 10 and 404 Permits Issuance, correction. 61112 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

Dated: November 10, 1997. ([email protected]), 20460, telephone 202/260–7061; Internet: William D. Dickerson, telephone 202–564-6911; for Drinking [email protected]. Director, NEPA Compliance Division, Office Water, William Stelz Dated: November 10, 1997. of Federal Activities. ([email protected]), Dana Minerva, [FR Doc. 97–30023 Filed 11–13–97; 8:45 am] telephone 202–564–6834; for Air Deputy Assistant Administrator, Office of BILLING CODE 6560±50±U Pollution Chemistry and Physics, Urban Water. Air Toxics, and Health Effects and [FR Doc. 97–30016 Filed 11–13–97; 8:45 am] exposures to Particulate Matter and BILLING CODE 6560±50±P ENVIRONMENTAL PROTECTION Associated Air Pollutants is Deran AGENCY Pashayan [FRL±5920±9] ([email protected]), ENVIRONMENTAL PROTECTION telephone 202–564–6913; and for AGENCY Investigator-Initiated Grants: Request Decision-making and Valuation for for Applications Environmental Policy is Deborah [FRL±5921±5] Hanlon AGENCY: Environmental Protection ([email protected]), Agency Announcement and Notice of telephone 202–5646836. Availability of the General Policy on ACTION: Notice of request for Superfund Ability to Pay applications. Dated: November 3, 1997. Approved for publication: Determinations SUMMARY: This notice provides S. A. Lingle, information on the availability of the Acting Assistant Administrator for Research SUMMARY: As part of EPA’s continuing fiscal year 1998 investigator-initiated and Development. commitment to foster fairness in the grants program announcements, in [FR Doc. 97–30018 Filed 11–13–97; 8:45 am] enforcement process, the Agency is issuing this policy to explain what is which the areas of research interest, BILLING CODE 6560±50±P eligibility and submission requirements, necessary for an acceptable ability to evaluation criteria, and implementation pay (ATP) settlement in Superfund schedule are set forth. Grants will be ENVIRONMENTAL PROTECTION cases. It is EPA’s intent to balance the competitively awarded following peer AGENCY need for settling environmental liability review. equitably without jeopardizing the [FRL±5921±9] DATES: Receipt dates vary depending on viability of a business or creating an undue financial hardship for either the specific research area within the Mississippi River/Gulf of Mexico businesses or individuals. The main text solicitation and are listed below. Watershed Nutrient Task Force of the policy document addresses FOR FURTHER INFORMATION CONTACT: U.S. Meeting Environmental Protection Agency, general issues that apply to the ATP National Center for Environmental The U.S. Environmental Protection process and ATP settlements. The Research and Quality Assurance Agency (EPA) Announces the Following policy document also contains two (8703R), 401 M Street SW, Washington Meeting appendices that address issues specific DC 20460, telephone (800) 490–9194. Name: First Meeting of the Mississippi to making ATP determinations for The complete announcement can be River/Gulf of Mexico Watershed Nutrient individuals and businesses. The policy accessed on the Internet from the EPA Task Force. document establishes an ‘‘undue home page: http://www.epa.gov/ncerqa. Time and Date: 9:30 a.m.–5:00 p.m., financial hardship’’ standard for December 4, 1997. determining a party’s ability to pay its SUPPLEMENTARY INFORMATION: In its Place: Key Bridge Marriott, 1401 Lee share of Superfund cleanup costs, and Requests for Applications (RFA) the Highway, Arlington, Virginia 22209, uses a two-part analysis to determine U.S. Environmental Protection Agency telephone 703/524–6400. what is an acceptable ATP settlement (EPA) invites research grant Status: Open to the public, limited only by the space available. The room accommodates amount. The first part of the analysis, applications in the following areas of approximately 150 people. called the ‘‘balance sheet phase,’’ looks special interest to its mission: (1) Purpose: A Task Force consisting of at the assets, liabilities, and owners’ Ecological Indicators, (2) Drinking Federal, State, and Tribal members, will lead equity of the ATP Candidate, calculating Water, (3) Air Pollution Chemistry and an effort to coordinate and support nutrient the amount of money available from Physics, (4) Urban Air Toxics, (5) Health management and hypoxia related activities in excess cash, the sale of assets that are Effects and Exposures to Particulate the Mississippi River and Gulf of Mexico not ordinary and necessary, borrowing Matter and Associated Air Pollutants, watersheds. against assets, and owners’ equity. The and (6) Decision-making and Valuation Matters To Be Discussed: Agenda items second part of the analysis, called the include: eutrophication of large areas of the for Environmental Policy (joint with the ‘‘income and cash flow statement National Science Foundation). Gulf of Mexico associated with drainage of the Mississippi River Basin; economic and phase,’’ looks at the income and Applications must be received as ecological effects of recurring periods of low expenses of the party and generally follows: January 15, 1998, for topic (6); dissolved oxygen (hypoxia) in the Gulf of calculates ‘‘available income’’ for a January 29, 1998, for topics (3) and (5); Mexico; and coordination of activities to Superfund settlement over a five-year February 12, 1998, for topic (4); and reduce the size, severity, and duration of this period. In calculating ‘‘available February 26, 1998 for topics (1) and (2). phenomenon. The public will be afforded an income,’’ the analysis takes into account The RFAs provide relevant opportunity to provide comments on these ‘‘increased future needs’’ (i.e., ordinary issues. Anyone interested in speaking should and necessary expenses that will be background information, summarize contact the person listed below prior to the EPA’s interest in the topic areas, and meeting. incurred by the ATP Candidate that describe the application and review Contact Person for More Information: Dr. have not been incurred in the past or process. Mary Belefski, U.S. EPA, Assessment and that were incurred previously but which Contact person for the Ecological Watershed Protection Division (AWPD), 401 are expected to be significantly greater Indicators RFA is Barbara Levinson M Street, S.W. (4503F), Washington, D.C. than in the past). Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61113

FOR FURTHER INFORMATION CONTACT: Branch, Policy and Program Evaluation Remediation Enforcement, 401 M St., Policy and Guidance Branch, Policy and Division, Office of Site Remediation SW, 2273A, Washington, D.C. 20460 or Program Evaluation Division, Office of Enforcement, 401 M St., SW, 2273A, Bob Brook in the Environmental Site Remediation Enforcement, 401 M Washington, D.C. 20460. Phone: (202) Enforcement Section of the Department St., SW, 2273A, Washington, D.C. 564–5115. The guidance document is of Justice at (202) 514–2738. This 20460. Phone: (202) 564–5115. The also available electronically at http:// addendum is available electronically at policy is available electronically at www.epa.gov/envirosense/oeca/osre/ http://www.epa.gov/envirosense/oeca/ http://www.epa.gov/envirosense/oeca/ osredoc.html. Copies of the policy can osre/osredoc.html. Copies of this osre/osredoc.html. Copies of the policy be ordered from the National Technical document can be ordered from the can be ordered from the National Information Service (NTIS), U.S. National Technical Information Service Technical Information Service (NTIS), Department of Commerce, 5285 Port (NTIS), U.S. Department of Commerce, U.S. Department of Commerce, 5285 Royal Road, Springfield, VA 22161. 5285 Port Royal Road, Springfield, VA Port Royal Road, Springfield, VA 22161. Each order must reference the NTIS 22161. Each order must reference the Each order must reference the NTIS item number, PB98–103146. For NTIS item number, PB98–103138. For item number, PB97–199731. For telephone orders or further information telephone orders or further information telephone orders or further information on placing an order, call NTIS at (703) on placing an order, call NTIS at (703) on placing an order, call NTIS at (703) 487–4650 or (800) 553–NTIS. For orders 487–4650 or (800) 553-NTIS. For orders 487–4650 or (800) 553-NTIS. For orders via E-mail/Internet, send to the via E-mail/Internet, send to the via E-mail/Internet, send to the following address: following address: following address: [email protected]. [email protected]. [email protected]. Dated: September 30, 1997. Dated: September 30, 1997. Dated: September 30, 1997. Steven A. Herman, Steven A. Herman, Barry Breen, Assistant Administrator, Office of Assistant Administrator, Office of Director, Office of Site Remediation Enforcement and Compliance Assurance. Enforcement and Compliance Assurance Enforcement. [FR Doc. 97–30014 Filed 11–13–97; 8:45 am] Environmental Protection Agency. [FR Doc. 97–30011 Filed 11–13–97; 8:45 am] BILLING CODE 6560±50±P [FR Doc. 97–30012 Filed 11–13–97; 8:45 am] BILLING CODE 6560±50±P BILLING CODE 6560±50±P

ENVIRONMENTAL PROTECTION ENVIRONMENTAL PROTECTION AGENCY ENVIRONMENTAL PROTECTION AGENCY AGENCY [FRL±5921±8] [FRL±5921±6] [FRL±5921±7] Announcement and Notice of Announcement and Notice of Availability of an Addendum to the Announcement and Notice of Availability of the Guidance on EPA ``Interim CERCLA Settlement Policy'' Availability of the Interim Policy on Participation in Bankruptcy Cases Issued on December 5, 1984 Settlement of CERCLA Section 106(b)(1) Penalty Claims and Section SUMMARY: The purpose of this guidance SUMMARY: This memorandum is an 107(c)(3) Punitive Damages Claims for is to identify the factors to be addendum to the ‘‘Interim CERCLA Noncompliance with Administrative considered by the Environmental Settlement Policy’’ which was issued by Orders Protection Agency in determining the U.S. Environmental Protection whether to participate in a bankruptcy Agency (EPA) and the U.S. Department SUMMARY: This policy is intended to case, including whether to pursue of Justice (DOJ) on December 5, 1984 (50 make calculation of civil penalties and collection of costs or penalties against FR 5024, February 5, 1985). That policy punitive damages under the debtors who have liability under the sets forth the general principles Comprehensive Environmental Comprehensive Environmental governing settlements with potentially Response, Compensation, and Liability Response, Compensation, and Liability responsible parties under the Act (CERCLA) for purposes of Act (CERCLA) or other environmental Comprehensive Environmental settlement a fair and effective process statutes. This guidance also addresses Response, Compensation, and Liability for deterring noncompliance with EPA’s issues in bankruptcy cases relating to Act (CERCLA). On June 3, 1996, EPA administrative orders. The policy the abandonment of contaminated issued an ‘‘Interim Guidance on Orphan contains an innovative approach toward property, cleanup activities under Share Compensation for Settlors of penalty calculation which takes into CERCLA on property included in the Remedial Design/Remedial Action and account factors particularly relevant to bankruptcy estate, and the impact of the Non-Time-Critical Removals.’’ Because CERCLA cases by incorporating both automatic stay on different types of that guidance document does not apply harm and equitable adjustment factors administrative and judicial enforcement to CERCLA cost recovery settlements in into a single ‘‘harm-recalcitrance’’ activities. It supersedes the ‘‘Guidance which the parties are not agreeing to matrix. Factors such as the Regarding CERCLA Enforcement perform remedial design/remedial noncomplier’s degree of responsibility Against Bankrupt Parties,’’ OSWER action work or a non-time critical for the site and ability to finance Directive #9832.7 (May 24, 1984) and removal, EPA and DOJ are issuing the compliance with an administrative the ‘‘Revised Hazardous Waste addendum to provide the Regions with order are considered early in the Bankruptcy Guidance,’’ OSWER direction for addressing potential calculation process to encourage Directive #9832.8 (May 23, 1986). compromises of CERCLA cost recovery companies that have greater FURTHER INFORMATION CONTACT: Andrea claims due to the existence of a responsibility for the creation of the Madigan, USEPA Region IV, 61 Forsyth significant orphan share. CERCLA site and/or are better able to Street, Atlanta, GA 30303. Phone: (404) FOR FURTHER INFORMATION CONTACT: finance a cleanup to step forward and 562–9518. Copies of the document are Laura Bulatao (202–564–6028) or Deniz work with other viable potentially available from the Policy and Guidance Ergener (202–564–4233), Office of Site responsible parties to take responsibility 61114 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices for cleanups. The policy provides for ENVIRONMENTAL PROTECTION inappropriate, improper, or inadequate. smaller penalties for noncompliance by AGENCY The Agency’s response to any comments received will be available for public smaller contributors to Superfund sites, [FRL±5921±2] companies with limited financial inspection at the EPA Superfund Record resources, and less sophisticated parties. Proposed CERCLA Administrative De Center, 999 18th Street, 5th Floor, in This policy reserves the highest Minimis SettlementÐChemical Denver, Colorado. Commenters may penalties for the most egregious Handling Corporation Site, Jefferson request an opportunity for a public offenders—the noncompliers who are County, Colorado meeting in the affected area in financially capable of performing, who accordance with Section 7003(d) of AGENCY: Environmental Protection RCRA, 42 U.S.C. 6973(d). are most responsible for creating the Agency. Superfund site, and whose failure to DATES: Comments must be submitted on ACTION: Notice and Request for Public perform results in actual harm to human or before December 15, 1997. Comment. health, the environment, or EPA’s ADDRESSES: The proposed settlement enforcement and response program, or SUMMARY: In accordance with the and additional background information results in serious inequities to requirements of Section 122(i) of the relating to the settlement are available complying parties. Consistent with the Comprehensive Environmental for public inspection at the EPA Agency’s ‘‘Policy on Civil Penalties’’ Response, Compensation, and Liability Superfund Record Center, 999 18th (Feb. 16, 1984), this policy should be Act, as amended (‘‘CERCLA’’), 42 U.S.C. Street, 5th Floor, in Denver, Colorado. used only in cases where the 9622(i), notice is hereby given of a Comments and requests for a copy of the government is settling civil penalty and proposed administrative de minimis proposed settlement should be punitive damages claims. settlement under section 122(g) of addressed to Carol Pokorny, CERCLA, 42 U.S.C. 9622(g), concerning Enforcement Specialist (8ENF–T), FURTHER INFORMATION CONTACT: Steven the Chemical Handling Corporation site Technical Enforcement Program, U.S. Rollin, Policy and Guidance Branch, located at 11811 Upham Street, near the Environmental Protection Agency, 999 Policy and Program Evaluation Division, City of Broomfield, in unincorporated 18th Street, Suite 500, Denver, Colorado Office of Site Remediation Enforcement, Jefferson County, Colorado (‘‘Site’’), 80202–2466, and should reference the 401 M St., SW, 2273A, Washington, D.C. with the settling parties listed in the Chemical Handling Corporation Site, 20460. Phone: (202) 564–5142. The Supplementary Information portion of Jefferson County, Colorado and EPA policy is available electronically at this notice. The settlement, embodied in Docket No. CERCLA VIII–97–05. a proposed Administrative Order on http://www.epa.gov/envirosense/oeca/ FOR FURTHER INFORMATION CONTACT: Consent (‘‘AOC’’), is designed to resolve osre/osredoc.html. Copies of this Carol Pokorny, Enforcement Specialist document can be ordered from the fully each settling party’s liability at the Site through a covenant not to sue under (8ENF–T), Technical Enforcement National Technical Information Service Program, U.S. Environmental Protection (NTIS), U.S. Department of Commerce, sections 106 and 107 of CERCLA, 42 U.S.C. 9606 and 9607, and Section 7003 Agency, 999 18th Street, Suite 500, 5285 Port Royal Road, Springfield, VA of the Resource Conservation and Denver, Colorado 80202–2466, (303) 22161. Each order must reference the Recovery Act (‘‘RCRA’’), 42 U.S.C. 6973. 312–6970. NTIS item number, PB97–208086. For The proposed AOC requires the SUPPLEMENTARY INFORMATION: Notice of telephone orders or further information Potentially Responsible Parties (‘‘PRPs’’) proposed administrative de minimis on placing an order, call NTIS at (703) listed in the Supplementary Information settlement under section 122(g) of 487–4650 or (800) 553-NTIS. For orders section below to pay an aggregate total CERCLA, 42 U.S.C. 9622(g): In via E-mail/Internet, send to the of $131,646.24 to address their liability accordance with Section 122(i) of following address: to the United States related to response CERCLA, 42 U.S.C. 9622(i), notice is [email protected]. actions taken at the Site. hereby given that the terms of the Dated September 30, 1997. OPPORTUNITY FOR COMMENT: For thirty Administrative Order on Consent (‘‘AOC’’) have been agreed to by the Steven A. Herman, (30) days following the date of publication of this notice, the Agency following settling parties, for the Assistant Administrator, Office of will consider all comments received and following amounts (where the name of Enforcement and Compliance Assurance. may modify or withdraw its consent to a party is followed by a ‘‘/,’’ that [FR Doc. 97–30013 Filed 11–13–97; 8:45 am] the settlement if comments received indicates that the name following the BILLING CODE 6560±50±P disclose facts or considerations which ‘‘/’’ is the name of the party as it appears indicate that the settlement is on the AOC signature page):

AOC CERCLA, VIII±97±05

Settlement Name of party amount

ADK Pressure Equipment Corp/Joslyn Company, LLC ...... $2,129.10 Advantage Advertising ...... 263.72 Antique Refinisher, Inc ...... 263.72 B.F. Pirelli's/Brad Fukui ...... 263.72 Boyd Distributing/Boyd Investment Co ...... 131.86 Cascade Collision/Cascade Collision, Inc ...... 131.86 Chemcraft Sadolin International/Robert Schwartz ...... 5,221.61 Coat Rite/Coats and Colors, Inc ...... 145.04 Don's Auto Body ...... 580.66 E/M Corporation/West Lafayette Corporation ...... 8,148.88 E.T.I. Tank Cleaners/Southern Tank Cleaning, Inc ...... 725.22 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61115

AOC CERCLA, VIII±97±05ÐContinued

Settlement Name of party amount

Easter-Owens Electric Co ...... 4,180.77 Econo Auto Painting (Little Rock) ...... 2,535.56 Econo Auto Painting (Little Rock) Econo Auto Painting (Sherwood) Ed Black's Chevrolet Center/Casa Chevrolet ...... 1,305.40 Front Range Dodge/Front Range Auto, Inc ...... 395.58 Golden Geophysical/Fairfield Industries Incorporated ...... 967.77 GTE Maintenance Department/GTE Southwest, Inc ...... 19,581.04 Hallmark Cabinets ...... 638.73 Harpers/FHL Group ...... 4,206.30 Hoffmantown Body Shop ...... 851.64 J.M. Martinac Shipbuilding/J.M. Martinac Shipbuilding Corporation ...... 12,348.76 Kevin's Body Shop/Kevin's Auto Body and Paint ...... 851.64 King Fiber Glass Corp., Fiber Resin Supply Div./CMI/Composite Materials Inc ...... 10,026.11 Kresco Industrial Coatings/RFI Industries Inc ...... 263.72 Lazer Products/Paper Manufacturers Company ...... 263.72 Martin Marrietta ISG/Lockheed Martin ...... 145.04 Metaltech Industries, Inc ...... 1,374.24 New Mexico State Land Office ...... 92.30 Odyssey Transportation/Odyssey Transportation Inc., of Nevada ...... 741.71 Pacific Enterprises Oil Co ...... 870.27 Partridge Industrial Coatings ...... 5,535.65 Peachwood HOA, Inc./Peachwood Homeowners Association ...... 448.32 Pollard Friendly Motor Co ...... 580.66 Precision Body Shop Volkswagen/Suzuki/Precision Sales and Service Inc./RDS Inc ...... 1,793.28 Precision Prefinish Inc./Precision Prefinishing, Inc ...... 3,336.03 Rovalve, Technaflow/Technaflow, Inc ...... 5,366.66 Smith.Wolf Construction ...... 5,037.01 Sorrells Body Shop, Inc ...... 212.91 Spradley Lincoln Mercury ...... 395.58 Starr Corp./Starr Corp. International ...... 387.11 Starwood Air Service/Aspen Base Operation, Inc ...... 263.72 Teledyne Getz (Denseo)/Teledyne Water Pik, division of Teledyne Industries, Inc ...... 9,871.27 Teledyne Pines (H & H Tool)/Edward W. Slavin, Jr ...... 425.82 Television Technology, Inc./LarcanÐTTC ...... 4,471.10 Town & Country Auto Center/Emanuel Bugelli ...... 395.58 Twin City Optical/Twin City Optical Co., Inc ...... 395.58 United ExpressÐAir Wisconsin/Air Wisconsin Airlines Corporation ...... 4,645.30 Verticel Honeycomb/Hexacomb Corporation ...... 2,109.74 Western Slope Refining ...... 6,329.23

Total ...... 131,646.24

By the terms of the proposed AOC, generators, both de minimis and non-de to 9% or 60% (see discussion below) of the setting parties will pay a combined minimis. the Base Amount. The cost per gallon of $131,646.24 to the Hazardous Substance In exchange for payment, EPA will $2.1494287739 was derived by dividing Superfund. This payment represents provide the settling parties with a the estimated total response costs at the approximately 4.6% of the covenant not to sue under sections 106 time of calculation of $2,887,862.00 by $2,859,862.00 in response costs that and 107(a) of CERCLA, 42 U.S.C. 9606 the 1,193,613.15 total gallons of EPA has incurred through March 31, and 9607(a), and under section 7003 of hazardous substances manifested to the 1997. EPA estimates that the total the Solid Waste Disposal Act, as Site. response costs incurred and to be amended (also known as the Resource To be eligible for the de minimis incurred at or in connection with the Conservation and Recovery Act), which settlement, each PRP must have Site by the United States and by private will resolve fully each settling party’s contributed no more than .7% of the parties is between $2,926,862.00 and liability at the Site. total volume of hazardous substances $3,000,000.00. To date, approximately The amount that each individual PRP manifested to the Site. PRPs that were $1,000,000.00 of these response costs will pay, as shown above, was based identified or located subsequent to have been recovered, primarily through upon the number of gallons of EPA’s first de minimis settlement offer earlier de minimis settlements. The hazardous substances manifested to the in March 1996 were allowed to setting parties under this AOC arranged Site. The total amount of settlement participate in the current proposed for the disposal of 42,351.25 gallons of dollars owed by each party to the settlement at the 9% premium level. hazardous substances to the Site. This settlement was arrived at by multiplying PRPs that had been offered the amount represents approximately 3.55% the cost per gallon by the number of opportunity to participate in EPA’s first of the 1,193,613.15 gallons of hazardous gallons a party manifested to the Site de minimis settlement offer in March substances manifested to the Site by all (‘‘Base Amount’’) and then adding to 1996, but chose not to do so, have been this amount a premium payment equal allowed to participate in the current 61116 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices proposed de minimis settlement at a Site is a 44 acre Truck Stop facility New Mexico and the Pueblos of Santa 60% premium level. consisting of several buildings and Clara, San Juan, Pojoaque, Nambe and It is so agreed: parking lots. The Site is bordered Picuris. A Petroleum UST System is an Dated: November 5, 1997. immediately to the north by a creek and underground storage tank system that Carol Rushin, a truck stop, to the south by Interstate contains petroleum or a mixture of Highway 94, to the east by an interstate petroleum with de minimis quantities of Assistant Regional Administrator, Office of Enforcement, Compliance and Environmental highway exchange, and to the west by other regulated substances. Such Justice, U.S. Environmental Protection Ripley Street. On July 18, 1996, several systems include those containing motor Agency, Region VIII. drums were discovered in the rear of the fuels, jet fuels, distillate fuel oils, [FR Doc. 97–30031 Filed 11–13–97; 8:45 am] property by Mr. Jack Danskins, Regional residual fuel oils, lubricants, petroleum Manager of Welsh Oil, Inc. He observed BILLING CODE 6560±50±M solvents and used oils. The permits seven 55-gallon drums, six 30-gallon place limits on benzene, Total BTEX drums, and sixteen 5-gallon containers. and pH for all discharges, as well as ENVIRONMENTAL PROTECTION There was spilled material from one of limits on polynuclear aromatic AGENCY the 5-gallon containers which covered hydrocarbons (PAH) for discharges from an approximate two-square-foot area. cleanups of Petroleum UST Systems [FRL±5920±2] Welsh Oil, Inc., contracted OSI other than gasoline, jet fuel and Environmental, Inc., for assistance Proposed Administrative Order on kerosene. Additional limits include (stabilization of the materials). After Consent With Compromise of CERCLA those on lead and Total Petroleum U.S. EPA and the Indian a Department Response and Oversight Costs Hydrocarbons in the Texas permit, lead of Environmental Management (IDEM) and TOC in the Louisiana permit, Total AGENCY: U.S. Environmental Protection were contacted, and had sampled and Organic Carbon and Total Phenols in Agency (USEPA). assessed the situation, U.S. EPA the Oklahoma permit, and lead, ACTION: Proposed AOC. contacted the named Respondent parties Chemical Oxygen Demand, No Visible (due to some of the containers bearing Oil Sheen, as well as a biomonitoring SUMMARY: U.S. EPA is proposing to sign their companies names) and negotiated requirement, in the New Mexico permit. and issue an Administrative Order on an Administrative Order on Consent for DATES: The limits and monitoring Consent (AOC) under Section 106 of the remainder of the removal action. requirements in these permits shall CERCLA for a removal action at the A 30-day period, beginning on the become effective December 15, 1997. Lake (Petro) Station Superfund Site. date of publication, is open pursuant to FOR FURTHER INFORMATION CONTACT: Ms. Respondents have agreed to perform a 42 U.S.C. section 122(i) of CERCLA for Wilma Turner, EPA Region 6 1445 Ross full clean up, in return for USEPA comments on the proposed settlement. Avenue, Dallas Texas 75202–2733, waiving response and oversight costs of Comments should be sent to Ms. telephone (214) 665–7516. Copies of the approximately $20,000. U.S. EPA Today Noemi Emeric of the Office of Public complete response to comments may be is proposing to sign and issue this AOC Affairs (P–19J), U.S. Environmental obtained from Ms. Turner. The general because it achieves a necessary removal Protection Agency, Region V, 77 W. permits and response to comments may action at a Site where there was Jackson Boulevard, Chicago, Illinois be found on the Internet at http:// problematic historical evidence of 60604. www.epa.gov/earth1r6/6wq/6wq.htm. liability. Thomas Turner, DATES: Comments on this proposed Assistant Regional Counsel, United States SUPPLEMENTARY INFORMATION: Regulated settlement must be received by Environmental Protection Agency. categories and entities include: December 15, 1997. [FR Doc. 97–30015 Filed 11–13–97; 8:45 am] ADDRESSES: Copies of the proposed BILLING CODE 6560±50±M Category Examples of regu- settlement are available at the following lated entities address for review: (It is recommended ENVIRONMENTAL PROTECTION Industry ...... Operators of facilities that you telephone Ms. Noemi Emeric at discharging waste (312) 886–0995 before visiting the AGENCY waters resulting Region V Office). Ms. Noemi Emeric, [FRL±5920±5] from the cleanup of OPA (P19–J), U.S. Environmental underground stor- Protection Agency, Region V, Office of Final NPDES General Permits for age tank systems Superfund, Removal and Enforcement Discharges Resulting From that contain petro- Response Branch, 77 W. Jackson Blvd., Implementing Corrective Action Plans leum substances, for Cleanup of Petroleum UST Systems such as motor Chicago, Illinois 60604. fuels, jet fuels and Comments on this proposed in Texas (TXG830000), Louisiana fuel oils. settlement should be addressed to: (LAG830000), Oklahoma (OKG830000) (Please submit an original and three and New Mexico (NMG830000) This table is not intended to be copies, if possible) Ms. Noemi Emeric, AGENCY: Environmental Protection exhaustive, but rather provides a guide Community Relations Coordinator, Agency (EPA). for readers regarding entities likely to be Office of Public Affairs, U.S. regulated by this action. This table lists Environmental Protection Agency, ACTION: Final issuance of NPDES general permits. the types of entities that EPA is now Region V, 77 W. Jackson Boulevard (P– aware could potentially be regulated by 19J), Chicago, Illinois 60604, (312) 886– SUMMARY: EPA Region 6 today issues this action. Other types of entities not 0995. National Pollutant Discharge listed in the table could also be FOR FURTHER INFORMATION CONTACT: Ms. Elimination System (NPDES) general regulated. To determine whether your Noemi Emeric, Office of Public Affairs, permits authorizing discharges resulting (facility, company, business, at (312) 886–0995. from implementing Corrective Action organization, etc.) is regulated by this SUPPLEMENTARY INFORMATION: The Lake Plans for the cleanup of Petroleum UST action, you should carefully examine (Petro) Station Truck Stop Superfund Systems in Texas, Louisiana, Oklahoma, the applicability criteria in Part I, Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61117

Section A.1 of these permits. If you have Other Legal Requirements OMB under the provisions of the questions regarding the applicability of Paperwork Reduction Act, 44 U.S.C. A. State Certification this action to a particular entity, consult 3501 et seq., in submission made for the the person listed in the preceding FOR Under section 401(a)(1) of the Act, NPDES permit program and assigned FURTHER INFORMATION CONTACT section. EPA may not issue an NPDES permit OMB control numbers 2040–0086 until the State in which the discharge (NPDES permit application) and 2040– Pursuant to section 402 of the Clean will originate grants or waives 0004 (discharge monitoring reports). Water Act (CWA), 33 U.S.C. section certification to ensure compliance with 1342, EPA proposed and solicited appropriate requirements of the Act and F. Regulatory Flexibility Act public comment on NPDES General State law. The Region has received The Regulatory Flexibility Act, 5 Permits TXG830000, LAG830000, certification from the Texas Natural U.S.C. 601 et seq, requires that EPA OKG830000 and NMG830000 at 61 FR Resources Conservation Commission for prepare a regulatory flexibility analysis 37894 (July 22, 1996). The comment TXG830000, the Louisiana Department for regulations that have a significant period closed on September 20, 1996. of Natural Resources for LAG830000 impact on a substantial number of small Region 6 received written comments and the New Mexico Environment entities. As discussed previously in the from Texas Natural Resources Department for NMG830000. In Fact Sheet for the proposed permits, Conservation Commission, Louisiana addition, certification was received by compliance with the permit Department of Environmental Quality, the Pueblo of San Juan, and requirements will not result in a Oklahoma Department of Environmental certifications with conditions were significant impact on dischargers, Quality, Louisiana Mid-Continent Oil received by the Pueblos of Santa Clara including small businesses, covered by and Gas Association, Texas Mid- and Pojoaque. The conditions of these these permits. This lack of significant Continent Oil and Gas Association, certifications and the changes made to impact is due, in part, to the State American Petroleum Institute and the permit requirements applying to Reimbursement Fund’s reimbursement Amoco Corporation. discharges at these Pueblos are to the discharger of all NPDES permit discussed in the Supplemental EPA Region 6 has considered all compliance costs, except for a small Information section, above. Certification deductible amount. EPA Region 6 comments received. In response to the was waived by the Oklahoma therefore certifies, pursuant to the comments, minor changes were made in Department of Environmental Quality provisions of 5 U.S.C. 605(b), that the the Texas and Louisiana permits and for OKG830000 and by the Pueblos of permits issued today will not have a some monitoring frequency changes Nambe and Picuris. Certification was significant impact on a substantial were made in the Oklahoma permit. denied by the Pueblos of Sandia and number of small entities. Several changes were made to the Isleta. As a result of these certification permits for the Santa Clara and denials, the general permits will not Authorization To Discharge Under the Pojoaque Pueblos as a result of cover discharges at the Pueblos of National Pollutant Discharge conditional certifications received from Sandia and Isleta. Elimination System these Pueblos. The Colorado River B. Endangered Species Act In compliance with the provisions of Salinity Standards requirements were the Federal Water Pollution Control Act, removed from the Santa Clara and The permit limits are sufficiently as amended (33 U.S.C. 1251 et seq: the Pojoaque Pueblo permits. In addition, stringent to assure state water quality ‘‘Act’’), these permits authorize the COD limit was removed and a Total standards, both for aquatic life discharges to Waters of the United Phenols limit was added to the Santa protection and human health protection, States resulting from the cleanup of Clara Pueblo permit. will be met. The effluent limitations Petroleum UST Systems (as defined in established in these permits ensure 40 CFR 280) in Texas, Louisiana, Most of the commentors requested protection of aquatic life and increasing the benzene and BTEX limits Oklahoma, New Mexico and the Pueblos maintenance of the receiving water as of Santa Clara, San Juan, Pojoaque, to those contained in current state- an aquatic habitat. The Region finds that Nambe and Picuris in New Mexico. issued permits. Louisiana Department of adoption of these permits is unlikely to These permits do not authorize such Environmental Quality (LDEQ) adversely affect any threatened or discharges in the Pueblos of Sandia and commented that the overall influent and endangered species or its critical Isleta in New Mexico. The discharges effluent averages for benzene and BTEX habitat. EPA received written are authorized in accordance with from LDEQ data were higher than the concurrence from the United States Fish effluent limitations and other conditions assumptions and the limits in the and Wildlife Service. set forth in Parts I and II of these proposed permits. At EPA’s request, C. Historic Preservation Act permits. they submitted these data to the Region. Facilities which adversely affect In order for discharges to be EPA declines to increase the BAT limits authorized by these permits, operators from those that were proposed. The properties listed or eligible for listing in the National Register of Historical of facilities discharging waste waters administrative record supports the BAT resulting from the cleanup of Petroleum limits for benzene and BTEX as Places are not authorized to discharge under this permit. UST Systems must submit written proposed, as does the large body of data notification to the Regional submitted by LDEQ. An examination of D. Executive Order 12866 Administrator that they intend to be the nearly 2000 LDEQ data points each The Office of Management and Budget covered (See Part I.A.2). Unless for both benzene and BTEX showed the (OMB) has exempted this action from otherwise notified in writing by the proposed permit limits could be met the the review requirements of Executive Regional Administrator after submission vast majority of the time. When the Order 12866. of the notification, operators requesting proposed limits were not being met, coverage are authorized to discharge they were generally very high levels and E. Paperwork Reduction Act under these general permits. Operators caused by treatment system The information collection required who fail to notify the Regional malfunctions. by this permit has been approved by Administrator of intent to be covered 61118 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices are not authorized to discharge under residual fuel oils, lubricants, petroleum 3. Termination of Operations these general permits. solvents and used oils. Facilities which adversely affect Where all discharges associated with properties listed or eligible for listing in 2. Notification Requirements activities authorized by this permit are the National Register of Historic Places Dischargers desiring coverage under eliminated, or where the operator of the are not authorized to discharge under these general permits must submit a discharge associated with activity at a these permits. Notice of Intent (NOI) which shall facility changes, the operator of the These permits shall become effective include the legal name and address of facility must submit a Notice of at midnight, Standard Time on the operator, the location of the Termination that is signed in December 15, 1997. discharge (including the street address, accordance with Part II.D.11 of this These permits and the authorization if applicable, and county of the facility permit. The Notice of Termination shall to discharge shall expire at midnight, for which the notification is submitted), include the following information: legal Central Standard Time on December 16, the name of the receiving water, and a name, mailing address and telephone 2002. description of the activity and the number of the operator; the facility identification number assigned by the Signed this 28th day of October, 1997. pollutant source (for example, gasoline, diesel, etc.). The NOI shall also include Agency; and the location of the Oscar Ramirez, Jr., discharge. Deputy Director, Water Quality Protection the application/permit number if an Division, EPA Region 6. application for an individual NPDES Section B permit has previously been submitted Part I. Requirements for NPDES Permits for the facility of if an individual 1. Any operator authorized by these Section A. Permit Applicability and NPDES permit has been previously been permits may request to be excluded Coverage Conditions issued to the facility. The NOI shall be from the coverage under these general submitted (1) for existing discharges, permits by applying for an individual 1. Discharges Covered within 30 days of the effective date of permit. The operator shall submit an Discharges covered by these permits these permits, (2) for new discharges, at application together with the reasons are discharges to Waters of the United least fourteen (14) days prior to supporting the request to the Regional States resulting from implementing commencement of discharge. Administrator. corrective action plans, as required by All notifications of intent to be 2. When an individual NPDES permit 40 CFR Part 280, for cleanup of ground covered and any subsequent reports is issued to an operator otherwise water contaminated by releases from shall be sent to the following address: subject to these general permits, the Petroleum UST Systems. A Petroleum Customer Service Branch (6WQ–C), U.S. applicability of the general permit to the UST System is defined in 40 CFR Part Environmental Protection Agency, permittee is automatically terminated 280 as an underground storage tank Region 6, P.O. Box 50625, Dallas, TX on the effective date of the individual system that contains petroleum or a 75250. permit. mixture of petroleum with de minimis Upon receipt of the NOI, the facility Section C. General Permit Limits quantities of other regulated substances. will be notified of its specific facility Such systems include those containing identification number that must be used 1. Permit Conditions Applicable to motor fuels, jet fuels, distillate fuel oils, on all correspondence with the Agency. TXG830000

Daily max Flow Daily avg estimate

Benzene ...... 5 ug/l (1) ...... 5 ug/l (1) Total BTEX ...... 100 ug/l (2) ...... 100 ug/l (2) Total Petroleum Hydrocarbons ...... 15 mg/l (3) ...... 15 mg/l (3) Total Lead ...... 250 ug/l ...... 250 ug/l Polynuclear Aromatic Hydrocarbons ...... 10 ug/l (4) ...... 10 ug/l (4) pH 6.0±9.0 Std. Units

Monitoring shall be 1/week using grab subsequent non compliance occurs, the containing only gasoline, jet fuel and/or samples, except for Polynuclear frequency shall revert to 1/month. kerosene. The Daily Max value of any of Aromatic Hydrocarbons (PAH’s). If Flow shall be monitored 1/week. the following PAH’s shall not exceed 10 compliance with the limit is (1) For Discharge Monitoring Report ug/l: acenaphthene, acenaphthylene, demonstrated for at least 6 months, the calculations and reporting requirements anthracene, benzo(a)anthracene, minimum frequency shall be reduced to for benzene, analytical test results less benzo(b)fluoranthene, 2/month upon the permittee’s than 10 ug/l may be reported as zero. benzo(k)fluoranthene, submission of a certification of such (2) BTEX shall be measured as the benzo(ghi)perylene, benzo(a)pyrene, compliance. If a subsequent non sum of benzene, toluene, ethylbenzene, chrysene, dibenzo(a,h)anthracene, compliance occurs, the frequency shall and xylenes. EPA Method 8020 shall be fluoranthene, fluorene, revert to 1/week until another 6 month used for the measurement of xylenes indeno(1,2,3,cd)pyrene, naphthalene, including ortho-, meta-, and para- period of compliance occurs. phenanthrene, pyrene. PAH monitoring shall be 1/month xylenes. using grab samples. If compliance with (3) Shall be measured using EPA 2. Permit Conditions Applicable to the limits is demonstrated for at least 6 Method 418.1. LAG830000 months, the minimum frequency shall (4) The Daily Max limit and be reduced to once per 3 months upon monitoring requirement for PAH’s do the permittee’s submission of a not apply to discharges from the certification of such compliance. If a cleanup of Petroleum UST Systems Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61119

Daily max Flow Monthly avg estimate

Benzene ...... 5 ug/l (1) ...... 5 ug/l (1) Total BTEX ...... 100 ug/l (2) ...... 100 ug/l (2) Total Lead ...... 50 ug/l ...... 50 ug/l TOC ...... 50 mg/l ...... 50 mg/l Polynuclear Aromatic Hydrocarbons ...... 10 ug/l (3) ...... 10 ug/l (3) pH 6.0Ð9.0 Std. Units

Monitoring shall be 1/week using grab requirements corresponding to those (3) The limits and monitoring samples, except for PAH’s. After listed above applying except the requirements for PAH’s do not apply to demonstrating permit limit compliance frequency after 4 consecutive months of discharges from the cleanup of for 4 consecutive weeks, the frequency compliance is 1/quarter and a violation Petroleum UST Systems containing only shall be reduced to 1/month upon the reverting the frequency to 1/month until gasoline, jet fuel and/or kerosene. The permittee’s submission of a certification 4 consecutive months of compliance are Daily Avg and Daily Max value of any of such compliance. After a subsequent achieved. of the following PAH’s shall not exceed limit violation, the frequency reverts Flow shall be monitored 1/week. 10 µg/l: acenaphthene, acenaphthylene, week until another 4 week compliance (1) For Discharge Monitoring Report anthracene, benzo(a)anthracene, period is demonstrated. During the first calculations and reporting requirements benzo(b)fluoranthene, 4 weeks of discharge, however, a limit for benzene, analytical test results less benzo(k)fluoranthene, violation increases frequency to daily than 10 µg/l may be reported as zero. benzo(ghi)perylene, benzo(a)pyrene, chrysene, dibenzo(a,h)anthracene, until a sample demonstrates (2) BTEX shall be measured as the fluoranthene, fluorene, compliance, after which it will revert to sum of benzene, toluene, ethylbenzene, indeno(1,2,3,cd)pyrene, naphthalene, 1/week for the remainder of the initial and xylenes. EPA Method 8020 shall be phenanthrene, pyrene. 4 week discharge period. used for the measurement of xylenes PAH monitoring shall be 1/month including ortho-, meta-, and para- 3. Permit Conditions Applicable to using grab samples with the xylenes. OKG830000

Daily max Flow Daily avg estimate

Benzene ...... 5 µg/l (1) ...... 5 µg/l (1) Total BTEX ...... 100 µg/l (2) ...... 100 µg/l (2) Polynuclear Aromatic Hydrocarbons ...... 10 µg/l (3) ...... 10 µg/l (3) Total Phenols ...... 0.15 mg/l ...... 0.25 mg/l Total Organic Carbon ...... 75 mg/l ...... 95 mg/1 pH 6.5—9.0 Std. Units for benzene, analytical test results less 10 ug/l: acenaphthene, acenaphthylene, Monitoring shall be once per week than 10 ug/l may be reported as zero. anthracene, benzo(a)anthracene, using grab samples, except for PAH’s. (2) BTEX shall be measured as the benzo(b)fluoranthene, After demonstrating permit limit sum of benzene, toluene, ethylbenzene, benzo(k)fluoranthene, compliance for six consecutive months, and xylenes. EPA Method 8020 shall be benzo(ghi)perylene, benzo(a)pyrene, the minimum frequency will be reduced used for the measurement of xylenes chrysene, dibenzo(a,h)anthracene, to two per month upon the permittees including ortho-, meta-, and para- fluoranthene, fluorene, submission of a certification of such xylenes. indeno(1,2,3,cd)pyrene, naphthalene, compliance. If a subsequent violation (3) The limits and monitoring phenanthrene, pyrene. occurs, the frequency shall revert to requirements for PAH’s do not apply to once per week. discharges from the cleanup of 4. Permit Conditions Applicable to PAH’s shall be monitored 1/month. Petroleum UST Systems containing only NMG830000 for the State of New Flow shall be monitored daily. gasoline, jet fuel and/or kerosene. The Mexico and the Pueblos of Santa Clara, (1) For Discharge Monitoring Report Daily Avg and Daily Max value of any San Juan, Pojoaque, Nambe and Picuris calculations and reporting requirements of the following PAH’s shall not exceed a. Permit Limits

Daily max Flow Daily avg estimate

Benzene ...... 5 ug/l (1) ...... 5 ug/l (1) Total BTEX ...... 100 ug/l (2) ...... 100 ug/l (2) Polynuclear Aromatic Hydrocarbons ...... 10 ug/l (3) ...... 10 ug/l (3) pH 6.0Ð 9.0 Std. Units Chemical Oxygen Demand (COD)(4) ...... 125 mg/l ...... 125 mg/l Total Lead ...... 50 ug/l ...... 50 ug/l Total Phenols (5) ...... 4.6 ug/l ...... 4.6 ug/l No Visible Oil Sheen 61120 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

There shall be no discharge of floating container of at least 500 ml capacity. the following PAH’s shall not exceed 10 solids or visible foam in other than trace The Oil Sheen observations must be ug/l: acenaphthene, acenaphthylene, amounts. reported and recorded. anthracene, benzo(a)anthracene, All facilities located within the (1) For Discharge Monitoring Report benzo(b)fluoranthene, calculations and reporting requirements Colorado River System shall comply benzo(k)fluoranthene, for benzene, analytical test results less with the Colorado River Salinity Control benzo(ghi)perylene, benzo(a)pyrene, than 10 ug/l may be reported as zero. Forum’s policies for implementation of chrysene, dibenzo(a,h)anthracene, (2) BTEX shall be measured as the fluoranthene, fluorene, Colorado River Salinity Standards. Note: sum of benzene, toluene, ethylbenzene, this requirement does not apply to indeno(1,2,3,cd)pyrene, naphthalene, and xylenes. EPA Method 8020 shall be phenanthrene, pyrene. discharges at the Pueblos of Santa Clara used for the measurement of xylenes and San Juan. (4) The COD limit and monitoring including ortho-, meta-, and para- requirement does not apply to Santa Monitoring shall be 1/week for Flow, xylenes. Clara Pueblo discharges. Benzene, BTEX, pH, COD and Lead (3) The Daily Max limit and (5) The Total Phenols limits and using grab samples. PAH’s shall be monitoring requirement for PAH’s do monitoring requirements apply only to monitored 1/month using grab samples. not apply to discharges from the Santa Clara Pueblo discharges. No Visible Oil Sheen shall be monitored cleanup of Petroleum UST Systems 2/week using grab samples of the containing only gasoline, jet fuel and/or b. Whole Effluent Toxicity Testing (48- effluent collected in a wide mouth glass kerosene. The Daily Max value of any of Hour Acute NOEC Freshwater)

Whole effluent toxicity testing (48 hr. static renewal 1 Frequency Type

Pimephales promelas (Fathead minnow) ...... 1/Quarter ...... 24-Hr. Composite. 1 The first biomonitoring test shall be conducted on the effluent prior to the initial discharge. If no significant lethal effects are experienced in the first year of testing, the testing frequency will be reduced to once/year.

(1) Scope and Methodology additional tests in lieu of routine (b) Statistical Interpretation (a) The permittee shall test the toxicity testing. The full report shall be For the Fathead minnow survival test, effluent for toxicity in accordance with prepared for each test required by this the statistical analyses used to the provisions in this section. section in accordance with procedures determine if there is a statistically Critical Dilution: 100% effluent. outlined in Item 4 of this section. significant difference between the Composite Sample Type: 24-hour (b) If one or both of the two additional control and the critical dilution shall be composite. tests demonstrates significant lethal in accordance with the methods for Test Species/Methods: 40 CFR Part 136. effects at the critical dilution, the determining the No Observed Effect Pimephales promelas (Fathead permittee shall submit an application Concentration (NOEC) as described in minnow) acute static renewal 48-hour for an individual NPDES permit. EPA/600/4–90/027F or the most recent definitive toxicity test using EPA/600/ (3) Required Toxicity Testing update thereof. If the conditions of Test Acceptability 4–90/027F, or the latest update thereof. Conditions A minimum of five (5) replicates with are met in Item 3.a above and the eight (8) organisms per replicate must be (a) Test Acceptance percent survival of the test organism is used in the control and in each effluent equal to or greater than 80% in the The permittee shall repeat a test, dilution of this test. critical dilution concentration, the test (b) The NOEC (No Observed Effect including the control and the critical shall be considered to be a passing test, Concentration) is defined as the greatest dilution, if the procedures and quality and the permittee shall report an NOEC effluent dilution which does not result assurance requirements defined in the of not less than the critical dilution for in lethality that is statistically different test methods or in this permit are not the DMR reporting requirements found from the control (0% effluent) at the satisfied, including the following in Item 4 below. 95% confidence level. additional criteria: i. Each toxicity test control (0% (c) Dilution Water (2) Persistent Lethality effluent) must have a survival equal to i. Dilution water used in the toxicity The requirements of this subsection or greater than 90%. tests will be receiving water collected as apply only when a toxicity test ii. The percent coefficient of variation close to the point of discharge as demonstrates significant lethal effects at between replicates shall be 40% or less possible but unaffected by the the critical dilution. Significant lethal in the control (0% effluent) for the discharge. The permittee shall substitute effects are herein defined as a Fathead minnow survival test. synthetic dilution water of similar pH, statistically significant difference at the hardness, and alkalinity to the closest 95% confidence level between the iii. The percent coefficient of downstream perennial water for; survival of the appropriate test organism variation between replicates shall be (A) toxicity tests conducted on in a specified effluent dilution and the 40% or less in the critical dilution, effluent discharges to receiving water control (0% effluent). unless significant lethal effects are classified as intermittent streams; and (a) The permittee shall conduct a total exhibited for the Fathead minnow (B) toxicity tests conducted on of two (2) additional tests for any survival test. effluent discharges where no receiving species that demonstrates significant Test failure may not be construed or water is available due to zero flow lethal effects at the critical dilution. The reported as invalid due to a coefficient conditions. two additional tests shall be conducted of variation value of greater than 40%. ii. If the receiving water is monthly during the next two A repeat test shall be conducted within unsatisfactory as a result of instream consecutive months. The permittee shall the required reporting period of any test toxicity (fails to fulfill the test not substitute either of the two determined to be invalid. acceptance criteria of Item 3.a), the Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61121 permittee may substitute synthetic static renewal protocol associated with incorporates by reference ALL dilution water for the receiving water in the abbreviated sample collection must conditions and requirements applicable all subsequent tests provided the be documented in the full report to NPDES Permits set forth in the Clean unacceptable receiving water test met required in Item 4 of this section. Water Act, as amended, (hereinafter the following stipulations: v. Multiple Outfalls: If the provisions known as the ‘‘Act’’) as well as ALL (A) a synthetic dilution water control of this section are applicable to multiple applicable regulations. which fulfills the test acceptance outfalls, the permittee shall combine the 2. Duty To Comply requirements of Item 3.a was run composite effluent samples in concurrently with the receiving water proportion to the average flow from the The permittee must comply with all control; outfalls listed in Item 1.a above for the conditions of this permit. Any permit (B) the test indicating receiving water day the sample was collected. The noncompliance constitutes a violation toxicity has been carried out to permittee shall perform the toxicity test of the Act and is grounds for completion (i.e., 48 hours); on the flow-weighted composite of the enforcement action, for terminating (C) the permittee includes all test outfall samples. coverage under this permit, or for results indicating receiving water requiring a permittee to apply for and toxicity with the full report and (4) Reporting obtain an individual NPDES permit. information required by Item 4 below; (a) The permittee shall prepare a full 3. Toxic Pollutants and report of the results of all tests (D) the synthetic dilution water shall conducted pursuant to this Part in a. Notwithstanding Part II.A.4, if any have a pH, hardness, and alkalinity accordance with the Report Preparation toxic effluent standard or prohibition similar to that of the receiving water or Section of EPA/600/4–90/027F, for (including any schedule of compliance closest downstream perennial water not every valid or invalid toxicity test specified in such effluent standard or adversely affected by the discharge, initiated, whether carried to completion prohibition) is promulgated under provided the magnitude of these or not. The permittee shall retain each Section 307(a) of the Act for a toxic parameters will not cause toxicity in the full report pursuant to the provisions of pollutant which is present in the synthetic dilution water. PART II.C.3 of this permit. The discharge and that standard or (d) Samples and Composites permittee shall submit full reports only prohibition is more stringent than any upon the specific request of the Agency. limitation on the pollutant in this i. The permittee shall collect two (b) A valid test for each species must permit, this permit shall be modified or flow-weighted composite samples from be reported on the DMR during each revoked and reissued to conform to the the outfall(s) listed at Item 1.a above. reporting period specified in PART toxic effluent standard or prohibition. ii. The permittee shall collect a II.D.4 of this permit. Only ONE set of b. The permittee shall comply with second composite sample for use during biomonitoring data is to be recorded on effluent standards or prohibitions the 24-hour renewal of each dilution the DMR for each reporting period. The established under Section 307(a) of the concentration the for both tests. The data submitted should reflect the Act for toxic pollutants within the time permittee must collect the composite LOWEST Survival results during the provided in the regulations that samples so that the maximum holding reporting period. All invalid tests, established those standards or time for any effluent sample shall not repeat tests (for invalid tests), and prohibitions, even if the permit has not exceed 36 hours. The permittee must retests (for tests previously failed) yet been modified to incorporate the have initiated the toxicity test within 36 performed during the reporting period requirement. hours after the collection of the last must be attached to the DMR for EPA portion of the first composite sample. 4. Permit Flexibility review. Samples shall be chilled to 4 degrees (c) The permittee shall report the This permit may be modified, revoked Centigrade during collection, shipping, following results of each valid toxicity and reissued, or terminated for cause in and/or storage. accordance with 40 CFR 122.62–64. The iii. The permittee must collect the test on the subsequent monthly DMR for that reporting period in accordance with filing of a request for a permit composite samples such that the modification, revocation and reissuance, effluent samples are representative of PART II.D.4 of this permit. Submit retest information clearly marked as such with or termination, or a notification of any periodic episode of chlorination, planned changes or anticipated biocide usage or other potentially toxic the following month’s DMR. Only results of valid tests are to be reported noncompliance, does not stay any substance discharged on an intermittent permit condition. basis. on the DMR. iv. If the flow from the outfall(s) being Pimephales promelas (Fathead minnow) 5. Property Rights tested ceases during the collection of i. If the No Observed Effect This permit does not convey any effluent samples, the requirements for Concentration (NOEC) for survival is property rights of any sort, or any the minimum number of effluent less than the critical dilution, enter a exclusive privilege. samples, the minimum number of ‘‘1’’; otherwise, enter a ‘‘0’’ for 6. Duty To Provide Information effluent portions and the sample Parameter No. TEM6C. holding time are waived during that ii. Report the NOEC value for The permittee shall furnish to the sampling period. However, the survival, Parameter No. TOM6C. Director, within a reasonable time, any permittee must collect an effluent information which the Director may composite sample volume during the Part II. (Applicable to TXG830000, request to determine whether cause period of discharge that is sufficient to LAG830000, OKG830000 and exists for modifying, revoking and complete the required toxicity tests with NMG830000) reissuing, or terminating this permit, or daily renewal of effluent. When Section A. General Conditions to determine compliance with this possible, the effluent samples used for permit. The permittee shall also furnish the toxicity tests shall be collected on 1. Introduction to the Director, upon request, copies of separate days. The effluent composite In accordance with the provisions of records required to be kept by this sample collection duration and the 40 CFR Part 122.41, et. seq., this permit permit. 61122 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

7. Criminal and Civil Liability any discharge in violation of this permit equipment downtime or preventive Except as provided in permit which has a reasonable likelihood of maintenance; and, conditions on ‘‘Bypassing’’ and adversely affecting human health or the (c) The permittee submitted notices as ‘‘Upsets’’, nothing in this permit shall environment. required by Part II.B.4.b. (2) The Director may allow an be construed to relieve the permittee 3. Proper Operation and Maintenance from civil or criminal penalties for anticipated bypass after considering its a. The permittee shall at all times noncompliance. Any false or materially adverse effects, if the Director properly operate and maintain all misleading representation or determines that it will meet the three facilities and systems of treatment and concealment of information required to conditions listed at Part II.B.4.c(1). control (and related appurtenances) be reported by the provisions of the which are installed or used by permittee 5. Upset Conditions permit, the Act, or applicable as efficiently as possible and in a a. Effect of an Upset. An upset regulations, which avoids or effectively manner which will minimize upsets and constitutes an affirmative defense to an defeats the regulatory purpose of the discharges of excessive pollutants and action brought for noncompliance with Permit may subject the Permittee to will achieve compliance with the such technology-based permit effluent criminal enforcement pursuant to 18 conditions of this permit. Proper limitations if the requirements of Part U.S.C. Section 1001. operation and maintenance also II.B.5.b. are met. No determination made 8. Oil and Hazardous Substance includes adequate laboratory controls during administrative review of claims Liability and appropriate quality assurance that noncompliance was caused by Nothing in this permit shall be procedures. This provision requires the upset, and before an action for construed to preclude the institution of operation of backup or auxiliary noncompliance, is final administrative any legal action or relieve the permittee facilities or similar systems which are action subject to judicial review. from any responsibilities, liabilities, or installed by a permittee only when the b. Conditions Necessary for a penalties to which the permittee is or operation is necessary to achieve Demonstration of Upset. A permittee may be subject under Section 311 of the compliance with the conditions of this who wishes to establish the affirmative Act. permit. defense of upset shall demonstrate, b. The permittee shall provide an through properly signed, 9. State Laws adequate operating staff which is duly contemporaneous operating logs, or Nothing in this permit shall be qualified to carry out operation, other relevant evidence that: construed to preclude the institution of maintenance and testing functions (1) An upset occurred and that the any legal action or relieve the permittee required to insure compliance with the permittee can identify the cause(s) of from any responsibilities, liabilities, or conditions of this permit. the upset; penalties established pursuant to any 4. Bypass of Treatment Facilities (2) The permitted facility was at the applicable State law, tribal law or time being properly operated; a. Bypass not Exceeding Limitations. regulation under authority preserved by (3) The permittee submitted notice of The permittee may allow any bypass to Section 510 of the Act. the upset as required by Part II.D.7; and, occur which does not cause effluent (4) The permittee complied with any 10. Severability limitations to be exceeded, but only if remedial measures required by Part The provisions of this permit are it also is for essential maintenance to II.B.2. severable, and if any provision of this assure efficient operation. These c. Burden of Proof. In any permit or the application of any bypasses are not subject to the enforcement proceeding, the permittee provision of this permit to any provisions of Parts II.B.4.b. and 4.c. seeking to establish the occurrence of an b. Notice. (1) Anticipated Bypass. If circumstance is held invalid, the upset has the burden of proof. the permittee knows in advance of the application of such provision to other need for a bypass, it shall submit prior 6. Removed Substances circumstances, and the remainder of notice, if possible at least ten days this permit, shall not be affected Unless otherwise authorized, solids, before the date of the bypass. thereby. sewage sludges, filter backwash, or (2) Unanticipated Bypass. The other pollutants removed in the course B. Proper Operation and Maintenance permittee shall, within 24 hours, submit of treatment or waste water control shall notice of an unanticipated bypass as 1. Need To Halt or Reduce Not a be disposed of in a manner such as to required in Part II.D.7. prevent any pollutant from such Defense c. Prohibition of Bypass. (1) Bypass is materials from entering navigable It shall not be a defense for a prohibited, and the Director may take waters. permittee in an enforcement action that enforcement action against a permittee it would have been necessary to halt or for bypass, unless: C. Monitoring and Records reduce the permitted activity in order to (a) Bypass was unavoidable to prevent 1. Inspection and Entry maintain compliance with the loss of life, personal injury, or severe conditions of this permit. The permittee property damage; The permittee shall allow the is responsible for maintaining adequate (b) There were no feasible alternatives Director, or an authorized safeguards to prevent the discharge of to the bypass, such as the use of representative, upon the presentation of untreated or inadequately treated wastes auxiliary treatment facilities, retention credentials and other documents as may during electrical power failure either by of untreated wastes, or maintenance be required by the law to: means of alternate power sources, during normal periods of equipment a. Enter upon the permittee’s premises standby generators or retention of downtime. This condition is not where a regulated facility or activity is inadequately treated effluent. satisfied if adequate back-up equipment located or conducted, or where records should have been installed in the must be kept under the conditions of 2. Duty To Mitigate exercise of reasonable engineering this permit; The permittee shall take all judgment to prevent a bypass which b. Have access to and copy, at reasonable steps to minimize or prevent occurred during normal periods of reasonable times, any records that must Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61123 be kept under the conditions of this D. Reporting Requirements Oklahoma permit; Director, Oklahoma Department of c. Inspect at reasonable times any 1. Planned Changes Environmental Quality, 1000 NE 10th facilities, equipment (including The permittee shall give notice to the Street, Oklahoma City, OK 73117– monitoring and control equipment), Director as soon as possible of any 1212 practices or operations regulated or planned physical alterations or required under this permit; and additions to the permitted facility. Louisiana d. Sample or monitor at reasonable Notice is required only when: Assistant Secretary for Water, Water times, for the purpose of assuring permit Pollution Control Division, Louisiana compliance or as otherwise authorized (1) The alteration or addition to a Department of Environmental Quality, by the Act, any substances or permitted facility may meet one of the P.O. Box 82215, Baton Rouge, LA parameters at any location. criteria for determining whether a facility is a new source in 40 CFR Part 70884–2215 2. Representative Sampling 122.29(b); or, Pueblo of Santa Clara Samples and measurements taken for (2) The alteration or addition could Governor, Santa Clara Pueblo, P.O. Box the purpose of monitoring shall be significantly change the nature or 580, Espanola, NM 87532 representative of the monitored activity. increase the quantity of pollutants 3. Retention of Records discharged. This notification applies to Pueblo of Pojoaque pollutants which are subject neither to Manager, Environmental Department, The permittee shall retain records of effluent limitations in the permit, nor to all monitoring information, including Pueblo of Pojoaque, Route 11, Box notification requirements listed at Part 208, Santa Fe, MN 87501 all calibration and maintenance records II.D.10.a. and all original strip chart recordings for Pueblo of San Juan continuous monitoring instrumentation, 2. Anticipated Noncompliance copies of all reports required by this Governor, San Juan Pueblo, P.O. Box The permittee shall give advance 1099, San Juan Pueblo, MN 87566 permit, and records of all data used to notice to the Director of any planned complete the application for this permit, changes in the permitted facility or Pueblo of Nambe for a period of at least 3 years from the activity which may result in Governor, Pueblo of Nambe, Route 1, date of the sample, measurement, noncompliance with permit Box 117BB, Santa Fe, NM 87501 report, or application. This period may requirements. be extended by request of the Director Pueblo of Picuris at any time. 3. Transfers Governor, Pueblo of Picuris, P.O. Box 4. Record Contents Coverage under these permits is not 127, Penasco, NM 87553 Records of monitoring information transferable to any person except after 5. Additional Monitoring by the shall include: notice to the Director. Permittee a. The date, exact place, and time of 4. Discharge Monitoring Reports and If the permittee monitors any sampling or measurements; Other Reports b. The individual(s) who performed pollutant more frequently than required by this permit, using test procedures the sampling or measurements; Monitoring results obtained during approved under 40 CFR Part 136 or as c. The date(s) and time(s) analyses the previous 12 months shall be specified in this permit, the results of were performed; summarized and reported to EPA and this monitoring shall be included in the d. The individual(s) who performed the appropriate State agency on the 28th calculation and reporting of the data the analyses; day of the month following the end of submitted in the Discharge Monitoring e. The analytical techniques or the twelve month period on Discharge Report (DMR). Such increased methods used; and Monitoring Report (DMR) Form EPA No. monitoring frequency shall also be f. The results of such analyses. 3320–1 in accordance with the ‘‘General indicated on the DMR. 5. Monitoring Procedures Instructions’’ provided on the form. The a. Monitoring must be conducted permittee shall submit the original DMR 6. Averaging of Measurements according to test procedures approved signed and certified as required by Part Calculations for all limitations which under 40 CFR Part 136, unless other test II.D.11 and all other reports required by require averaging of measurements shall procedures have been specified in this Part II.D. to the EPA at the address utilize an arithmetic mean unless permit or approved by the Regional below. Duplicate copies of DMR’s and otherwise specified by the Director in Administrator. all other reports shall be submitted to the permit. b. The permittee shall calibrate and the appropriate State agency(ies) at the 7. Twenty-Four Hour Reporting perform maintenance procedures on all following address(es): monitoring and analytical instruments EPA a. The permittee shall report any at intervals frequent enough to insure noncompliance which may endanger accuracy of measurements and shall Compliance Assurance and Enforcement health or the environment. Any maintain appropriate records of such Division, Water Enforcement Branch information shall be provided orally to activities. (6EN–W), U.S. Environmental the EPA Region 6 24-hour voice mail c. An adequate analytical quality Protection Agency, Region 6, P.O. Box box telephone number 214–665–6593 control program, including the analyses 50625, Dallas, TX 75250 within 24 hours from the time the of sufficient standards, spikes, and New Mexico permittee becomes aware of the duplicate samples to insure the circumstances. A written submission accuracy of all required analytical Program Manager, Surface Water shall be provided within 5 days of the results shall be maintained by the Quality Bureau, New Mexico time the permittee becomes aware of the permittee or designated commercial Environment Department, 1190 Saint circumstances. The report shall contain laboratory. Francis Drive, Santa Fe, NM 87502 the following information: 61124 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

(1) A description of the five hundred micrograms per liter (500 operator of a well or a well field, noncompliance and its cause; ug/L) for 2,4-dinitro-phenol and for 2- superintendent, or position of (2) The period of noncompliance methyl-4,6-dinitrophenol; and one equivalent responsibility, or an including exact dates and times, and if milligram per liter (1 mg/L) for individual or position having overall the noncompliance has not been antimony; responsibility for environmental matters corrected, the anticipated time it is (3) Five (5) times the maximum for the company. A duly authorized expected to continue; and, concentration value reported for that representative may thus be either a (3) Steps being taken to reduce, pollutant in the permit application; or named individual or an individual eliminate, and prevent recurrence of the (4) The level established by the occupying a named position; and, noncomplying discharge. Director. (3) The written authorization is b. The following shall be included as b. That any activity has occurred or submitted to the Director. information which must be reported will occur which would result in any c. Certification. Any person signing a within 24 hours: discharge, on a non routine or document under this section shall make (1) Any unanticipated bypass which infrequent basis, of a toxic pollutant the following certification: exceeds any effluent limitation in the which is not limited in the permit, if ‘‘I certify under penalty of law that permit; that discharge will exceed the highest of this document and all attachments were (2) Any upset which exceeds any the following ‘‘notification levels’’: prepared under my direction or effluent limitation in the permit; and, (1) Five hundred micrograms per liter supervision in accordance with a system (3) Violation of a maximum daily (500 ug/L); designed to assure that qualified discharge limitation for any pollutants (2) One milligram per liter (1 mg/L) listed by the Director in Part II of the personnel properly gather and evaluate for antimony; the information submitted. Based on my permit to be reported within 24 hours. (3) Ten (10) times the maximum c. The Director may waive the written inquiry of the person or persons who concentration value reported for that manage the system, or those persons report on a case-by-case basis if the oral pollutant in the permit application; or report has been received within 24 directly responsible for gathering the (4) The level established by the information, the information submitted hours. Director. d. For discharges covered by is, to the best of my knowledge and LAG830000: Louisiana State regulations 11. Signatory Requirements belief, true, accurate, and complete. I am require notification of noncompliances aware that there are significant penalties All applications, reports, or for submitting false information, which may endanger health or the information submitted to the Director environment to Louisiana Department of including the possibility of fine and shall be signed and certified. imprisonment for knowing violations.’’ Environmental Quality within one hour a. ALL PERMIT APPLICATIONS shall of becoming aware of the circumstances be signed as follows: 12. Availability of Reports of the violation. (1) by a responsible corporate officer. Except for applications, effluent data, 8. Other Noncompliance For the purpose of this section, a permits, and other data specified in 40 responsible corporate officer means: The permittee shall report all CFR 122.7, any information submitted (a) A president, secretary, treasurer, or instances of noncompliance not pursuant to this permit may be claimed vice-president of the corporation in reported under Parts II.D.4 and D.7 and as confidential by the submitter. If no charge of a principal business function, Part I.C at the time monitoring reports claim is made at the time of submission, or any other person who performs are submitted. The reports shall contain information may be made available to similar policy or decision making the information listed at Part II.D.7. the public without further notice. functions for the corporation; or, 9. Other Information (b) FOR A CORPORATION—The E. Penalties for Violations of Permit Where the permittee becomes aware manager of one or more manufacturing, Conditions production, or operating facilities that it failed to submit any relevant facts 1. Criminal in a permit application, or submitted employing more than 250 persons or incorrect information in a permit having gross annual sales or a. Negligent Violations. The Act application or in any report to the expenditures exceeding $25 million (in provides that any person who Director, it shall promptly submit such second-quarter 1980 dollars), if negligently violates permit conditions facts or information. authority to sign documents has been implementing Section 301, 302, 306, assigned or delegated to the manager in 307, 308, 318, or 405 of the Act is 10. Changes in Discharges of Toxic accordance with corporate procedures. subject to a fine of not less than $2,500 Substances (2) FOR A PARTNERSHIP OR SOLE nor more than $25,000 per day of The permittee shall notify the Director PROPRIETORSHIP—by a general violation, or by imprisonment for not as soon as it knows or has reason to partner or the proprietor, respectively. more than 1 year, or both. believe: b. ALL REPORTS required by the b. Knowing Violations. The Act a. That any activity has occurred or permit and other information requested provides that any person who will occur which would result in the by the Director shall be signed by a knowingly violates permit conditions discharge, on a routine or frequent basis, person described above or by a duly implementing Sections 301, 302, 306, of any toxic pollutant listed at 40 CFR authorized representative of that person. 307, 308, 318, or 405 of the Act is Part 122, Appendix D, Tables II and III A person is a duly authorized subject to a fine of not less than $5,000 (excluding Total Phenols) which is not representative only if: nor more than $50,000 per day of limited in the permit, if that discharge (1) The authorization is made in violation, or by imprisonment for not will exceed the highest of the following writing by a person described above; more than 3 years, or both. ‘‘notification levels’’: (2) The authorization specifies either c. Knowing Endangerment. The Act (1) One hundred micrograms per liter an individual or a position having provides that any person who (100 ug/L); responsibility for the overall operation knowingly violates permit conditions (2) Two hundred micrograms per liter of the regulated facility or activity, such implementing Sections 301, 302, 303, (200 ug/L) for acrolein and acrylonitrile; as the position of plant manager, 306, 307, 308, 318, or 405 of the Act and Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61125 who knows at that time that he is Act, including, but not limited to, 11. Grab Sample means an individual placing another person in imminent effluent limitations, standards or sample collected in less than 15 danger of death or serious bodily injury performance, toxic effluent standards minutes. is subject to a fine of not more than and prohibitions, and pretreatment 12. National Pollutant Discharge $250,000, or by imprisonment for not standards. Elimination System means the national more than 15 years, or both. 4. Applicable Water Quality program for issuing, modifying, d. False Statements. The Act provides Standards means all water quality revoking and reissuing, terminating, that any person who knowingly makes standards to which a discharge is monitoring and enforcing permits, and any false material statement, subject under the Act. imposing and enforcing pretreatment representation, or certification in any 5. Bypass means the intentional requirements, under Sections 307, 318, application, record, report, plan, or diversion of waste streams from any 402, and 405 of the Act. other document filed or required to be portion of a treatment facility. 13. Severe Property Damage means maintained under the Act or who 6. Daily Discharge means the substantial physical damage to property, knowingly falsifies, tampers with, or discharge of a pollutant measured damage to the treatment facilities which renders inaccurate, any monitoring during a calendar day or any 24-hour causes them to become inoperable, or device or method required to be period that reasonably represents the substantial and permanent loss of maintained under the Act, shall upon calendar day for purposes of sampling. natural resources which can reasonably conviction, be punished by a fine of not For pollutants with limitations be expected to occur in the absence of more than $10,000, or by imprisonment expressed in terms of mass, the ‘‘daily a bypass. Severe property damage does for not more than 2 years, or by both. discharge’’ is calculated as the total not mean economic loss caused by If a conviction of a person is for a mass of the pollutant discharged over delays in production. violation committed after a first the sampling day. For pollutants with 14. Upset means an exceptional conviction of such person under this limitations expressed in other units of incident in which there is unintentional paragraph, punishment shall be by a measurement, the ‘‘daily discharge’’ is and temporary noncompliance with fine of not more than $20,000 per day calculated as the average measurement technology-based permit effluent of violation, or by imprisonment of not of the pollutant over the sampling day. limitations because of factors beyond more than 4 years, or by both. (See ‘‘Daily discharge’’ determination of the reasonable control of the permittee. Section 309.c.4 of the Clean Water Act) concentration made using a composite An upset does not include sample shall be the concentration of the noncompliance to the extent caused by 2. Civil Penalties composite sample. When grab samples operational error, improperly designed The Act provides that any person who are used, the ‘‘daily discharge’’ treatment facilities, inadequate violates a permit condition determination of concentration shall be treatment facilities, lack of preventive implementing Sections 301, 302, 306, arithmetic average (weighted by flow maintenance, or careless or improper 307, 308, 318, or 405 of the Act is value) of all samples collected during operation. subject to a civil penalty not to exceed that sampling day. 15. The term ‘‘MGD’’ shall mean $25,000 per day for each violation. 7. Daily Average (also known as million gallons per day. MONTHLY AVERAGE) discharge 16. The term ‘‘mg/L’’ shall mean 3. Administrative Penalties limitations means the highest allowable milligrams per liter or parts per million The Act provides that any person who average of ‘‘daily discharge(s)’’ over a (ppm). violates a permit condition calendar month, calculated as the sum 17. The term ‘‘µg/L’’ shall mean implementing Sections 301, 302, 306, of all ‘‘daily discharge(s)’’ measured micrograms per liter or parts per billion 307, 308, 318, or 405 of the Act is during a calendar month divided by the (ppb). subject to an administrative penalty, as number of ‘‘daily discharge(s)’’ [FR Doc. 97–29864 Filed 11–13–97; 8:45 am] measured during that month. When the follows: BILLING CODE 6560±50±P a. Class I Penalty. Not to exceed permit establishes daily average $10,000 per violation nor shall the concentration effluent limitations or maximum amount exceed $25,000. conditions, the daily average FEDERAL MARITIME COMMISSION b. Class II Penalty. Not to exceed concentration means the arithmetic $10,000 per day for each day during average (weighted by flow) of all ‘‘daily Notice of Agreement(s) Filed which the violation continues nor shall discharge(s)’’ of concentration the maximum amount exceed $125,000. determined during the calendar month The Commission hereby gives notice where C = daily concentration, F = daily of the filing of the following F. Definitions flow and n = number of daily samples; agreement(s) under the Shipping Act of All definitions contained in Section daily average discharge = 1984. 502 of the Act shall apply to this permit Interested parties can review or obtain and are incorporated herein by + + ⋅⋅⋅ + copies of agreements at the Washington, CFCFCF1 1 2 2 n n reference. Unless otherwise specified in + + ⋅⋅⋅ + DC office of the Commission, 800 North this permit, additional definitions of FFF1 2 n Capitol Street, N.W., Room 962. words or phrases used in this permit are 8. Daily Maximum discharge Interested parties may submit comments as follows: limitation means the highest allowable on an agreement to the Secretary 1. Act means the Clean Water Act (33 ‘‘daily discharge’’ during the calendar Federal Maritime Commission, U.S.C. 1251 et. seq.), as amended. month. Washington, DC 20573, within 10 days 2. Administrator means the 9. Director means the U.S. of the date this notice appears in the Administrator of the U.S. Environmental Protection Agency Federal Register. Environmental Protection Agency. Regional Administrator or an authorized Agreement No.: 202–010776–105. 3. Applicable Effluent Standards and representative. Title: Asia North America Rate Limitations means all state and Federal 10. Environmental Protection Agency Agreement (‘‘ANERA’’) effluent standards and limitations to means the U.S. Environmental Parties: which a discharge is subject under the Protection Agency. American President Lines, Ltd. 61126 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

Hapag-Lloyd Container Line GmbH Regulation Group) 101 Market Street, Co-operative Bank, Medford, Kawasaki Kisen Kaisha, Ltd. San Francisco, California 94105-1579: Massachusetts. A.P. Moller-Maersk Line 1. Michael Frank Maluccio, La B. Federal Reserve Bank of Chicago Mitsui O.S.K. Lines, Ltd Crescenta, California; Maluccio (Philip Jackson, Applications Officer) Neptune Orient Lines, Ltd Company, Glendale, California; 230 South LaSalle Street, Chicago, Nippon Yusen Kaisha Line Nicholas J. Maluccio Trust, Glendale, Illinois 60690-1413: Orient Overseas Container Lines, Inc. Calfornia; and Malcor, Lancaster, 1. Hometown Bancorp, Ltd., Fond du P&O Nedlloyd Limited California, parties acting in concert; to Lac, Wisconsin; to become a bank P&O Nedlloyd B.V. acquire voting shares of Verdugo holding company by acquiring 100 Sea-Land Service, Inc. Banking Company, Glendale, California. percent of the voting shares of St. Cloud Synopsis: The proposed modification Board of Governors of the Federal Reserve Bancshares, Inc., St. Cloud, Wisconsin, adds a new Article 5.1(q) which System, November 7, 1997. and thereby indirectly acquire State authorizes the parties to consider and Jennifer J. Johnson, Bank of St. Cloud, St. Cloud, Wisconsin. act upon proposals and Deputy Secretary of the Board. C. Federal Reserve Bank of St. Louis recommendations of the Equipment [FR Doc. 97–29908 Filed 11–13–97; 8:45 am] (Randall C. Sumner, Vice President) 411 Interchange Discussion Agreement with BILLING CODE 6210±01±F Locust Street, St. Louis, Missouri 63102- respect to activities within the scope of 2034: the ANERA agreement. 1. First Western Bancshares Employee Agreement No.: 224–201040. FEDERAL RESERVE SYSTEM Stock Ownership Trust, Booneville, Title: Jaxport/Trailer Bridge Lease Arkansas; to become a bank holding Agreement. Formations of, Acquisitions by, and company by acquiring at least 30.4 Parties: Jacksonville Port Authority Mergers of Bank Holding Companies percent of the voting shares of First (‘‘Port’’) Trailer Bridge, Inc. (‘‘Trailer The companies listed in this notice Western Bancshares, Inc., Booneville, Bridge’’). have applied to the Board for approval, Arkansas, and thereby indirectly acquire Synopsis: The Agreement provides for pursuant to the Bank Holding Company Citizens Bank, Booneville, Arkansas. the rental by Trailer Bridge of 17 acres Act of 1956 (12 U.S.C. 1841 et seq.) D. Federal Reserve Bank of at the Port’s Blount Island Terminal and (BHC Act), Regulation Y (12 CFR Part Minneapolis (Karen L. Grandstrand, for Trailer Bridge’s preferential, but 225), and all other applicable statutes Vice President) 250 Marquette Avenue, non-exclusive use of to be constructed and regulations to become a bank Minneapolis, Minnesota 55480-2171: triple deck loading facility. holding company and/or to acquire the 1. GEBSCO, Inc., Cochrane, By Order of the Federal Maritime assets or the ownership of, control of, or Wisconsin; to merge with Firstmondovi, Commission. the power to vote shares of a bank or Inc., Mondovi, Wisconsin, and thereby Dated: November 7, 1997. bank holding company and all of the indirectly acquire Bank of Mondovi, Ronald D. Murphy, banks and nonbanking companies Mondovi, Wisconsin. Assistant Secretary. owned by the bank holding company, E. Federal Reserve Bank of Dallas [FR Doc. 97–29916 Filed 11–13–97; 8:45 am] including the companies listed below. (Genie D. Short, Vice President) 2200 BILLING CODE 6730±01±M The applications listed below, as well North Pearl Street, Dallas, Texas 75201- as other related filings required by the 2272: Board, are available for immediate 1. State National Bancshares, Inc., FEDERAL RESERVE SYSTEM inspection at the Federal Reserve Bank Lubbock, Texas; to acquire 100 percent indicated. The application also will be of the voting shares of First Sierra, Change in Bank Control Notices; available for inspection at the offices of Bancshares, Inc., Truth or Acquisitions of Shares of Banks or the Board of Governors. Interested Consequences, New Mexico, and Bank Holding Companies persons may express their views in thereby indirectly acquire Sierra Bank, writing on the standards enumerated in Las Cruces, New Mexico. The notificants listed below have the BHC Act (12 U.S.C. 1842(c)). If the 2. State National Bancshares, Inc., applied under the Change in Bank proposal also involves the acquisition of Lubbock, Texas, and State National Control Act (12 U.S.C. 1817(j)) and § a nonbanking company, the review also Bancshares of Delaware, Inc., Dover, 225.41 of the Board’s Regulation Y (12 includes whether the acquisition of the Delaware; to acquire 100 percent of the CFR 225.41) to acquire a bank or bank nonbanking company complies with the voting shares of First National Bank of holding company. The factors that are standards in section 4 of the BHC Act. Denver City, Denver City, Texas. considered in acting on the notices are Unless otherwise noted, nonbanking F. Federal Reserve Bank of San set forth in paragraph 7 of the Act (12 activities will be conducted throughout Francisco (Pat Marshall, Manager of U.S.C. 1817(j)(7)). the United States. Analytical Support, Consumer The notices are available for Unless otherwise noted, comments Regulation Group) 101 Market Street, immediate inspection at the Federal regarding each of these applications San Francisco, California 94105-1579: Reserve Bank indicated. The notices must be received at the Reserve Bank 1. VIB Corp., El Centro, California; to also will be available for inspection at indicated or the offices of the Board of become a bank holding company by the offices of the Board of Governors. Governors not later than December 8, acquiring 100 percent of the voting Interested persons may express their 1997. shares of Valley Independent Bank, El views in writing to the Reserve Bank A. Federal Reserve Bank of Boston Centro, California. indicated for that notice or to the offices (Richard Walker, Community Affairs of the Board of Governors. Comments Officer) 600 Atlantic Avenue, Boston, Board of Governors of the Federal Reserve System, November 7, 1997. must be received not later than Massachusetts 02106-2204: November 28, 1997. 1. Mystic Financial, Inc., Medford, Jennifer J. Johnson, A. Federal Reserve Bank of San Massachusetts; to become a bank Deputy Secretary of the Board. Francisco (Pat Marshall, Manager of holding company by acquiring 100 [FR Doc. 97–29909 Filed 11–13–97; 8:45 am] Analytical Support, Consumer percent of the voting shares of Medford BILLING CODE 6210±01±F Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61127

FEDERAL RESERVE SYSTEM value; (2) selling postage stamps and fact that are in dispute, summarizing the postage-paid envelopes; (3) providing evidence that would be presented at a Notice of Proposals To Engage in mailboxes and related services; (4) hearing, and indicating how the party Nonbanking Activities or to Acquire providing notary public services; (5) commenting would be aggrieved by Companies That are Engaged in providing vehicle registration services approval of the proposal. Nonbanking Activities and selling, distributing and renewing This notice may be inspected at the Popular, Inc., Hato Rey, Puerto Rico license plates and license tags for motor office of the Board of Governors or the (Notificant), has provided notice vehicles; (6) providing photocopying Federal Reserve Bank of New York. pursuant to section 4(c)(8) of the Bank and facsimile transmission services; and Board of Governors of the Federal Reserve Holding Company Act, 12 U.S.C. § (7) entering into arrangements with System, November 7, 1997. 1843(c)(8)) (BHC Act), and section automobile clubs to promote Jennifer J. Johnson, membership in and services of such 225.24 of the Board’s Regulation Y (12 Deputy Secretary of the Board. clubs. These activities will be CFR 225.24), to acquire through its [FR Doc. 97–29910 Filed 11–13–97; 8:45 am] wholly owned subsidiary, Popular Cash conducted worldwide. Section 4(c)(8) of the Bank Holding BILLING CODE 6210±01±F Express, Inc., Orlando, Florida, certain Company Act provides that a bank assets of Florida Exchange, Ltd., Oak holding company may, with Board Park, Illinois, and Mirando-J., Inc., Oak approval, engage in any activity that the FEDERAL RESERVE SYSTEM Park, Illinois, and thereby engage in the Board, after due notice and opportunity approved and new nonbanking Docket No. R±0989 for hearing, has determined (by order or activities. The approved activities are: regulation) to be so closely related to (1) extending credit, servicing loans, Policy Statement on Payments System banking or managing or controlling Risk; Modification to the Time Credits and related activities, pursuant to § 12 banks as to be a proper incident thereto. C.F.R. 225.28(b)(1) of the Board’s are Posted to Federal Reserve A particular activity may be found to Accounts for Checks Drawn on Local Regulation Y; (2) leasing personal and meet the ‘‘closely related to banking’’ real property, pursuant to § 225.28(b)(3) Federal Reserve Banks for Purposes of test if it is demonstrated that banks Measuring Daylight Overdrafts of the Board’s Regulation Y; (3) generally have provided the proposed providing financial and investment activity, that banks generally provide AGENCY: Board of Governors of the advisory services, pursuant to § services that are operationally or Federal Reserve System. 225.28(b)(6) of the Board’s Regulation Y; functionally similar to the proposed ACTION: Policy Statement. (4) providing transactional services, activity so as to equip them particularly pursuant to § 225.28(b)(7) of the Board’s well to provide the proposed activity, or SUMMARY: The Board has modified the Regulation Y; (5) providing investing that banks generally provide services daylight overdraft measurement rules to and trading services, pursuant to § 12 that are so integrally related to the accommodate an earlier afternoon C.F.R. 225.28(b)(8)(ii) of the Board’s proposed activity as to require their presentment deadline for checks drawn Regulation Y; (6) acting as principal, provision in a specialized form. on local Federal Reserve Banks. agent or broker for insurance related to National Courier Ass’n v. Board of EFFECTIVE DATE: November 14, 1997. extensions of credit, pursuant to § Governors, 516 F.2d 1229, 1237 (D.C. 225.28(b)(11)(i) of the Board’s FOR FURTHER INFORMATION CONTACT: Cir. 1975). In addition, the Board may Myriam Payne, Senior Financial Regulation Y; (7) acting as agent or consider any other basis that may broker for insurance directly related to Services Analyst (202/452–3219), or demonstrate that the activity has a Stacy Panigay, Financial Services an extension of credit as would be sold reasonable or close relationship to by a finance company, pursuant to § Analyst (202/452–2934), Division of banking or managing or controlling Reserve Bank Operations and Payment 225.28(b)(ii) of the Board’s Regulation banks. Board Statement Regarding Y; (8) issuing and selling money orders, Systems; for the hearing impaired only: Regulation Y, 49 FR 794, 806 (1984). Telecommunications Device for the savings bonds, and traveler’s checks, In publishing the proposal for Deaf, Diane Jenkins (202/452–3544). pursuant to § 225.28(b)(13) of the comment, the Board does not take a Board’s Regulation Y. Notificant also position on issues raised by the SUPPLEMENTARY INFORMATION: proposes to engage in (1) check cashing proposal. Notice of the proposal is Background services; (2) accepting bill payments; (3) published solely to seek the views of accepting or disbursing change in interested persons on this issues When the Board modified the exchange for currency in a different presented by the notice and does not Payments System Risk Reduction denomination; and (4) transmitting or represent a determination by the Board policies in 1992 (57 FR 47093, October wiring money on a worldwide basis. See that the proposal meets, or is likely to 14, 1992), it adopted a set of ‘‘posting Midland Bank, PLC, 76 Fed. Res. Bull. meet, the standards of the BHC Act. Any rules’’ which comprise a schedule for 860 (1990); and Norwest Corporation, 81 comments or requests for hearing the intraday timing of debits and credits Fed. Res. Bull. 974 (1995) and 81 Fed. should be submitted in writing and to institutions’ Federal Reserve accounts Res. Bull. 1130 (1995). received by William W. Wiles, for different types of payments. With the In addition, the Notificant proposes to Secretary, Board of Governors of the implementation of these rules along engage, either alone or as an incident to Federal Reserve System, Washington, with the imposition of fees for daylight other activities, in the following new D.C. 20551, not later than December 5, overdrafts, the Board was interested in nonbanking activities that the Board 1997. Any request for a hearing on this inducing behavioral changes to control previously has not determined are notice must, as required by section risk and increase efficiency in the closely related to banking under section 262.3(e) of the Board’s Rules of payments system. Under the daylight 4(c)(8) of the BHC Act: (1) selling bus Procedure (12 CFR 262.3(e)), be overdraft measurement rules that passes, transit tokens, prepaid phone accompanied by a statement of the became effective on October 14, 1993, cards, event and attraction tickets, reasons why a written presentation depository institutions that deposit in prepaid cellular phone time and other would not suffice in lieu of a hearing, separately sorted cash letters Checks similar forms of alternate media of identifying specifically any questions of Drawn on Local Federal Reserve Banks 61128 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

(i.e., Federal Funds checks), U.S. Post after the close of Fedwire funds contact the Board’s Web site at http:// Treasury Checks, Postal Money Orders, transfer system: www.bog.frb.fed.us for an electronic and U.S. Savings Bonds Deposited +/- All other non-Fedwire announcement that not only lists under the EZ-Clear Program by 4 p.m. transactions. These transactions include applications, but also indicates ET receive credit for these items at 5 the following: local Federal Reserve procedural and other information about p.m. ET. Bank checks presented after 3:00 p.m. the meeting. Eastern Time but before 3:00 p.m. local Dated: November 12, 1997. Analysis of Federal Funds Checks time; noncash collection; credits for Presentment Deadline U.S. Treasury and government agency Jennifer J. Johnson, The Board believes that establishing a definitive security interest and Deputy Secretary of the Board. consistent presentment deadline for redemption payments if the coupons or [FR Doc. 97–30108 Filed 11–12–97; 10:40 Federal Funds checks in all Federal securities are received on or after the am] Reserve districts will help reduce the maturity date; Treasury Tax and Loan BILLING CODE 6210±01±P routine use of Federal Funds checks.1 (TT&L) calls; subscriptions for SLGS; Federal Funds checks are an currency and coin shipments; small- inappropriate means of providing dollar credit adjustments; all debit FEDERAL RESERVE SYSTEM regular access to an institution’s Federal adjustments; and small-dollar check Reserve account and their routine use is collections. Discount window loans and Sunshine Act Meeting contrary to the Federal Reserve’s repayments are normally posted after strategy of promoting efficient and the close of Fedwire as well; however, AGENCY HOLDING THE MEETING: Board of effective methods of payment. In almost in unusual circumstances a discount Governors of the Federal Reserve all cases where Federal Funds checks window loan may be posted earlier in System. are used as the payment instrument, the the day with repayment 24 hours later, TIME AND DATE: 10:00 a.m., Wednesday, transaction could have been made or a loan may be repaid before it would November 19, 1997. through a more secure and efficient otherwise become due. PLACE: Marriner S. Eccles Federal method, such as a funds transfer By order of the Board of Governors of network. To discourage the use of Reserve Board Building, C Street the Federal Reserve System, November entrance between 20th and 21st Streets, Federal Funds checks and encourage 7, 1997. depository institutions’ use of more N.W., Washington, D.C. 20551. Jennifer J. Johnson, efficient means of payment, a 3 p.m. STATUS: Open. local time presentment deadline for Deputy Secretary of the Board. Federal Funds checks will be [FR Doc. 97–29962 Filed 11–13–97; 8:45 am] MATTERS TO BE CONSIDERED: implemented. BILLING CODE 6210±01±P Discussion Agenda: Policy Statement on Payments System 1. Proposed 1998–1999 Federal Risk FEDERAL RESERVE SYSTEM Reserve Board budget. The Federal Reserve Board has 2. Proposed 1998–1999 budget for the adopted the following changes to the Sunshine Act Meeting Office of Inspector General. ‘‘Federal Reserve System Policy AGENCY HOLDING THE MEETING: Board of 3. Any items carried forward from a Statement on Payments System Risk,’’ Governors of the Federal Reserve previously announced meeting. under the heading ‘‘I. Federal Reserve System. Policy’’: Note: This meeting will be recorded for the TIME AND DATE: Approximately 10:45 benefit of those unable to attend. Cassettes Modified Procedures for Measuring a.m., Wednesday, November 19, 1997, will be available for listening in the Board’s Daylight Overdrafts following a recess at the conclusion of Freedom of Information Office, and copies the open meeting. Post at 5:00 p.m. Eastern Time: may be ordered for $6 per cassette by calling • Treasury checks, postal money PLACE: Marriner S. Eccles Federal 202–452–3684 or by writing to: Freedom of orders, and EZ-Clear Savings Bond Reserve Board Building, 20th and C Information Office, Board of Governors of the redemptions in separately sorted Streets, N.W., Washington, D.C. 20551. Federal Reserve System, Washington, D.C. deposits. These items must be deposited STATUS: Closed. 20551. by 4:00 p.m. Eastern Time. MATTERS TO BE CONSIDERED: CONTACT PERSON FOR MORE INFORMATION: • Local Federal Reserve Bank checks. Joseph R. Coyne, Assistant to the Board; These items must be presented before 1. Personnel actions (appointments, 202–452–3204. 3:00 p.m. Eastern Time. promotions, assignments, • Processed manual letters of credit. reassignments, and salary actions) SUPPLEMENTARY INFORMATION: You may +/- Same-day ACH transactions. These involving individual Federal Reserve call 202–452–3206 for a recorded transactions include ACH return items, System employees. announcement of this meeting; or you check truncation items, and flexible 2. Any matters carried forward from a may contact the Board’s Web site at settlement items. previously announced meeting. http://www.bog.frb.fed.us for an CONTACT PERSON FOR MORE INFORMATION: electronic announcement. (The Web site 1 Federal Funds checks are drafts drawn by a Joseph R. Coyne, Assistant to the Board; also includes procedural and other depository institution against its account at a 202–452–3204. information about the open meeting.) Federal Reserve Bank. These funds represent SUPPLEMENTARY INFORMATION: You may immediately available funds when presented for Dated: November 12, 1997. payment, and thus, when used, the checks are most call 202–452–3206 beginning at often used to settle same-day securities approximately 5 p.m. two business days Jennifer J. Johnson, transactions, interbank transfers, international before the meeting for a recorded Deputy Secretary of the Board. transactions, real estate transactions, payments to [FR Doc. 97–30109 Filed 11–12–97; 10:40 state and local governments, Federal Reserve Bank announcement of bank and bank transactions and for other situations where a bank holding company applications am] check is required for legal reasons. scheduled for the meeting; or you may BILLING CODE 6210±01±P Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61129

GENERAL ACCOUNTING OFFICE Platelet inhibitors organization adolescent immunization Artificial skin grafts policies. Advisory Council on Government Stereotactic radiosurgery Agenda items are subject to change as Auditing Standards; Notice of Meeting Cardiomyostimulator priorities dictate. Percutaneous vascular puncture closure Contact Person for More Information: Edith The Advisory Council on Government Amniofusion Gary, Health Services Research and Auditing Standards will meet on Injection or infusion of thrombolytic agent Evaluation Branch, Immunization Services Monday, November 24, 1997, from 9:00 Addenda Division, CDC, NIP, 1600 Clifton Road, NE, a.m. to 5:00 p.m., and Tuesday, Agenda items are subject to change as M/S E–52, Atlanta, Georgia 30333. Telephone November 25, 1997, from 8:30 a.m. to priorities dictate. 404/639–8209, fax 404/639–8615, e-mail [email protected]. 3:00 p.m., in room 7C13 of the General Contact Person for Additional Information: Accounting Office building, 441 G St., Amy L. Blum, 301/436–7050 ext. 164 Dated: November 7, 1997. NW., Washington, D.C. (diagnosis), or Amy Gruber 410/786–1542 John C. Burckhardt, The Advisory Council on Government (procedures), NCHS, CDC, Presidential Acting Director, Management Analysis and Building, 6525 Belcrest Road, Hyattsville, Services Office, Centers for Disease Control Auditing Standards will hold a meeting Maryland 20782. to discuss issues that may impact and Prevention (CDC). Dated: November 7, 1997. Government Auditing Standards. Any [FR Doc. 97–29970 Filed 11–13–97; 8:45 am] John C. Burckhardt, interested person may attend the BILLING CODE 4163±18±P meeting as an observer. Council Acting Director, Management Analysis and discussions and reviews are open to the Services Office, Centers for Disease Control and Prevention (CDC). public. DEPARTMENT OF HEALTH AND For further information contact: [FR Doc. 97–29969 Filed 11–13–97; 8:45 am] HUMAN SERVICES Marcia Buchanan, Assistant Director, BILLING CODE 4160±18±P Food and Drug Administration Government Auditing Standards, AIMD, (202) 512–9321. [Docket No. 97N±0431] DEPARTMENT OF HEALTH AND Dated: November 7, 1997. HUMAN SERVICES Iatric Corp.; Revocation of Product Marcia B. Buchanan, License for Coccidioidin, USP (BioCox) Assistant Director. Centers for Disease Control and [FR Doc. 97–29911 Filed 11–13–97; 8:45 am] Prevention AGENCY: Food and Drug Administration, BILLING CODE 1610±02±M HHS. The National Immunization Program (NIP) of the Centers for Disease ACTION: Notice. Control and Prevention (CDC); Meeting DEPARTMENT OF HEALTH AND SUMMARY: The Food and Drug HUMAN SERVICES Name: Adolescent Immunization Meeting. Administration (FDA) is announcing the Time and Date: 7:30 a.m.–4 p.m. December revocation of the biological product Centers for Disease Control and 4, 1997. license issued to Iatric Corp., Tempe, Prevention Place: J.W. Marriott Hotel, Lenox, 3300 AZ, for the manufacture of Lenox Road, NE Atlanta, Georgia 30326. Coccidioidin, USP (BioCox). In a letter National Center for Health Statistics Telephone 404/262–3344, fax 404/262–8803. to FDA dated May 13, 1997, Iatric Corp. (NCHS), Data Policy and Standards Status: The meeting is open to the public voluntarily requested revocation of its Staff; Meeting subject to the availability of conference room product license for Coccidioidin, USP space. The meeting will be a round table (BioCox). In a letter dated June 25, 1997, Name: ICD–9–CM Coordination and discussion with public and private medical Maintenance (C&M) Committee meeting. providers and experts who deal with FDA informed the firm that its product Times and Dates: 9 a.m.–5 p.m. December adolescent health and immunization issues. license for Coccidioidin, USP (BioCox) 4, 1997; 9 a.m.–5 p.m. December 5, 1997. Written comments will be accepted during was revoked. Place: The Health Care Financing the meeting or at the address below. DATES: The revocation of the product Administration, Auditorium, 7500 Security Attendees must provide and pay for their license became effective June 25, 1997. Boulevard, Baltimore, Maryland. own travel expenses. Status: Open to the public. In the interest Purpose: The meeting will bring together a FOR FURTHER INFORMATION CONTACT: of security, non-government employees must small group of public and private medical Astrid L. Szeto, Center for Biologics show a photo I.D., and sign-in to gain experts, in adolescent health and Evaluation and Research (HFM–17), entrance to the building. immunization, to collaborate with the CDC in Food and Drug Administration, 1401 Purpose: The ICD–9–CM Coordination and developing adolescent immunization disease Rockville Pike, Rockville, MD 20852– Maintenance Committee will hold its final reduction and coverage goals/objectives. 1448, 301–827–6210. meeting of the 1997 cycle on Thursday, Matters To Be Discussed: CDC speakers SUPPLEMENTARY INFORMATION: FDA has December 4 (Vol. 3 (Procedures)), and Friday, will present background information; sample December 5 (Volumes 1 and 2 (Diagnosis)). goals/objectives; year 2000 and possible 2010 revoked the product license issued to The C&M meeting is a public forum for the Healthy People objectives; and other Iatric Corp., 2330 South Industry Park presentation of proposed modifications to the adolescent immunization health information. Ave., Tempe, AZ 85282, for the International Classification of Diseases, In addition, CDC speakers will describe manufacture of Coccidioidin, USP Ninth-Revision, Clinical Modification. vaccine-preventable diseases associated with (BioCox). Matters To Be Discussed: Agenda items adolescents and estimated immunization FDA inspected Iatric Corp. on April 7 will include: coverage levels. through 11, 1997. The inspection of the Injury aftercare status Specific agenda items include adolescent facility revealed serious deviations from Palliative care immunization coverage goals; coverage applicable Federal regulations. The Ostomy complications estimates for childhood and adolescent Late effects of CVA immunization; adolescent disease reduction inspection also included a concurrent Diabetes goals; epidemiology of vaccine preventable investigation concerning the interstate Group B strep carrier status diseases in adolescents; implementation distribution of the product. The Complications of artificial skin replacement perspectives; HEDIS 3.0 adolescent deficiencies noted included, but were Update on ICD–10 Procedure Coding System immunization measures; and managed care not limited to, the following: (1) Failure 61130 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices of each person engaged in the violation of section 351(a) of the Public DEPARTMENT OF HEALTH AND manufacturing, processing, packing, or Health Service Act (the PHS Act) (42 HUMAN SERVICES holding of a drug product to have the U.S.C. 262(a)). These products were also necessary education, training, and misbranded within the meaning of Food and Drug Administration experience to perform their assigned section 502(a) of the act (21 U.S.C. functions § 211.25(a) (21 CFR 211.25(a)); 352(a)). [Docket No. 97M±0453] (2) failure to thoroughly investigate any FDA concluded that the nature of the unexplained discrepancy in drug HealthTronics, Inc.; Premarket TM product production and control records deficiencies noted at Iatric Corp. were Approval of Lithotron Lithotripsy or the failure of a batch to meet any of the direct consequence of a disregard for System its specifications (21 CFR 211.192); (3) the applicable regulations and standards AGENCY: Food and Drug Administration, failure to establish separate or defined in the license application. These HHS. areas or other control systems for deficiencies also demonstrated manufacturing and processing management’s failure to exercise control ACTION: Notice. over the establishment in all matters operations to prevent contamination or SUMMARY: The Food and Drug mixups (§ 211.42(c) (21 CFR 211.42(c)) relating to compliance and to ensure that personnel are adequately trained Administration (FDA) is announcing its and 21 CFR 600.11(a)); (4) failure to approval of the application submitted and supervised and have a thorough establish and follow appropriate written by HealthTronics, Inc., Marietta, GA, for understanding of the procedures that procedures designed to prevent premarket approval, under the Federal they perform, as required by § 211.25. microbiological contamination of drug Food, Drug, and Cosmetic Act (the act), FDA determined that these deficiencies products purporting to be sterile and to of the LithoTronTM Lithotripsy System. assure that such procedures include constitute a danger to the public health FDA’s Center for Devices and validation of any sterilization processes that warranted suspension under Radiological Health (CDRH) notified the (21 CFR 211.113(b)); (5) failure to report § 601.5(b) (21 CFR 601.5(b)) and 21 CFR applicant, by letter of July 21, 1997, of adverse experience information (21 CFR 601.6(a). the approval of the application. 600.80(c)); (6) failure to establish In a letter to the firm dated April 25, laboratory controls that include DATES: Petitions for administrative 1997, FDA suspended the establishment review by December 15, 1997. scientifically sound and appropriate license (U.S. License No. 0416) and specifications, standards, sampling ADDRESSES: Written requests for copies product license for Coccidioidin, USP plans, and test procedures designed to of the summary of safety and (BioCox). In a letter dated May 13, 1997, assure that components, drug product effectiveness data and petitions for Iatric Corp. requested voluntary containers, closures, in-process administrative review, to the Dockets materials, labeling, and drug products revocation of its product license for the Management Branch (HFA–305), Food conform to appropriate standards of manufacture of Coccidioidin, USP and Drug Administration, 12420 identity, strength, quality, and purity (BioCox). Parklawn Dr., rm. 1–23, Rockville, MD (21 CFR 211.160(b)); (7) failure to FDA has placed copies of the letters 20857. provide adequate space for the orderly relevant to the license revocation on file FOR FURTHER INFORMATION CONTACT: placement of equipment and materials under the docket number found in Russell P. Pagano, Center for Devices to prevent mixups between different brackets in the heading of this and Radiological Health (HFZ–470), components, drug product containers, document with the Dockets Food and Drug Administration, 9200 closures, labeling, in-process materials, Management Branch (HFA–305), Food Corporate Blvd., Rockville, MD 20850, or drug products, and to prevent and Drug Administration, 12420 301–594–2194. contamination (§ 211.42(b)); (8) failures Parklawn Dr., rm. 1–23, Rockville, MD SUPPLEMENTARY INFORMATION: On May to establish and/or follow written 20857. These documents are available 16, 1997, HealthTronic, Inc., Marietta, procedures for production and process for public examination in the Dockets GA 30060, submitted to CDRH an controls designed to assure that the drug Management Branch between 9 a.m. and application for premarket approval of products have the identity, strength, 4 p.m., Monday through Friday. the LithoTronTM Lithotripsy System. quality, and purity they purport or are The device is an extracorporeal represented to possess and to assure that Accordingly, under § 601.5(a), section 351 of the PHS Act, and under authority shockwave lithotripter and is indicated such procedures, including any for use in patients with renal and upper delegated to the Commissioner of Food changes, are drafted, reviewed, and ureteral calculi between 4 and 20 and Drugs (21 CFR 5.10) and approved by the appropriate millimeters in size. redelegated to the Director, Center for organizational units and reviewed and In accordance with the provisions of Biologics Evaluation and Research (21 approved by quality control (21 CFR section 515(c)(2) of the the act (21 211.100); (9) failure to maintain CFR 5.68), the product license issued to U.S.C. 360e(c)(2)) as amended by the buildings used in the manufacture, Iatric Corp. for the manufacture of Safe Medical Devices Act of 1990, this processing, packing, or holding of a Coccidioidin, USP (BioCox) was premarket approval was not referred to drug product in a good state of repair revoked, effective June 25, 1997. the Gastroenterology and Urology (21 CFR 211.58); and (10) failure to This notice is issued and published Devices Panel of the Medical Devices demonstrate that adequate ventilation is under 21 CFR 601.8 and the Advisory Committee, an FDA advisory provided (21 CFR 211.46(a)). redelegation at 21 CFR 5.67(c). committee, for review and Based on the results of FDA’s recommendation because the Dated: October 31, 1997. inspection and investigation, FDA information in the PMA substantially determined that the firm’s Coccidioidin, Mark Elengold, duplicates information previously USP (BioCox) was adulterated within Acting Deputy Director, Center for Biologics reviewed by this panel. the meaning of section 501(b) of the Evaluation and Research. On July 21, 1997, CDRH approved the Federal Food, Drug, and Cosmetic Act [FR Doc. 97–30028 Filed 11–13–97; 8:45 am] application by a letter to the applicant (the act) (21 U.S.C. 351(b)) and in BILLING CODE 4160±01±F from the Deputy Director of Clinical and Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61131

Review Policy of the Office of Device Dated: October 17, 1997. have adequate functional range of Evaluation, CDRH. Joseph A. Levitt, motion of the upper extremity, (3) have A summary of the safety and Deputy Director for Regulations Policy, Center intact lower motor neuron innervation effectiveness data on which CDRH for Devices and Radiological Health. of the forearm and hand musculature, and (4) are skeletally mature. based its approval is on file in the [FR Doc. 97–30029 Filed 11–13–97; 8:45 am] BILLING CODE 4160±01±F On September 25, 1996, the Dockets Management Branch (address Neurological Devices Panel of the above) and is available from that office Medical Devices Advisory Committee, upon written request. Requests should DEPARTMENT OF HEALTH AND an FDA advisory committee, reviewed be identified with the name of the HUMAN SERVICES and recommended approval of the device and the docket number found in application. On August 15, 1997, CDRH brackets in the heading of this Food and Drug Administration approved the application by a letter to document. [Docket No. 97M±0458] the applicant from the Director of the Office of Device Evaluation, CDRH. Opportunity for Administrative Review NeuroControl, Corp.; Premarket A summary of the safety and Section 515(d)(3) of the act (21 U.S.C. Approval of Freehand System effectiveness data on which CDRH 360e(d)(3)) authorizes any interested based its approval is on file in the person to petition, under section 515(g) AGENCY: Food and Drug Administration, Dockets Management Branch (address above) and is available from that office of the act, for administrative review of HHS. upon written request. Requests should CDRH’s decision to approve this ACTION: Notice. be identified with the name of the application. A petitioner may request SUMMARY: The Food and Drug device and the docket number found in either a formal hearing under 21 CFR Administration (FDA) is announcing its brackets in the heading of this part 12 of FDA’s administrative approval of the application submitted document. practices and procedures regulations or by NeuroControl, Corp., Cleveland, OH, Opportunity for Administrative Review a review of the application and CDRH’s for premarket approval, under the action by an independent advisory Federal Food, Drug, and Cosmetic Act Section 515(d)(3) of the act (21 U.S.C. committee of experts. A petition is to be (the act), of the Freehand System . After 360e(d)(3)) authorizes any interested in the form of a petition for reviewing the recommendation of the person to petition, under section 515(g) reconsideration under 21 CFR 10.33(b). Neurological Devices Panel, FDA’s of the act, for administrative review of A petitioner shall identify the form of Center for Devices and Radiological CDRH’s decision to approve this review requested (hearing or Health (CDRH) notified the applicant, application. A petitioner may request independent advisory committee) and by letter of August 15, 1997, of the either a formal hearing under 21 CFR shall submit with the petition approval of the application. part 12 of FDA’s administrative practices and procedures regulations or supporting data and information DATES: Petitions for administrative showing that there is a genuine and review by December 15, 1997. a review of the application and CDRH’s action by an independent advisory substantial issue of material fact for ADDRESSES: Written requests for copies resolution through administrative committee of experts. A petition is to be of the summary of safety and in the form of a petition for review. After reviewing the petition, effectiveness data and petitions for reconsideration under 21 CFR 10.33(b). FDA will decide whether to grant or administrative review to the Dockets A petitioner shall identify the form of deny the petition and will publish a Management Branch (HFA–305), Food review requested (hearing or notice of its decision in the Federal and Drug Administration, 12420 independent advisory committee) and Register. If FDA grants the petition, the Parklawn Dr., rm. 1–23, Rockville, MD shall submit with the petition notice will state the issue to be 20857. supporting data and information reviewed, the form of the review to be FOR FURTHER INFORMATION CONTACT: showing that there is a genuine and used, the persons who may participate Levering G. Keely, Center for Devices substantial issue of material fact for in the review, the time and place where and Radiological Health (HFZ–450), resolution through administrative the review will occur, and other details. Food and Drug Administration, 9200 review. After reviewing the petition, Petitioners may, at any time on or Corporate Blvd., Rockville, MD 20850, FDA will decide whether to grant or before December 15, 1997, file with the 301–443–8517. deny the petition and will publish a Dockets Management Branch (address SUPPLEMENTARY INFORMATION: On June notice of its decision in the Federal above) two copies of each petition and 17, 1996, NeuroControl Corp., Register. If FDA grants the petition, the supporting data and information, Cleveland, OH 44106, submitted to notice will state the issue to be identified with the name of the device CDRH an application for premarket reviewed, the form of the review to be and the docket number found in approval of the Freehand System . The used, the persons who may participate brackets in the heading of this system includes: Implantable receiver- in the review, the time and place where document. Received petitions may be stimulator Model 202–1, implantable the review will occur, and other details. seen in the office above between 9 a.m. epimysial electrode set Model 203–1, Petitioners may, at any time on or surgical electrode positioning kit Model before December 15, 1997, file with the and 4 p.m., Monday through Friday. 207–1, patient external system Model Dockets Management Branch (address This notice is issued under the 204–1, and programming system Model above) two copies of each petition and Federal Food, Drug, and Cosmetic Act 209–1. The system is an upper extremity supporting data and information, (secs. 515(d), 520(h), (21 U.S.C. 360e(d), neuroprosthesis and is intended to identified with the name of the device 360j(h))) and under authority delegated improve a patient’s ability to grasp, and the docket number found in to the Commissioner of Food and Drugs hold, and release objects. The system is brackets in the heading of this (21 CFR 5.10) and redelegated to the indicated for use in patients who: (1) document. Received petitions may be Director, Center for Devices and Are tetraplegic due to C5 or C6 spinal seen in the office above between 9 a.m. Radiological Health (21 CFR 5.53). cord injury (ASIA Classification), (2) and 4 p.m., Monday through Friday. 61132 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

This notice is issued under the Agenda: On December 4, 1997, the The following request has been Federal Food, Drug, and Cosmetic Act committee will hear presentations from submitted to the Office of Management (secs. 515(d), 520(h) (21 U.S.C. 360e(d), the Institute of Medicine on the and Budget for review under the 360j(h))) and under authority delegated marketed product Halcion (triazolam, Paperwork Reduction Act of 1995: to the Commissioner of Food and Drugs Pharmacia and Upjohn Co.). Proposed Project: The Health (21 CFR 5.10) and redelegated to the Procedure: Interested persons may Education Assistance Loan (HEAL) Director, Center for Devices and present data, information, or views, Radiological Health (21 CFR 5.53). Program: Application Form—0915– orally or in writing, on issues pending 0038—Extension, No Change. The Dated: October 16, 1997. before the committee. Written Health Education Assistance Loan Joseph A. Levitt, submissions may be made to the contact (HEAL) program provides federally- Deputy Director for Regulations Policy, Center person by December 1, 1997. Oral insured loans to students in schools of for Devices and Radiological Health. presentations from the public will be allopathic medicine, osteopathic [FR Doc. 97–30030 Filed 11–13–97; 8:45 am] scheduled between approximately 8:30 medicine, dentistry, veterinary BILLING CODE 4160±01±F a.m. and 9:30 a.m. Time allotted for medicine, optometry, podiatric each presentation may be limited. Those medicine, pharmacy, public health, desiring to make formal oral allied health, or chiropractic, and DEPARTMENT OF HEALTH AND presentations should notify the contact graduate students in health HUMAN SERVICES person before December 1, 1997, and administration or clinical psychology. submit a brief statement of the general Eligible lenders, such as banks, savings Food and Drug Administration nature of the evidence or arguments and loan associations, credit unions, they wish to present, the names and Psychopharmacologic Drugs Advisory pension funds, State agencies, HEAL addresses of proposed participants, and Committee; Notice of Meeting schools, and insurance companies, an indication of the approximate time make HEAL loans which are insured by AGENCY: Food and Drug Administration, requested to make their presentation. the Federal Government against loss due HHS. Notice of this meeting is given under to borrowers’ death, disability, ACTION: Notice. the Federal Advisory Committee Act (5 bankruptcy, and default. The basic U.S.C. app. 2). This notice announces a forthcoming purpose of the program is to assure the meeting of a public advisory committee Dated: November 10, 1997. availability of funds for loans to eligible of the Food and Drug Administration Michael A. Friedman, students who need to borrow money to (FDA). The meeting will be open to the Deputy Commissioner for Operations. pay for their educational costs. public. [FR Doc. 97–30034 Filed 11–13–97; 8:45 am] The HEAL program is being phased Name of Committee: BILLING CODE 4160±01±F out and no new loans will be made after Psychopharmacologic Drugs Advisory September 30, 1998, unless Committee. reauthorization is enacted. We are, General Function of the Committee: DEPARTMENT OF HEALTH AND however, requesting a 3-year extension To provide advice and HUMAN SERVICES of the OMB approval of the HEAL recommendations to the agency on FDA Application Form HRSA–700 because regulatory issues. Health Resources and Services lenders will continue to use this form Date and Time: The meeting will be Administration for consolidation loans through fiscal held on December 4, 1997, 8:30 a.m to Agency Information Collection year (FY) 2000. Students use the 5 p.m. application to apply for HEAL loans Location: Holiday Inn, Versailles Activities: Submission for OMB (through FY 1998) and consolidation of Ballrooms I and II, 8120 Wisconsin Review; Comment Request loans, schools use the application to Ave., Bethesda, MD. Contact Person: Rhonda W. Stover, or Periodically, the Health Resources determine a student’s eligibility and Robinette Taylor, Center for Drug and Services Administration (HRSA) maximum approval amount of each loan Evaluation and Research (HFD–21), publishes abstracts of information (through FY 1998 only), and lenders use Food and Drug Administration, 5600 collection requests under review by the the application to determine student Fishers Lane, Rockville, MD 20857, Office of Management and Budget, in eligibility and the amount of the 301–443–5455, or FDA Advisory compliance with the Paperwork installment or disbursement to be given Committee Information Line, 1–800– Reduction Act of 1995 (44 U.S.C. to the borrower, and to process 741–8138 (301–443–0572 in the Chapter 35). To request a copy of the consolidation loans. Washington, DC area), code 12544. clearance requests submitted to OMB for The estimate of burden for the Please call the Information Line for up- review, call the HRSA Reports application form for FY 1998 is as to-date information on this meeting. Clearance Office on (301) 443–1129. follows:

Responses Total Burden per Total Type of respondent Number of per number of response burden respondents respondent responses (minutes) hours

Applicants ...... 8,230 1 8,230 25 3,429 Schools ...... 190 41 7,730 32 4,123 Lenders ...... 11 748 8,230 35 4,801

Total ...... 8,431 ...... 24,190 ...... 12,353

The estimate of burden for the application form for FY 1999 and 2000 (for consolidation loans only) is as follows: Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61133

Responses Total Burden per Total Type of respondent Number of per number of response burden respondents respondent responses (minutes) hours

Applicants ...... 500 1 500 25 208 Lenders ...... 11 45 500 35 292

Total ...... 511 ...... 1,000 ...... 500

Written comments and and evaluation of all aspects of this changing field of HIV/AIDS service recommendations concerning the cooperative agreement. HRSA may also delivery, it is impossible to predict proposed information collection should participate and/or collaborate with the which expertise will be needed of the 50 be sent within 30 days of this notice to: APHA in any workshops or symposia to public health occupations. Laura Oliven, Human Resources and exchange current information, opinions, 2. The mission of this organization is Housing Branch, Office of Management and research findings during this to ‘‘prevent disease and promote health’’ and Budget, New Executive Office agreement. throughout the United States making Building, Room 10235, Washington, DC The goal of HRSA in entering into this APHA a national leader. APHA has a 20503. cooperative agreement is to strengthen history of providing science expertise to Dated: November 7, 1997. effective HIV/AIDS treatment programs develop best practices for the delivery of Jane M. Harrison, at all levels throughout the United public health programs, including HIV/ States and its territories; to prevent HIV Acting Director, Division of Policy Review AIDS services. Currently, it provides and Coordination. transmission and effect, maintain, professional education and services for measure, and evaluate behavioral [FR Doc. 97–30027 Filed 11–13–97; 8:45 am] its members in a variety of areas. The change among individuals whose BILLING CODE 4160±15±P APHA has valuable experience with behavior places them at risk of HIV issues important to the delivery of HIV/ infection; to reduce risks of further AIDS care—health care in jails and DEPARTMENT OF HEALTH AND transmission and to maintain the health prisons, outreach to underserved HUMAN SERVICES of asymptomatic clients; and to increase groups, women’s health, and primary collaboration, support and technical health care delivery in community The Health Resources and Services competence among agencies, settings. This experience enables the Administration organizations, groups, and APHA to contribute significantly to this constituencies. effort. APHA can identify areas needing Notice of a Cooperative Agreement Authorizing Legislation best practices, identify experts in these with the American Public Health areas, and assign individual experts and Association This cooperative agreement is groups to develop best practices. authorized under Section 2692 of the The Health Resources and Services Public Health Service Act. 3. APHA has established relationships Administration’s (HRSA) HIV/AIDS with the major associations that Bureau announces that it will award a Background represent single public health sole source cooperative agreement to the Assistance will be provided to the disciplines, such as the American American Public Health Association American Public Health Association. No Medical Association, and associations (APHA). other applications are solicited. The that represent health profession schools, The purpose of this cooperative HIV/AIDS Bureau is committed to such as the Association of Schools of agreement is to assist, collaboratively providing program expertise throughout Public Health. It can use these ties to with APHA, in the development and the nation to ensure that the providers further identify needed experts in the dissemination of resource materials of HIV/AIDS services to underserved HIV/AIDS service field. relating to the care and treatment of and vulnerable populations deliver Approximately $100,000 is available individuals with HIV/AIDS and the appropriate and quality care. The in fiscal year 1997 for the first year of prevention of the disease among Bureau believes that APHA is uniquely a 3-year project period for this individuals who are at risk. In addition, qualified to work with HRSA to meet cooperative agreement. Continuation this agreement will assist with the this goal for the following reasons: awards within the project period will be training of health professionals in the 1. APHA has more than 50,000 made on the basis of satisfactory care, treatment, and prevention of HIV/ members and affiliates from 50 progress and the availability of funds. AIDS. Specifically, these activities will occupations of public health, including include, but not be limited to, medicine, social work, nursing, health Where To Obtain Additional identifying areas where best practice education, epidemiology, and program Information standards need to be investigated and evaluation. It represents all disciplines If you are interested in obtaining developed; identifying and developing and specialities of public health. It additional information regarding this science expertise in areas agreed to by stimulates and coordinates the project, contact Mr. William Aspden, HRSA as critical to the appropriate development of the scientific basis for HIV/AIDS Bureau, HRSA, 5600 Fishers delivery of HIV/AIDS care; using that the Association’s professional and Lane, Room 7–05, Rockville, Maryland expertise to develop best practices; and public health policy programs. The 20857 or telephone (301) 443–1993. disseminating to the public health development of a public health HIV/ community information on best AIDS science and service delivery Dated: November 7, 1997. practices. assistance program with APHA Claude Earl Fox, HRSA will provide consultation, automatically covers all relevant Acting Administrator. including administrative and technical disciplines and specialities needed for [FR Doc. 97–30026 Filed 11–13–97; 8:45 am] assistance as needed, for the execution this effort. Because of the rapidly BILLING CODE 4160±15±P 61134 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

DEPARTMENT OF HOUSING AND (Revision of the Housing Discrimination DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Complaint Form, HUD–903 (English); URBAN DEVELOPMENT [Docket No. FR±4263±N±54] HUD 903–A, (Spanish). [Docket No. FR±4196±N±05] OMB Control Number: 2529–0011. Notice of Proposed Information Description of the need for the Submission for OMB Review: Collection for Public Comment Comment Request information and proposed use: The AGENCY: Office of the Assistant Department will use the Housing AGENCY: Office of Administration, HUD. Secretary for Fair Housing and Equal Discrimination Information Form for the ACTION: Notice. Opportunity, HUD. collection of information from person(s) SUMMARY: The proposed information ACTION: Notice. who wish to file a housing discrimination complaint. The form collection requirement described below SUMMARY: The proposed information contains information necessary for HUD has been submitted to the Office of collection requirement described below to make an initial determination Management and Budget (OMB) for review, as required by the Paperwork will be submitted to the Office of regarding HUD’s jurisdiction under the Reduction Act. The Department is Management and Budget (OMB) for Fair Housing Act. Subsequently such soliciting public comments on the review, as required by the Paperwork date is used for notifying person(s) Reduction Act. The Department is subject proposal. against whom a complaint is filed as soliciting public comments on the DATES: Comments due date: December required by Section 810 [42 U.S.C. 3610] subject proposal. 15, 1997. of the Fair Housing Act; and Part 103, DATES: Comments due: January 13, ADDRESSES: Subpart B, of the implementing Interested persons are 1997. invited to submit comments regarding regulations, 24 CFR Part 14 et. al., this proposal. Comments must be ADDRESSES: Interested persons are Implementation of the Fair Housing received within thirty (30) days from the invited to submit comments regarding Amendments Act of 1988; Final Rule. this proposal. Comments should refer to date of this Notice. Comments should The revised form is user-friendly; the proposal by name and/or OMB refer to the proposal by name and/or enhances the quality and clarity of Control Number and should be sent to: OMB approval number and should be information collected; reduces the time Josie D. Harrison, Reports Liaison sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Fair Housing and Equal to complete it—from one hour to 20 Officer, Office of Management and Opportunity, Department of Housing minutes—and makes the public aware Budget, Room 10235, New Executive and Urban Development, 451 7th Street, of their fair housing rights. The form Office Building, Washington, DC 20503. S.W. Room 5124, Washington, DC will be distributed nationwide, as a FOR FURTHER INFORMATION CONTACT: 20410–5000. printed, postage-paid flyer in English Kay F. Weaver, Reports Management FOR FURTHER INFORMATION CONTACT: Sara and Spanish. Further, once the form is Officer, Department of Housing and K. Pratt, (202) 708–0836, extension 221 approved, it will be downloaded onto Urban Development, 451 7th Street, (this is not a toll-free number) for copies the Internet for intrieval by Southwest, Washington, DC 20410, of the proposed forms and other complainants. telephone (202) 708–2374. This is not a available documents. Agency form numbers, if applicable: toll-free number. Copies of the proposed SUPPLEMENTARY INFORMATION: The Form HUD–903.1 forms and other available documents Department will submit the proposed submitted to OMB may be obtained Members of affected public: from Ms. Weaver. information collection to OMB for Individuals, households, or other SUPPLEMENTARY INFORMATION: The review, as required by the Paperwork entities who wish to file a complaint of Reduction Act of 1995 (44 U.S.C. Department has submitted the proposal housing discrimination under the Fair for the collection of information, as Chapter 35, as mended). Housing Act. The Notice is soliciting comments described below, to OMB for review, as from members of the public and Estimation of the total numbers of required by the Paperwork Reduction affecting agencies concerning the hours needed to prepare the information Act (44 U.S.C. Chapter 35). proposed collection of information is: collection including number of The Notice lists the following (1) Evaluate whether the proposed respondents, frequency of response, and information: (1) the title of the collection of information is necessary hours of response: On an annual basis, information collection proposal; (2) the for the proper performance of the 10,750 complainants, 1 response per office of the agency to collect the functions of the agency, including complainant requiring 20 minutes per information; (3) the OMB approval whether the information will have response = 3583 hours of response. number, if applicable; (4) the description of the need for the practical utility; (2) Evaluate the Status of the proposed information information and its proposed use; (5) accuracy of the agency’s estimate of the collection: Revision of a currently burden of the proposed collection of the agency form number, if applicable; approved information collection. information; (3) Enhance the quality, (6) what members of the public will be utility, and clarity of the information to Authority: Section 3506 of the Paperwork affected by the proposal; (7) how be collected; and (4) Minimize the Reduction Act of 1995, U.S.C. Chapter 35, as frequently information submissions will burden of the collection of information amended. be required; (8) an estimate of the total on those who are to respond; including Dated: November 6, 1997. number of hours needed to prepare the through the use of appropriate Susan M. Forward, information submission including number of respondents, frequency of automated collection techniques or General Deputy Assistant Secretary for Fair other forms of information technology. Housing and Equal Opportunity. response, and hours of response; (9) This Notice also lists the following whether the proposal is new, an [FR Doc. 97–29961 Filed 11–13–97; 8:45 am] information: extension, reinstatement, or revision of Title of Proposal: Housing BILLING CODE 4210±28±M an information collection requirement; Discrimination Information Form and (10) the names and telephone Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61135 numbers of an agency official familiar Office: Public and Indian Housing. Form Number: HUD–52483A, with the proposal and of the OMB Desk OMB Approval Number: 2577–0033 52651A, 52485, 51971–1, 51971–11, and Officer for the Department. 52482. Description of the Need for the Authority: Section 3507 of the Paperwork Information and its Proposed use: The Respondents: State, Local, or Tribal Reduction Act of 1995, 44 U.S.C. 35, as forms will provide the Department with Government and Business or Other For- amended. Profit. Dated: November 4, 1997. sufficient information to determine David S. Cristy, relative funding priorities for localities, Frequency of Submission: Director, Information Resources Management PHA eligibility to participate in the Recordkeeping and Annually. Policy and Management Division. program, and whether project proposals Reporting Burden: meet the program requirements. PHAs Notice of Submission of Proposed must also provide information that must Information Collection to OMB be met by the partnership before HUD Proposal: Public/Private Partnerships will approve a proposal for mixed- for Mixed-Finance Development for finance development. Public Housing Units, (FR–4196).

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

Information Collections ...... 334 1 13 4,635 Progress reviews ...... 35 1 48 1,680 Recordkeeping ...... 20 1 64 1,280

Total Estimated Burden Hours: 7,595. reviewed for suitability for use to assist instructions for completing the Status: Reinstatement, with changes. the homeless. The properties were application. In order to maximize the Contact: William Flood/David Sowell, reviewed using information provided to opportunity to utilize a suitable HUD (202) 708–0282; Joseph F. Lackey, HUD by Federal landholding agencies property, providers should submit their Jr., OMB, (202) 395–7316. regarding unutilized and underutilized written expressions of interest as soon Dated: November 4, 1997. buildings and real property controlled as possible. For complete details [FR Doc. 97–29960 Filed 11–13–97; 8:45 am] by such agencies or by GSA regarding concerning the processing of BILLING CODE 4210±01±M its inventory of excess or surplus applications, the reader is encouraged to Federal property. This Notice is also refer to the interim rule governing this published in order to comply with the program, 24 CFR part 581. DEPARTMENT OF HOUSING AND December 13, 1988 Court Order in For properties listed as suitable/to be URBAN DEVELOPMENT National Coalition for the Homeless v. excess, that property may, if Veterans Administration, No. 88–2503– subsequently accepted as excess by [Docket No. FR±4235±N±29] OG (D.D.C.). GSA, be made available for use by the Federal Property Suitable as Facilities Properties reviewed are listed in this homeless in accordance with applicable To Assist the Homeless Notice according to the following law, subject to screening for other categories: Suitable/available, suitable/ Federal use. At the appropriate time, AGENCY: Office of the Assistant unavailable, suitable/to be excess, and HUD will publish the property in a Secretary for Community Planning and unsuitable. The properties listed in the Notice showing it as either suitable/ Development, HUD. three suitable categories have been available for suitable/unavailable. ACTION: Notice. reviewed by the landholding agencies, For properties listed as suitable/ and each agency has transmitted to unavailable, the landholding agency has SUMMARY: This Notice identifies HUD: (1) Its intention to make the decided that the property cannot be unutilized, underutilized, excess, and property available for use to assist the declared excess or made available for surplus Federal property reviewed by homeless, (2) its intention to declare the use to assist the homeless, and the HUD for suitability for possible use to property excess to the agency’s needs, or property will not be available. assist the homeless. (3) a statement of the reasons the Properties listed as unsuitable will FOR FURTHER INFORMATION CONTACT: property cannot be declared excess or not be made available for any other Mark Johnston, room 7256, Department made available for use as facilities to purpose for 20 days from the date of this of Housing and Urban Development, assist the homeless. Notice. Homeless assistance providers 451 Seventh Street SW, Washington, DC Properties listed as suitable/available interested in a review by HUD of the 20410; telephone (202) 708–1226; TDD will be available exclusively for determination of unsuitability should number for the hearing- and speech- homeless use for a period of 60 days call the toll free information line at 1– impaired (202) 708–2565 (these form the date of this Notice. Homeless 800–927–7588 for detailed instructions telephone numbers are not toll-free), or assistance providers interested in any or write a letter to Mark Johnston at the call the toll-free Title V information line such property should send a written address listed at the beginning of this at 1–800–927–7588. expression of interest to HHS, addressed Notice. Included in the request for SUPPLEMENTARY INFORMATION: In to Brian Rooney, Division of Property review should be the property address accordance with 24 CFR part 581 and Management, Program Support Center, (including zip code), the date of section 501 of the Stewart B. McKinney HHS, room 5B–41, 5600 Fishers Lane, publication in the Federal Register, the Homeless Assistance Act (42 U.S.C. Rockville, MD 20857; (3010) 443–2265. landholding agency, and the property 11411), as amended, HUD is publishing (This is not a toll-free number.) HHS number. this Notice to identify Federal buildings will mail to the interested provider an For more information regarding and other real property that HUD has application packet, which will include particular properties identified in this 61136 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

Notice (i.e., acreage, floor plan, existing Naval Support Activity Landholding Agency: Navy sanitary facilities, exact street address), #24–25, 45–48, 54–55, 57, 59, 113–114 Property Number: 779740041 providers should contact the Monterey CA 93943– Status: Excess appropriate landholding agencies at the Landholding Agency: Navy Comment: 5200 sq. ft., needs rehab, presence Property Number: 779740033 of lead paint, most recent use—carport following addresses: COE: Mr. Robert Status: Excess Swieconek, Army Corps of Engineers, Bldg. 44 La Mesa Village Comment: 4257 sq. ft., needs rehab, presence Naval Support Activity Management & Pulaski Building, Room of asbestos/lead paint, most recent use— Monterey CA 93943– 4224, 20 Massachusetts Avenue, NW, housing Landholding Agency: Navy Washington, DC 20314–1000; (202) 761– Bldg. 26 La Mesa Village Property Number: 779740042 1749: Naval Support Activity Status: Excess Transportation: Mr. Philip Monterey CA 93943– Comment: 2400 sq. ft., needs rehab, presence Rockmaker, Acting Principal, Space Landholding Agency: Navy of lead paint, most recent use—carport Management, SVC–140, Transportation Property Number: 779740034 Bldg. 49 La Mesa Village Administrative Service Center, Status: Excess Naval Support Activity Department of Transportation, 400 7th Comment: 1276 sq. ft., needs rehab, presence Monterey CA 93943– Street, SW, Room 2310, Washington, DC of asbestos/lead paint, most recent use— Landholding Agency: Navy housing Property Number: 779740043 20590; (202) 366–1803; GSA: Mr. Brian Status: Excess K. Polly, Assistant Commissioner, 23 Bldgs. La Mesa Village Naval Support Activity Comment: 7685 sq. ft., needs rehab, presence General Services Administration, Office 1–5, 27–30, 50–53, 83–85, 124–125, 129–132, of asbestos/lead paint, most recent use— of Property Disposal, 18th and F Streets, 136 carport NW, Washington, DC 20405; (202) 501– Monterey CA 93943– Bldg. 56 La Mesa Village 2059; Navy: Mr. Charles C. Cocks, Landholding Agency: Navy Naval Support Activity Department of the Navy, Director, Real Property Navy: 779740035 Monterey CA 93943– Estate Policy Division, Naval Facilities Status: Excess Landholding Agency: Navy Engineering Command, Code 241A, 200 Comment: 4482 sq. ft., needs rehab, presence Property Number: 779740044 Stovall Street, Alexandria, VA 22332– of asbestos/lead paint, most recent use— Status: Excess housing Comment: 2400 sq. ft., needs rehab, presence 2300; (703) 325–7342; (These are not of lead paint, most recent use—carport toll-free numbers). 9 Bldgs. La Mesa Village Naval Support Activity Missouri Dated: November 6, 1997. # 137, 142–149 Meteorological Observatory Fred Karnas, Jr., Monterey CA 93943– 323 Farm Road Deputy Assistant Secretary for Economic Landholding Agency: Navy Monett Co: Berry MO 65708–9351 Development. Property Number: 779740036 Landholding Agency: GSA Status: Excess TITLE V, FEDERAL SURPLUS PROPERTY Property Number: 549740006 Comment: 4482 sq. ft., needs rehab, presence Status: Surplus PROGRAM FEDERAL REGISTER REPORT of asbestos/lead paint, most recent use— FOR 11/14/97 Comment: 2230 sq. ft., most recent use— housing weather service office, presence of asbestos Suitable/Available Properties Bldg. 115 La Mesa Village GSA Number: 7–C–MO–0639 Naval Support Activity Nebraska Buildings (by State) Monterey CA 93943– California Landholding Agency: Navy Forecast Office 11404 N 72nd Street 3 Bldgs. La Mesa Village Property Number: 779740037 Omaha Co: Douglas NE 58102– Naval Support Activity Status: Excess Landholding Agency: GSA #39, 40, 117 Comment: 6000 sq. ft., needs rehab, presence Property Number: 549740005 Monterey CA 93943– of lead paint, most recent use—carport Status: Surplus Landholding Agency: Navy Bldg. 120 La Mesa Village Comment: 4755 sq. ft., most recent use— Property Number: 779740030 Naval Support Activity weather service office, presence of asbestos Status: Excess Monterey CA 93943– GSA Number: 7–C–NE–0522 Comment: 3906 sq. ft., needs rehab, presence Landholding Agency: Navy of asbestos/lead paint, most recent use— Property Number: 779740038 Texas housing Status: Excess Bldg. 115 9 Bldgs. La Mesa Village Comment: 5200 sq. ft., needs rehab, presence Fort Crockett/43rd St. Housing Naval Support Activity of lead paint, most recent use—housing Galveston Co: Galveston TX 77553– #31, 33, 35, 36, 41, 116, 118, 121, 122 Bldg. 23 La Mesa Village Landholding Agency: GSA Monterey CA 93943– Naval Support Activity Property Number: 879630001 Landholding Agency: Navy Monterey CA 93943– Status: Surplus Property Number: 779740031 Landholding Agency: Navy Comment: 500 sq. ft., most recent use-garage, Status: Excess Property Number: 779740039 historic properties Comment: 7109 sq. ft., needs rehab, presence Status: Excess GSA Number: 7–U–TX–0549G, H, I of asbestos/lead paint, most recent use— Comment: 2800 sq. ft., needs rehab, presence Bldg. 114 housing of lead paint, most recent use—carport Fort Crockett/43rd St. Housing 5 Bldgs. La Mesa Village Bldg. 34 La Mesa Village Galveston Co: Galveston TX 77553– Naval Support Activity Naval Support Activity Landholding Agency: GSA #32, 38, 42, 119, 123 Monterey CA 93943– Property Number: 879630002 Monterey CA 93943– Landholding Agency: Navy Status: Surplus Landholding Agency: Navy Property Number: 779740040 Comment: 3150 sq. ft. per floor, 2-story, most Property Number: 779740032 Status: Excess recent use— residence, historic properties Status: Excess Comment: 8600 sq. ft., needs rehab, presence GSA Number: 7–U–TX–0549G, H, I Comment: 4392 sq. ft., needs rehab, presence of lead paint, most recent use—carport Bldg. 113 of asbestos/lead paint, most recent use— Bldg. 37 La Mesa Village Fort Crockett/43rd St. Housing housing Naval Support Activity Galveston Co: Galveston TX 77553– 12 Bldgs. La Mesa Village Monterey CA 93943– Landholding Agency: GSA Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61137

Property Number: 879630003 Comment: 1632 sq. ft. per floor, 2-story, most Comment: 5000 sq. ft., most recent use— Status: Surplus recent use—residential, historic properties storage, off-site use only Comment: 200 sq. ft., most recent use— GSA Number: 7–U–TX–0549G, H, I Housing garage, historic properties Bldg. 441 Rt. 637—Gwynnville Road GSA Number: 7–U–TX–0549G, H, I Fort Crockett/53rd St. Housing Gwynn Island Co: Mathews VA 23066– Bldg. 112 Galveston Co: Galveston TX 77553– Landholding Agency: GSA Fort Crockett/43rd St. Housing Landholing Agency: GSA Property Number: 879120082 Galveston Co: Galveston TX 77553– Property Number: 879630013 Status: Excess Landholding Agency: GSA Status: Surplus Comment: 929 sq. ft., one story residence Property Number: 879630004 Comment: 1632 sq. ft. per floor, 2-story, most GSA Number: 4–U–DE–461 Status: Surplus recent use—residential, historic properties Land (by State) Comment: 2880 sq. ft. per floor, 2-story, most GSA Number: 7–U–TX–0549G, H, I Colorado recent use—residential, historic properties Bldg. 442 GSA Number: 7–U–TX–0549G, H, I Fort Crockett/53rd St. Housing Erie Substation Bldg. 111 Galveston Co: Galveston TX 77553– Hwy 87 Fort Crockett/43rd St. Housing Landholing Agency: GSA Co: Weld CO Landholding Agency: GSA Galveston Co: Galveston TX 77553– Property Number: 879630014 Property Number: 549740002 Landholding Agency: GSA Status: Surplus Status: Excess Property Number: 879630005 Comment: 1632 sq. ft. per floor, 2-story, most Comment: 2.75 acres, most recent use— Status: Surplus recent use—residential, historic properties elecrtical substation, (transmission lines). Comment: 2880 sq. ft. per floor, 2-story, most GSA Number: 7–U–TX–0549G, H, I recent use—residential, historic properties Nebraska Bldg. 106 GSA Number: 7–U–TX–0549G, H, I Fort Crockett/Seawall Blvd. Housing Radar Site Bldg. 110 Galveston Co: Galveston TX 77553– Hwy 92 Fort Crockett/43rd St. Housing Landholing Agency: GSA Gandy Co: Logan NE 69163– Galveston Co: Galveston TX 77553– Property Number: 879630015 Landholding Agency: GSA Landholding Agency: GSA Status: Surplus Property Number: 549740007 Property Number: 879630006 Comment: 2000 sq. ft. per floor, 2-story, most Status: Surplus Status: Surplus recent use—residential, historic properties Comment: .52 acres Comment: 500 sq. ft., most recent use— GSA Number: 7–U–TX–0549G, H, I GSA Number: 7–C–NE–0523 garage, historic properties South Dakota GSA Number: 7–U–TX–0549G, H, I Bldg. 105 Fort Crockett/Seawall Blvd. Housing Old Oahe Lock & Dam Bldg. 109 Galveston Co: Galveston TX 77553– Lake Oahe Project Fort Crockett/43rd St. Housing Landholing Agency: GSA Ft. Pierre Co: Stanley SD 57501– Galveston Co: Galveston TX 77553– Property Number: 879630016 Landholding Agency: GSA Landholding Agency: GSA Status: Surplus Property Number: 549740004 Property Number: 879630007 Comment: 1634 sq. ft. per floor, 2-story, most Status: Excess Status: Surplus recent use—residential, historic properties Comment: 1.91 acres, most recent use—old Comment: 2880 sq. ft. per floor, 2-story, most GSA Number: 7–U–TX–0549G, H, I railroad grade, subject to existing recent use—residential, historic properties easements GSA Number: 7–U–TX–0549G, H, I Bldg. 104 Fort Crockett/Seawall Blvd. Housing GSA Number: 7–D–SD–0520 Bldg. 428 Galveston Co: Galveston TX 77553– Wyoming Fort Crockett/53rd St. Housing Landholing Agency: GSA Pavillion Substation Galveston Co: Galveston TX 77553– Property Number: 879630017 Landholding Agency: GSA Wind River Meridian Status: Surplus Co: Fremont WY Property Number: 879630009 Comment: 1634 sq. ft. per floor, 2-story, most Status: Surplus Landholding Agency: GSA recent use—residential, historic properties Property Number: 549740003 Comment: 2700 sq. ft., most recent use— GSA Number: 7–U–TX–0549G, H, I warehouse/office, historic properties Status: Excess GSA Number: 7–U–TX–0549G, H, I Bldg. 103 Comment: 0.11 acre tract, most recent use— Fort Crockett/Seawall Blvd. Housing powerline substation Bldg. 433 Galveston Co: Galveston TX 77553– Fort Crockett/53rd St. Housing Landholing Agency: GSA Unsuitable Properties Galveston Co: Galveston TX 77553– Property Number: 879630018 Buildings (by State) Landholding Agency: GSA Status: Surplus California Property Number: 879630010 Comment: 1634 sq. ft. per floor, 2-story, most Status: Surplus recent use—residential, historic properties Bldg. 80 Comment: 1632 sq. ft. per floor, 2-story, most GSA Number: 7–U–TX–0549G, H, I Naval Weapons Station, Concord recent use—residential, historic properties Concord CA 94520–5100 GSA Number: 7–U–TX–0549G, H, I Bldg. 102 Fort Crockett/Seawall Blvd. Housing Landholding Agency: Navy Bldg. 439 Galveston Co: Galveston TX 77553– Property Number: 779740011 Fort Crockett/53rd St. Housing Landholing Agency: GSA Status: Excess Galveston Co: Galveston TX 77553– Property Number: 879630019 Reason: Within 2000 ft. of flammable or Landholing Agency: GSA Status: Surplus explosive material. Secured Area Property Number: 879630011 Comment: 1634 sq. ft. per floor, 2-story, most Bldg. 95 Status: Surplus recent use—residential, historic properties Naval Weapons Station, Concord Comment: 1632 sq. ft. per floor, 2-story, most GSA Number: 7–U–TX–0549G, H, I Concord CA 94520–5100 recent use—residential, historic properties Landholding Agency: Navy GSA Number: 7–U–TX–0549G, H, I Virginia Property Number: 779740012 Bldg. 440 Bldg. 2069 Status: Excess Fort Crockett/53rd St. Housing Naval Amphibious Base Little Creek Reason: Within 2000 ft. of flammable or Galveston Co: Galveston TX 77553– Norfolk VA 23521–2616 explosive material. Secured Area Landholing Agency: GSA Landholding Agency: Navy Bldg. 175 Property Number: 879630012 Property Number: 779740064 Naval Weapons Station, Concord Status: Surplus Status: Excess Concord CA 94520–5100 61138 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

Landholding Agency: Navy Bldg. 1A9 Michigan Property Number: 779740013 Naval Weapons Station, Concord Quarters B Status: Excess Concord CA 94520–5100 U.S. Coast Guard Reason: Within 2000 ft. of flammable or Landholding Agency: Navy Marquette MI 49855– explosive material. Secured Area Property Number: 779740023 Landholding Agency: DOT Bldg. 179 Status: Excess Property Number: 879740001 Naval Weapons Station, Concord Reason: Within 2000 ft. of flammable or Status: Unutilized Concord CA 94520–5100 explosive material Secured Area Reason: Secured Area Landholding Agency: Navy Bldg. 1A29 Missouri Property Number: 779740014 Naval Weapons Station, Concord Status: Excess Concord CA 94520–5100 South Coast Guard Base Iron Street Reason: Secured Area Landholding Agency: Navy St. Louis MO 63111–2536 Bldg. 180 Property Number: 779740024 Landholding Agency: GSA Naval Weapons Station, Concord Status: Excess Property Number: 549740010 Concord CA 94520–5100 Reason: Within 2000 ft. of flammable or Status: Surplus Landholding Agency: Navy explosive materials Secured Area Property Number: 779740015 Reason: Within 2000 ft. of flammable or Bldg. 1A30 explosive material Floodway Extensive Status: Excess Naval Weapons Station, Concord Reason: Secured Area deterioration Concord CA 94520–5100 GSA Number: 7–U–MO–0576–B Bldg. 197 Landholding Agency: Navy North Carolina Naval Weapons Station, Concord Property Number: 779740025 Concord CA 94520–5100 Status: Excess Bldg. TC–614 Landholding Agency: Navy Reason: Secured Area Camp Lejeune Property Number: 779740016 Camp Lejeune Co: Onslow NC 28542–0004 Bldg. 1A35 Status: Excess Landholding Agency: Navy Naval Weapons Station, Concord Reason: Secured Area Property Number: 779740046 Concord CA 94520–5100 Bldg. A6A Status: Unutilized Landholding Agency: Navy Reason: Secured Area Extensive deterioration Naval Weapons Station, Concord Property Number: 779740026 Concord CA 94520–5100 Status: Excess Bldg. TT–38 Landholding Agency: Navy Reason: Within 2000 ft. of flammable or Camp Lejeune Property Number: 779740017 explosive material Secured Area Camp Lejeune Co: Onslow NC 28542–0004 Status: Excess Landholding Agency: Navy Reason: Within 2000 ft. of flammable or Bldg. 1A41 Property Number: 779740047 explosive material. Secured Area Naval Weapons Station, Concord Status: Unutilized Concord CA 94520–5100 Reason: Secured Area Extensive deterioration Bldg. A26 Landholding Agency: Navy Bldg. 156 Naval Weapons Station, Concord Property Number: 779740027 Marine Corps Air Station Concord CA 94520–5100 Status: Excess Landholding Agency: Navy Havelock Co: Craven NC 28533– Reason: Within 2000 ft. of flammable or Landholding Agency: Navy Property Number: 779740018 explosive material Secured Area Status: Excess Property Number: 779740048 Reason: Within 2000 ft. of flammable or Bldg. 1A44 Status: Excess explosive material. Secured Area Naval Weapons Station, Concord Reason: Secured Area Extensive deterioration Concord CA 94520–5100 Bldg. A30 Bldg. 183 Landholding Agency: Navy Naval Weapons Station, Concord Marine Corps Air Station Property Number: 779740028 Concord CA 94520–5100 Havelock Co: Craven NC 28533– Status: Excess Landholding Agency: Navy Landholding Agency: Navy Reason: Within 2000 ft. of flammable or Property Number: 779740019 Property Number: 779740049 explosive material Secured Area Status: Excess Status: Excess Reason: Within 2000 ft. of flammable or Bldg. 1A47 Reason: Secured Area Extensive deterioration explosive material. Secured Area Naval Weapons Station, Concord Bldg. 925 Concord CA 94520–5100 Bldg. E102 Marine Corps Air Station Naval Weapons Station, Concord Landholding Agency: Navy Havelock Co: Craven NC 28533– Concord CA 94520–5100 Property Number: 779740029 Landholding Agency: Navy Landholding Agency: Navy Status: Excess Property Number: 779740050 Property Number: 779740020 Reason: Within 2000 ft. of flammable or Status: Excess Status: Excess explosive material Secured Area Reason: Secured Area Extensive deterioration Reason: Within 2000 ft. of flammable or Bldgs. 27, 30, 33, 36 Bldg. 926 explosive material Secured Area Naval Command, Control & Ocean Surv. Marine Corps Air Station Bldg. E104 Center Havelock Co: Craven NC 28533– Naval Weapons Station, Concord San Diego CA Landholding Agency: Navy Concord CA 94520–5100 Landholding Agency: Navy Property Number: 779740051 Landholding Agency: Navy Property Number: 779740045 Status: Excess Property Number: 779740021 Status: Excess Reason: Secured Area Extensive deterioration Reason: Within 2000 ft. of flammable or Status: Excess Bldg. 938 explosive material Secured Area Reason: Within 2000 ft. of flammable or Marine Corps Air Station explosive material Secured Area Connecticut Havelock Co: Craven NC 28533– Bldg. E111 Hezekiah S. Ramsdell Farm Landholding Agency: Navy Naval Weapons Station, Concord West Thompson Lake Property Number: 779740052 Concord CA 94520–5100 North Grosvenordale Co: Windham CT Status: Excess Landholding Agency: Navy 06255–9801 Reason: Secured Area Extensive deterioration Property Number: 779740022 Landholding Agency: COE Bldg. 954 Status: Excess Property Number: 319740001 Marine Corps Air Station Reason: Within 2000 ft. of flammable or Status: Unutilized Havelock Co: Craven NC 28533– explosive material Secured Area Reason: Floodway Extensive deterioration Landholding Agency: Navy Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61139

Property Number: 779740053 Virginia maintained under the management Status: Excess Bldg. 2081 program of the Republic of South Africa, Reason: Secured Area Extensive deterioration Naval Amphibious Base Little Creek for the purpose of enhancement of the Bldg. 1021 Norfolk VA 23521–2616 survival of the species. Marine Corps Air Station Landholding Agency: Navy Havelock Co: Craven NC 28533– Property Number: 779740065 Written data or comments should be Landholding Agency: Navy Status: Excess submitted to the Director, U.S. Fish and Property Number: 779740054 Reason: Extensive deterioration Wildlife Service, Office of Management Status: Excess Bldg. 3138 Authority, 4401 North Fairfax Drive, Reason: Secured Area Extensive deterioration Naval Amphibious Base Little Creek Room 700, Arlington, Virginia 22203 Bldg. 1098 Norfolk VA 23521–2616 and must be received by the Director Marine Corps Air Station Landholding Agency: Navy within 30 days of the date of this Havelock Co: Craven NC 28533– Property Number: 779740066 publication. Landholding Agency: Navy Status: Excess Property Number: 779740055 Reason: Extensive deterioration The public is invited to comment on Status: Excess the following application for permits to Reason: Secured Area Extensive deterioration Land (by State) conduct certain activities with marine Bldg. 1655 South Carolina mammals. The application was Marine Corps Air Station 1156 sq. ft. site submitted to satisfy requirements of the Havelock Co: Craven NC 28533– 89 & 91 Broad Street Marine Mammal Protection Act of 1972, Landholding Agency: Navy Charleston SC as amended (16 U.S.C. 1361 et seq.) and Property Number: 779740056 Landholding Agency: GSA the regulations governing marine Status: Excess Property Number: 549740009 Reason: Secured Area Extensive deterioration mammals (50 CFR 18). Status: Excess PRT–836264 Bldg. 1738 Reason: Other Secured Area Marine Corps Air Station Comment: landlocked Applicant: Richard N. Biewer, St. Clair, MI. Havelock Co: Craven NC 28533– GSA Number: 4–G–SC–592 Landholding Agency: Navy The applicant requests a permit to Property Number: 779740057 Wyoming import a polar bear (Ursus maritimus) Status: Excess Cody Industrial Area sport-hunted from the Lancaster Sound Reason: Secured Area Extensive deterioration Cody Co: Park WY 82414- polar bear population, Northwest Bldg. 1989 Landholding Agency: GSA Territories, Canada for personal use. Marine Corps Air Station Property Number: 549740008 Havelock Co: Craven NC 28533– Status: Excess PRT 835829 Landholding Agency: Navy Reason: Within 2000 ft. of flammable or Applicant: Curtis H. Springer, Urbana, OH. Property Number: 779740058 explosive material Status: Excess GSA Number: 7–I–WY–0539 The applicant requests a permit to Reason: Secured Area Extensive deterioration [FR Doc. 97–29856 Filed 11–13–97; 8:45 am] import a polar bear (Ursus maritimus) sport-hunted from the South Beaufort Bldg. 3172 BILLING CODE 4210±29±M Marine Corps Air Station Sea polar bear population, Northwest Havelock Co: Craven NC 28533– Territories, Canada for personal use. Landholding Agency: Navy PRT–836256 Property Number: 779740059 DEPARTMENT OF THE INTERIOR Status: Excess Applicant: Charles Chappell, Gibsonia. Reason: Secured Area Extensive deterioration Fish and Wildlife Service The applicant requests a permit to Bldg. 3178 Marine Corps Air Station Receipt of Applications for Permit import a polar bear (Ursus maritimus) Havelock Co: Craven NC 28533– sport-hunted from the Lancaster Sound Landholding Agency: Navy The following applicants have polar bear population, Northwest Property Number: 779740060 applied for a permit to conduct certain Territories, Canada for personal use. activities with endangered species. This Status: Excess PRT–836255 Reason: Secured Area Extensive deterioration notice is provided pursuant to Section Applicant: Robert Chappell, Oley, PA. Bldg. 4260 10(c) of the Endangered Species Act of Marine Corps Air Station 1973, as amended (16 U.S.C. 1531, et The applicant requests a permit to Havelock Co: Craven NC 28533 seq.): import a polar bear (Ursus maritimus) Landholding Agency: Navy PRT–836274 Property Number: 779740061 sport-hunted from the Lancaster Sound Status: Excess Applicant: Lance K. Parks, Billings, MT. polar bear population, Northwest Territories, Canada for personal use. Reason: Secured Area Extensive deterioration The applicant requests a permit to Pennsylvania import the sport-hunted trophy of one Documents and other information Bldg. 022 male bontebok (Damaliscus pygargus submitted with these applications are Naval Inventory Control Point dorcas) culled from a captive herd available for review, subject to the Mechanicsburg PA 17055–0788 maintained under the management requirements of the Privacy Act and Landholding Agency: Navy program of the Republic of South Africa, Freedom of Information Act, by any Property Number: 779740062 for the purpose of enhancement of the party who submits a written request for Status: Unutilized a copy of such documents to the Reason: Extensive deterioration survival of the species. PRT–833085 following office within 30 days of the Bldg. 913 date of publication of this notice: U.S. Naval Inventory Control Point Applicant: Wayne Clark, Aurora, CO. Fish and Wildlife Service, Office of Mechanicsburg PA 17055–0788 Landholding Agency: Navy The applicant requests a permit to Management Authority, 4401 North Property Number: 779740063 import the sport-hunted trophy of one Fairfax Drive, Room 700, Arlington, Status: Unutilized male bontebok (Damaliscus pygargus Virginia 22203. Phone: (703/358–2104); Reason: Extensive deterioration dorcas) culled from a captive herd FAX: (703/358–2281). 61140 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

Dated: November 7, 1997. Supervisor, at the above Carlsbad implementing agreement for which a 30- Mary Ellen Amtower, address; telephone (760) 431–9440. day public review period was announced in the Federal Register on Acting Chief, Branch of Permits, Office of SUPPLEMENTARY INFORMATION: Management Authority. October 31, 1997 (62 FR 58976). The [FR Doc. 97–29918 Filed 11–13–97; 8:45 am] Availability of Documents County of San Diego submitted an BILLING CODE 4310±55±P Persons wishing to obtain copies of application with its Subarea Plan and the documents or additional background Implementing Agreement on November material should contact the County of 6, 1997. The regional MSCP Plan covers an DEPARTMENT OF THE INTERIOR San Diego, Department of Planning and approximately 900-square-mile area Land Use, 5201 Ruffin Road, Suite B, Fish and Wildlife Service (580,000 acres) in southwestern San Mail Station 0650, San Diego, California Diego County. Under the MSCP Plan, 92123; telephone (619) 260–8316. Receipt of an Application From the approximately 171,917 acres of vacant Documents will be available for public County of San Diego, California, for an land, including 167,667 acres of wildlife inspection, by appointment, during Incidental Take Permit habitat, will be preserved and managed normal business hours (8 a.m. to 12 p.m. within a designated area referred to as AGENCY: Fish and Wildlife Service, and 1 p.m. to 5 p.m.), Monday through the Multiple Habitat Planning Area. Interior. Friday, at the above County office and Nearly half of the MSCP planning area ACTION: Notice. at the Carlsbad Fish and Wildlife Office is within the County of San Diego (see ADDRESSES). Subarea. Approximately 73 percent SUMMARY: The County of San Diego, Background (184,248 acres) of the County Subarea California (County), has applied to the provides habitat for native plants and Fish and Wildlife Service for a 50-year Under section 9 of the Act and its wildlife, whereas the remaining 27 permit pursuant to section 10(a)(1)(B) of implementing regulations, the take of percent is disturbed, developed, or the Endangered Species Act (Act) to wildlife species listed as threatened or agricultural land. Of the existing habitat incidentally take up to 85 species. Take endangered is prohibited. The term in the County Subarea, approximately would occur in conjunction with urban ‘‘take’’ means to harass, harm, pursue, 55 percent (101,268 acres) is expected to growth within the southern coastal hunt, shoot, wound, kill, trap, capture, be preserved under the Subarea Plan, in portion of the County. The application collect, or attempting to engage in any a manner consistent with the regional includes the County of San Diego such conduct. Harm is further defined MSCP Plan. Subarea Plan (Subarea Plan) and an to include significant habitat The Subarea Plan is divided into three Implementing Agreement, both of which modification or degradation that results segments: the Lake Hodges segment, the were prepared in accordance with the in death or injury to listed species by Southern segment, and the Metro- regional Multiple Species Conservation significantly impairing essential Lakeside-Jamul segment. The Lake Program (MSCP). The Subarea Plan behavior patterns, including breeding, Hodges and Southern segments include would provide for the incidental take of feeding, or sheltering. Under limited projects where development and species listed under the Act and those circumstances, the Service may issue preserve boundaries have been that may be listed in the future. The permits to take listed wildlife if such determined and delineated in the County’s planning area includes taking is incidental to, and not the Subarea Plan. Several major and minor approximately 252,132 acres of purpose of, otherwise lawful activities. amendment areas have been designated unincorporated land. The Subarea Plan The taking prohibitions of the Act do in these segments. Take for species addresses 85 sensitive plant and animal not apply to listed plants on private within these amendment areas would species and their habitats, and creates a lands unless such take is in violation of only be authorized after they have process for the issuance of permits and trespass law or would violate State law. become part of the Subarea Plan through other authorizations under the Federal Regulations governing permits for the appropriate amendment process. and California Endangered Species Acts, endangered and threatened species are The Metro-Lakeside-Jamul segment is and the California Natural Community in 50 CFR 17.22 and 17.32. Under composed of lands where preserve Conservation Planning Act. The section 10(a)(1)(B) of the Act, the boundaries will be determined in the County’s Subarea Plan and Service may issue incidental take future based upon standards, goals, and Implementing Agreement are available permits for listed species with an criteria described in the Subarea Plan for public review and comment. The approved conservation plan. Among and in the County’s Biological Service specifically requests comment other criteria, issuance of such permits Mitigation Ordinance. on the appropriateness of the ‘‘No must not jeopardize the continued Environmental Documentation Surprises’’ assurances contained in existence of listed plant and animal section 9 of the Implementing species. To ensure compliance with the Agreement. The MSCP Plan is a regional habitat National Environmental Policy Act and conservation plan that includes 12 local the California Environmental Policy DATES: Written comments on the permit jurisdictions. Each jurisdiction is Act, in January, 1997, the Service (lead application should be received on or expected to apply for incidental take Federal Agency) and the City of San before December 15, 1997. permits in conjunction with finalization Diego (lead local agency) completed a ADDRESSES: Comments should be of a subarea plan that is consistent with final Environmental Impact Report/ addressed to Mr. Gail Kobetich, Field the regional MSCP Plan. The cities of Statement on the MSCP Plan and draft Supervisor, Carlsbad Fish and Wildlife San Diego and Poway finalized their subarea plans. This culminated a 2-year Office, 2730 Loker Avenue West, subarea plans and received take period during which the Service Carlsbad, California 92008. Written authorizations under the MSCP on July complied with scoping and public comments may be sent by facsimile to 18, 1997, and July 19, 1996, notice requirements, providing (760) 431–9618. respectively. The City of La Mesa has extensive opportunity for public FOR FURTHER INFORMATION CONTACT: Ms. submitted an application, subarea plan, comment on the MSCP Plan, draft Sherry Barrett, Assistant Field environmental assessment, and subarea plans, template implementing Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61141 agreements, and the draft Dated: November 6, 1997. 18 U.S.C. § 1161) and shall serve as the Environmental Impact Report/Statement John H. Doebel, ‘‘Liquor Ordinance’’ referenced herein. (60 FR 12246, 60 FR 25734, 60 FR Acting Regional Director, Region 1, Portland, The lands which are open to the sale, 32990, 61 FR 45983, 61 FR 54675, 62 FR Oregon. possession, and consumption of 14938). No further environmental [FR Doc. 97–29967 Filed 11–13–97; 8:45 am] alcoholic beverages shall be only documentation is necessary for the BILLING CODE 4310±55±P commercial establishments in which the County Subarea Plan because it has not Tribe owns a controlling interest and changed significantly since finalization which are located on the Reservation; of the Environmental Impact Report/ DEPARTMENT OF THE INTERIOR provided that any Tribal convenience Statement. store shall only be open to sale and Bureau of Indian Affairs Five project alternatives were possession, but not consumption, of alcoholic beverages. analyzed in the final Environmental Tribal Liquor Ordinance for the Kaibab Impact Report/Statement: (1) proposed Band of Paiute Indians of the Kaibab Section I–10–020: Control Desired project alternative (approve and Indian Reservation of Arizona This Ordinance shall govern all liquor implement the MSCP Plan that would sales and distribution on the establish a preserve within the Multi- AGENCY: Bureau of Indian Affairs, reservation, will increase the ability of Habitat Planning Area; (2) no project/no Interior. the Tribe to control reservation liquor action alternative; (3) coastal sage scrub ACTION: Notice. distribution and possession, and will alternative; (4) biologically preferred SUMMARY: This Notice is published in provide an additional source of revenue alternative; and (5) public lands accordance with authority delegated by for tribal operations. alternative. Each alternative was the Secretary of the Interior to the evaluated for its potential to result in Assistant Secretary—Indian Affairs by Section I–10–030: Goals of Regulation significant adverse environmental 209 DM 8, and in accordance with the Tribal regulation of the sale, impacts and the adequacy or Act of August 15, 1953 , 67 Stat. 586, possession, and consumption of liquor inadequacy of the proposed measures to 18 U.S.C. § 1161. I certify that on the reservation is necessary to avoid, minimize, and substantially Ordinance No. 15, Tribal Liquor protect the health, security, and general reduce and mitigate such negative Ordinance for the Kaibab Band of Paiute welfare of the Tribe, and to address effects. Indians of the Kaibab Indian tribal concerns relating to alcohol use The preferred alternative analyzed by Reservation of Arizona, was duly on the reservation. In order to further the Service was approval of the MSCP adopted and certified by the Kaibab these goals and to provide an additional Plan and issuance of incidental take Paiute Tribal Council on October 5, source of governmental revenue, the permits with the mitigating, 1996. The Ordinance provides for the Tribe has adopted this Ordinance, minimizing, and monitoring measures regulation of the sale, possession and which shall be liberally construed to outlined in the proposed project consumption of liquor in the area of the fulfill the purposes for which it has alternative. The underlying goal of the Kaibab Indian Reservation, under the been adopted. This Ordinance is preferred alternative is to implement jurisdiction of the Kaibab Band of Paiute authorized by the Preamble and Article ecosystem-based conservation measures Indians, and is in conformity with the VI, Section I (a), (b), (c), (d), (e), (h), (j), aimed at the protection of multiple laws of the State of Arizona. and (k) and Section 2 (e) of the vegetation types on a regional scale, DATES: This Ordinance is effective Constitution and By-laws of the Tribe while accommodating compatible November 14, 1997. which provide, among other things, that development. The MSCP plan is FOR FURTHER INFORMATION CONTACT: the Tribal Council shall have the power expected to result in the Bettie Rushing, Division of Tribal ‘‘to promulgate ordinances and implementation of a comprehensive Government Services, 1849 C Street resolutions to promote and protect the preserve strategy for coastal sage scrub NW, MS 4603–MIB, Washington, D.C. peace, health, education, safety and and related vegetation types in the 20240–4001; telephone (202) 208–3463. welfare of the band, its members and all planning area, that is expected to SUPPLEMENTARY INFORMATION: The Tribal other persons within its jurisdiction. provide long-term benefits to the 85 Liquor Ordinance for the Kaibab Band Section 1–20–010: Definitions of Words covered species and their habitats. of Paiute Indians is to read as follows: As used in This Ordinance, the The Service will evaluate the permit Tribal Liquor Ordinance for the Kaibab following words shall have the application from the County of San Band of Paiute Indians of the Kaibab following meanings unless the context Diego, associated documents, and Indian Reservation of Arizona clearly requires otherwise: comments submitted thereon to (a) ‘‘Alcohol’’ means that substance Section 1–10–010: Legislative Control determine whether the application known as ethyl alcohol, hydrated oxide meets the requirements of the Act. A Federal law currently prohibits the of ethyl, or spirit of wine which is final decision on permit issuance will introduction of liquor into Indian commonly produced by the be made no sooner than 30 days from country and expressly delegates to tribes fermentation or distillation of grain, the date of this notice. the decision regarding when and to starch, molasses, or sugar, or other Authority what extent liquor transactions shall be substances including all dilutions and permitted on their reservations. The mixtures of this substance. This notice is provided pursuant to Kaibab Band of Paiute Indians (herein, (b) ‘‘Alcoholic Beverage’’ is section 10(c) of the Endangered Species the ‘‘Tribe’’) has decided to open certain synonymous with the term ‘‘liquor’’ as Act of 1973, as amended, and Service lands described below within its defined at Section 1–20–010(d) hereof. regulations for implementing the jurisdiction to the possession, (c) ‘‘Beer’’ means any beverage National Environmental Policy Act (40 consumption and sale of liquor by obtained by the fermentation or infusion CFR 1506.6). All comments received enacting this Ordinance, which is or decoction of pure hops, or pure will become part of the public record adopted pursuant to the Act of August extract of hops and pure barley malt or and may be released. 15, 1953 (Pub. L. 83–277, 67 Stat. 588, other wholesome grain or cereal in 61142 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices water and which contains not more than pursuant to the Constitution and liquor license may sell alcoholic four percent of alcohol by volume. ordinances of the Tribe. beverages for a period of one year. (d) ‘‘Liquor’’ includes the four (o) ‘‘Wine’’ means any alcoholic Section 1–40–010: General varieties of liquor herein defined beverage obtained by fermentation of (alcohol, spirits, wine, and malt liquor), fruits (grapes, berries, apples, etc.) or Notwithstanding any other provision and all fermented, spirituous, vinous, or other agricultural product containing of this Ordinance, no penalty may be malt liquor, or combinations thereof, sugar, to which any saccharine imposed pursuant or related to this and mixed liquor, a part of which is substances may have been added before, Ordinance in contravention or in excess fermented, spirituous, vinous, or malt during, or after fermentation, and of any limitation imposed by the Indian liquor, or otherwise intoxicating. Every containing not more than seventeen Civil Rights Act of 1968, 82 Stat. 77, 25 liquid or solid or semisolid or other percent of alcohol by weight, including U.S.C. § 1301 et seq. (‘‘ICRA’’) or other substance, patented or not, containing sweet wines fortified with wine spirits, applicable Federal law. such as port, sherry, muscatel, and alcohol, spirits, wine or malt liquor, and Section 1–40–020: Illegal angelica, not exceeding seventeen all drinks or drinkable liquids and all Transportation, Still, or Sale Without percent of alcohol by weight. preparations or mixtures capable of Permit human consumption and any liquid, Section 1–30–010: Authorization semisolid, solid, or other substances, Any person who, within the containing more than one percent of The Tribe, its members and other reservation and without a valid tribal alcohol by weight shall be conclusively persons, including, but not limited to, liquor license, sells or offers for sale or deemed to be intoxicating. corporations, partnerships, associations transport in any manner any liquor (e) ‘‘Malt Liquor’’ means beer, strong and natural persons, are hereby within the boundaries of the reservation beer, ale, stout, and porter. authorized to introduce, sell, purchase, in violation of this Ordinance, or who (f) ‘‘Package’’ means any container or distribute, warehouse, possess and operates or has in his possession any receptacle used for holding liquor. consume alcoholic beverages within spirit distillation device or any (g) ‘‘Reservation’’ means all lands of certain areas of the Reservation as substance meant or specifically the Tribe described or referenced in the described in Section 1–10–010, in concocted to be distilled into liquor (not Tribe’s Constitution, including, but not accordance with the laws of the State of including devices or mash related to the limited to, any lands which may in the Arizona (including Arizona liquor home manufacture of beer, strong beer, future come within the jurisdiction of licensing provisions); provided, or wine solely for the purpose of the Tribe by any lawful means. however, that any person or entity, personal consumption and not for sale), other than the Tribe, which sells (h) ‘‘Sale’’ and ‘‘Sell’’ mean exchange, shall be guilty of an Offense punishable alcoholic beverages within the barter, and traffic; and also include the upon conviction in the Tribal Court. reservation must first obtain a tribal selling or supplying or distributing, by Section 1–40–030: Illegal Purchase of liquor license from the Tribal Council any means whatsoever, of liquor, or of Liquor and such sales shall be subject to taxes any liquid known or described as ‘‘beer’’ and license fees as may be established Any person who buys liquor within or by any name whatsoever commonly by duly enacted resolution of the Tribal the boundaries of the reservation other used to describe ‘‘malt liquor’’ or Council. than from an individual or entity ‘‘liquor’’ or ‘‘wine’’ by any person to any Section 1–30–020: Distribution of properly licensed pursuant to this person. Taxes and Fees Ordinance shall be guilty of an Offense (i) ‘‘Spirits’’ means any beverage All taxes and license fees related to punishable upon conviction in the which contains alcohol obtained by the sale or introduction of alcoholic Tribal Court. distillation, including wines exceeding beverages on the reservation shall be Section 1–40–040: Furnishing Liquor to seventeen percent of alcohol by weight. remitted to the Tribal Council through Minors (j) ‘‘Strong Beer’’ means any beverage the Tribal Comptroller, who shall keep obtained by the alcoholic fermentation accurate records of all such receipts, Except in the case of liquor given or or infusion or decoction of pure hops, and shall be subject to distribution by administered to a person by his or pure extract of hops and pure barley the Tribal Council in accordance with physician or dentist for medicinal malt or other wholesome grain or cereal its usual appropriation procedures for purposes, no person under the age of 21 in water, including ale, stout, and governmental and social services. years shall consume, acquire or have in porter, containing more than four his possession any alcoholic beverages percent of alcohol by weight. Section 1–30–030: Tribal Liquor License except when such beverages are used in (k) ‘‘This Ordinance’’ means this Elements connection with religious services. No liquor code, which shall serve the Tribe Tribal liquor licenses shall authorize person shall permit any other person as the liquor ordinance referenced at 18 the holder thereof to sell alcoholic under the age of 21 to consume liquor U.S.C. § 1161. beverages at wholesale or at retail in on his premises or on any premises (l) ‘‘Tribe’’ means, and ‘‘Tribal’’ refers cans, bottles or any other package under his control except in those to, the Kaibab Band of Paiute Indians, a within a defined area; provided, situations set out in this section. Any federally recognized Tribe of Native however, that a tribal liquor license person violating this section shall be American Indians, listed at 53 F.R. shall be valid only if the holder thereof guilty of an Offense punishable upon 52829–02 as the ‘‘Kaibab Band of Paiute is in compliance with the laws of any conviction in the Tribal Court. Indians of the Kaibab Indian other jurisdiction which may have any Reservation, Arizona.’’ authority with regard to liquor sales and Section 1–40–050: Sales of Liquor to a (m) ‘‘Tribal Council’’ shall mean the regulation on the reservation. Minor duly elected Tribal Council of the Tribe Tribal liquor licenses shall set forth Any person who shall sell any liquor which is the governing body of the the location and description of the to any person under the age of 21 years Tribe. building and premises for which each shall be guilty of an Offense punishable (n) ‘‘Tribal Court’’ means the Tribal license is issued and shall define the upon conviction in the Tribal Court and Courts of the Tribe as established area where the holder of each tribal shall be further subject to forfeit any Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61143 license issued pursuant to this authority to seize consistent with the will pay all fines, costs and damages Ordinance; provided, however, that the Tribe’s Constitution, the Tribal Law and assessed against him/her for any forfeiture of any license issued pursuant Order Code, the ICRA and any other violation of this Ordinance. If any to this Ordinance may occur only after applicable Federal law. conditions of the bond are violated, the whole amount may be recovered as a notice and a hearing according to the Section 1–40–110: Non-Indian procedures set forth in Section 1–50– Violations penalty for the use of the Tribe. Any 020 of this Ordinance. action taken under this section shall be Nothing in this Ordinance shall be in addition to any criminal penalties Section 1–40–060: Unlawful Transfer of construed to require or authorize the provided for under this Ordinance or Identification criminal trial and punishment by the any other applicable provision of the Any person who transfers in any Tribal Court of any non-Indian except to Tribal Law and Order Code. manner an identification of age to a the extent allowed under Federal law. In minor for the purpose of permitting general, when any provision of this Section 1–50–030: Abatement of such minor to obtain liquor shall be Ordinance is violated by a non-Indian, Nuisance guilty of an Offense punishable upon he or she shall be referred to state and/ In all cases where any person has conviction in the Tribal Court. or Federal authorities for prosecution been convicted of a violation of this Corroborative testimony of a witness under applicable law. It is the expressed Ordinance, an action may be brought in other than the minor shall be a intent of the Tribe that any non-Indian Tribal Court to abate as a nuisance any requirement of conviction under this referred to state and/or Federal real estate or other property involved in section. authorities pursuant to this section be the commission of the offense, and in prosecuted to the furthest extent of any such action a certified copy of the Section 1–40–070: Possession of False or applicable law. record of such conviction shall be Altered Identification Section 1–50–010: Declaration of admissible in evidence and prima facie Any person who attempts to purchase Nuisance evidence that the room, house, vessel, an alcoholic beverage through the use of boat, building, vehicle, structure, or false or altered identification which Any room, house, building, boat, place against which such action is vessel, vehicle, structure, or other place falsely purports to show the individual brought is a public nuisance. to be over the age of 21 years shall be where liquor is sold, manufactured, guilty of an Offense punishable upon bartered, exchanged, given away, Section 1–60–01–0: Severability conviction in the Tribal Court. furnished, or otherwise disposed of in If any application or provision, or any violation of the provisions of this portion of any provisions, of this Section 1–40–080: General Penalties Ordinance and all property kept in and Ordinance is determined by review of Any person guilty of a violation of used in maintaining such place, any court of competent jurisdiction to this Ordinance for which no penalty has including tribal liquor licenses related be invalid such adjudication shall not been specifically provided shall be to any such property, are hereby render ineffectual the remaining liable upon conviction for the maximum declared to be a common nuisance. portions of this Ordinance or render penalty prescribed in the Tribal Law Section 1–50–020: Institution Action such provisions automatically and Order Code. inapplicable to other persons or The Chairperson of the Tribal Council circumstances. Section 1–40–090: Identification; Proof or the head of the tribal law of Minimum Age enforcement department may institute Section 1–60–020: Effective Date Where there may be a question of a and maintain an action in the Tribal This Ordinance shall be effective as a person’s right to purchase liquor by Court in the name of the Tribe to abate matter of tribal law on October 15, 1996, reason of his/her age, such person shall and perpetually enjoin any nuisance upon approval by a majority of eligible be required to present any one of the declared under article Section 1–50–010 voters attending the annual General following officially issued cards of of this Ordinance or any other violation Membership Meeting on October 5, identification which shows his/her of this Ordinance. The plaintiff shall be 1996, and effective as a matter of correct age and bears his/her signature required to file grounds in the action, Federal law on November 14, 1997. and photograph: and restraining orders, temporary (a) Liquor control authority card of injunctions, and permanent injunctions Section 1–60–030: Inconsistent identification of any state; may be granted in the case as in other Enactments Rescinded (b) Driver’s license of any state or injunction proceedings. Upon final Any and all prior enactments of the ‘‘Identicard’’ issued by any state judgment against the defendant, the Tribal Council which are inconsistent Department of Motor Vehicles; Tribal Court may order the forfeiture of with the provisions of this Ordinance (c) United States Active Duty Military any license issued pursuant to this are hereby rescinded to the extent of Identification; Ordinance and that the offending room, such inconsistency. (d) Passport; or house, building, boat, vessel, vehicle, (e) Identification or Enrollment Card structure, or place be closed for a period Section 1–60–040: Application of 18 issued by the Tribe or any other of one year or until the owner, lessee, U.S.C. § 1161 federally-recognized tribe. tenant, or occupant thereof shall give All acts and transactions under this bond of sufficient sum of not less than Ordinance shall be in conformity with Section 1–40–100: Illegal Items Declared $1,000.00 payable to the Tribe, which the laws of the State of Arizona to the Contraband bond shall be conditioned on the extent required under 18 U.S.C. § 1161. Alcohol beverages which are agreement of such person that liquor possessed contrary to the terms of this will not be thereafter manufactured, Section 1–60–050: Jurisdiction and Ordinance are hereby declared to be kept, sold, bartered, exchanged, given Sovereign Immunity contraband. Any officer who shall make away, furnished, or otherwise disposed Nothing in this Ordinance shall be an arrest under this section shall seize of therein in violation of the provisions construed to limit the jurisdiction of the all contraband which he shall have the of this Ordinance and that such person Tribe, the Tribal Court, or Tribal law 61144 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices enforcement personnel and nothing DEPARTMENT OF INTERIOR riparian resources from excessive herein shall limit or constitute a waiver damage and provide for visitor safety. of the sovereign immunity of the Tribe Bureau of Land Management Scott S. Abdon, or its officers, instrumentalities and Acting Area Manager, Cascades Resource agents or authorize any form of a [OR±080±082±6230±00; GP8±0024] Area. prospective waiver of such sovereign [FR Doc. 97–29941 Filed 11–13–97; 8:45 am] immunity. Nothing in this Ordinance Emergency Closure Restriction on BILLING CODE 4310±33±P shall be construed as an admission that Public Lands, Salem District, Oregon any body politic, other than the Tribe, has jurisdiction over any matter arising ACTION: Emergency closure restriction DEPARTMENT OF THE INTERIOR from or related to the Reservation, on public lands notice, Salem District, except to the extent such jurisdiction is Oregon. Bureau of Land Management confirmed by Federal law. [ID±957±1910±00±4573] Dated: October 29, 1997. SUMMARY: Notice is hereby given that Ada E. Deer, public lands in Clackamas County, Idaho: Filing of Plats of Survey; Idaho Assistant Secretary—Indian Affairs. Oregon, are temporarily closed to all The plat, in two sheets, of the [FR Doc. 97–29934 Filed 11–13–97; 8:45 am] public use, including vehicle operation, following described land was officially BILLING CODE 4310±02±P camping, and shooting, from October filed in the Idaho State Office, Bureau 16, 1997, until further notice. This order of Land Management, Boise, Idaho, is issued under the authority of 43 CFR effective 9:00 a.m. November 3, 1997. DEPARTMENT OF THE INTERIOR 8364.1 and closes additional roads and The plat representing the dependent public lands to public access and use. Bureau of Indian Affairs resurvey of portions of the west and Notice is hereby given that the following north boundaries, subdivisional lines, Proclaiming Certain Lands as areas are closed to motor vehicle access and subdivision of sections 8 and 18, Reservation for the Redwood Valley and use: T.5 S., R.36 E., Boise Meridian, Idaho, Rancheria of Pomo Indians of 1. Approximately 5 acres incorporating two Group 945, was accepted November 3, California open areas, one east and one west of the 1997. Pine Creek; Bridge on the Molalla River, This survey was executed to meet AGENCY: Bureau of Indian Affairs, near the intersection of Pine Creek Road certain administrative needs of the Interior. and the Molalla Forest; Road in Section Bureau of Indian Affairs, Fort Hall ACTION: Notice of Reservation 30, T. 6 S., R. 3 E.,Will. Mer., Oreg.; Agency. Proclamation. All inquiries concerning the survey of EXEMPTIONS: The following persons, the above described land must be sent SUMMARY: The Assistant Secretary— operating within the scope of their to the Chief, Cadastral Survey, Idaho Indian Affairs proclaimed certain lands official duties, are exempt from the State Office, Bureau of Land in Mendocino County, California, as an provisions of this closure order: BLM addition to the reservation of the Management, 1387 South Vinnell Way, employees; state, local, and federal law Boise, Idaho 83709–1657. Redwood Valley Rancheria of Pomo enforcement and fire protection Indians of California on November 3, personnel; holders of BLM road use Dated: November 3, 1997. 1997. This notice is published in the permits or contracts that include areas Duane E. Olsen, exercise of authority delegated by the within the closure including their Chief Cadastral Surveyor for Idaho. Secretary of the Interior to the Assistant employees and subcontractors. Access [FR Doc. 97–29920 Filed 11–13–97; 8:45 am] Secretary—Indian Affairs by 209 DM by additional parties may be allowed BILLING CODE 4310±GG±M 8.1. but must be approved in advance by the FOR FURTHER INFORMATION CONTACT: Authorized Officer. Larry E. Scrivner, Bureau of Indian DEPARTMENT OF THE INTERIOR Affairs, Chief, Division of Real Estate PENALTIES: Any person who fails to Services, MS–4510/MIB/Code 220, 1849 comply with the provisions of this Bureau of Land Management closure order may be subject to the C Street, N.W., Washington, D.C. 20240, [ID±957±1430±00] telephone (202) 208–7737. penalties provided in 43 CFR 8360.0–7, SUPPLEMENTARY INFORMATION: By which include a fine not to exceed Idaho: Filing of Plats of Survey; Idaho proclamation issued pursuant to the Act $1,000 and/or imprisonment not to of June 18, 1934, (48 Stat. 986; 25 U.S.C. exceed 12 months, as well as penalties The plat of the following described § 467), the land described in a Grant provided under Oregon State Law. land was officially filed in the Idaho Deed, numbered 5369, recorded in Book State Office, Bureau of Land EFFECTIVE DATE: This emergency closure 1502, pages 479, 480 and 481, of the Management, Boise, Idaho, effective shall remain in effect until revised, official records of Mendocino County, 9:00 a.m. November 4, 1997. revoked, or amended. California, were proclaimed to be an The plat representing the dependent Indian Reservation for the exclusive use FOR FURTHER INFORMATION CONTACT: resurvey of portions of the subdivisional of Indians entitled by enrollment or Richard Prather, Area Manager, lines, of the subdivision of section 31, tribal membership to reside at such Cascades Resource Area, 1717 Fabry and of Mineral Survey No. 2486, and the reservation. Road SE, Salem, OR 97306, (503) 375– corrective dependent resurvey of 5646. Mineral Survey No. 2486, Hope lode, T. Dated: November 3, 1997. 2 N., R. 18 E, Boise Meridian, Idaho, Ada E. Deer, SUPPLEMENTARY INFORMATION: The Group 461, was accepted November 4, Assistant Secretary—Indian Affairs. purpose of these closures is to protect 1997. [FR Doc. 97–29912 Filed 11–13–97; 8:45 am] water quality, soil, vegetation, and This survey was executed to meet BILLING CODE 4310±02±P sensitive cultural, paleontological, and certain administrative needs of the Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61145

Bureau of Land Management. All On October 15, 1997, Respondent On October 1, 1994, Respondent inquiries concerning the survey of the submitted a request to file a response to submitted a renewal application for above described land must be sent to the the Government’s exceptions, as well as DEA Certificate of Registration Chief, Cadastral Survey, Idaho State her response to the exceptions. AH2262424 issued to her in Illinois. On Office, Bureau of Land Management, Respondent argued that ‘‘[t]he this renewal application, Respondent 1387 South Vinnell Way, Boise, Idaho, Government filed its exceptions on indicated that she was currently 83709–1657. September 25, 1997 and pursuant to authorized to handle controlled Dated: November 4, 1997. regulation the Respondent has 20 days substances ‘‘in the state in which [she to request leave and file a response.’’ In is] operating or propos[ing] to operate’’, Duane E. Olsen, addition, Respondent stated that the yet she listed her Indiana state medical Chief Cadastral Surveyor for Idaho. Government does not object to license number. Also, Respondent [FR Doc. 97–29921 Filed 11–13–97; 8:45 am] Respondent filing a response to the answered ‘‘No’’ to the liability question BILLING CODE 4310±GG±M exceptions. The Acting Deputy which asked, ‘‘Has the applicant ever Administrator finds that Respondent been convicted of a crime in connection has misread 21 CFR 1316.66, which with controlled substances under State DEPARTMENT OF JUSTICE provides for the filing of exceptions or Federal law, or ever surrendered or within 20 days of service of the had a Federal controlled substance Drug Enforcement Administration Administrative Law Judge’s Opinion registration revoked, suspended, and Recommended Ruling. The restricted or denied, or ever had a State [Docket No. 97±5] regulation further provides that the professional license or controlled Administrative Law Judge may grant substance registration revoked, Martha Hernandez, M.D.; Reprimand time beyond the twenty days for the suspended, denied, restricted or placed and Continuation of Registrations With filing of a response to any exceptions on probation?’’ Restriction filed. Nowhere in the regulations is a DEA personnel telephonically contacted Respondent on January 31, On January 14, 1997, the Deputy party given 20 days from the filing of exceptions to submit a response. 1995, and again on May 3, 1995. During Assistant Administrator, Office of However, the Acting Deputy these conversations, the DEA personnel Diversion Control, Drug Enforcement Administrator will nonetheless consider discussed with Respondent the effect of Administration (DEA), issued an Order Respondent’s response to the the IDPR’s suspension upon to Show Cause to Martha Hernandez, Government’s exceptions since it has Respondent’s DEA registration; the M.D., (Respondent) of Chicago, Illinois been represented that the Government possible voluntary surrender of and Gary, Indiana, notifying her of an does not object to the consideration of Respondent’s Illinois DEA registration opportunity to show cause as to why Respondent’s response. in light of the continued suspension of DEA should not revoke her DEA The Acting Deputy Administrator has her Illinois medical license; and the Certificates of Registration, AH2262424 considered the record in its entirety, need for Respondent to submit a new and BH4493475, pursuant to 21 U.S.C. and pursuant to 21 CFR 1316.67, hereby application for registration with DEA in 824(a)(1), and deny any pending issues his final order based upon the State of Indiana. However, the DEA applications for renewal of her findings of fact and conclusions of law personnel did not indicate to registrations as a practitioner under 21 as hereinafter set forth. The Acting Respondent during these conversations U.S.C. 823(f). The Order to Show Cause Deputy Administrator adopts, in full, that her answer to the liability question alleged that Respondent materially the Opinion and Recommended Ruling on the October 1, 1994 renewal falsified two applications for of the Administrative Law Judge. His application was incorrect or registration with DEA. adoption is in no manner diminished by questionable. By letter dated February 6, 1997, any recitation of facts, issues and On May 5, 1995, Respondent Respondent, through counsel, filed a conclusions herein, or of any failure to submitted a new application for a DEA timely request for a hearing, and mention a matter of fact or law. registration in the State of Indiana. following prehearing procedures, a The Acting Deputy Administrator Again, she answered ‘‘No’’ to the hearing was held in Chicago, Illinois on finds that Respondent is a psychiatrist liability question which asks, ‘‘Has the May 27, 1997, before Administrative licensed to practice medicine in the applicant ever had a State professional Law Judge Gail A. Randall. At the states of Illinois and Indiana, with a license or controlled substance hearing, both parties called witnesses to DEA Certificate of Registration issued to registration revoked, suspended, denied, testify and introduced documentary her in each state. On June 15, 1990, the restricted or placed on probation?’’ evidence. After the hearing, counsel for State of Illinois, Department of Subsequently, on July 10, 1995, both parties submitted proposed Professional Regulation (IDPR) refused Respondent was issued DEA Certificate findings of fact, conclusions of law and to renew Respondent’s Illinois medical of Registration BH4493475, in the State argument. On September 5, 1997, Judge license because she had defaulted on of Indiana. Randall issued her Opinion and her student loan payments. On On June 16, 1995, Respondent Recommended Ruling, recommending December 2, 1991, Respondent entered submitted an application to renew her that Respondent’s registrations not be into a consent order with IDPR, which Indiana medical license. On that revoked, but that Respondent be reinstated her Illinois medical license, application, Respondent answered ‘‘No’’ reprimanded and that she be required to but placed her license on probation to a question which asked, ‘‘In the last submit certain documentation to DEA until such time as she completes two years, has disciplinary action been on an annual basis for three years. On repayment of her student loan. The taken regarding any license, certificate, September 25, 1997, the Government consent order set forth a schedule for registration or permit you hold or have filed exceptions to Judge Randall’s repayment of the loan. However, by held?’’ As a result of this application, Opinion and Recommended Ruling, and Order dated January 10, 1994, the IDPR Respondent’s Indiana medical license on October 6, 1997, the record was indefinitely suspended Respondent’s was renewed on June 30, 1995. transmitted to the Acting Deputy Illinois medical license due to her Following her conversations with the Administrator. failure to abide by the repayment plan. DEA personnel, Respondent decided not 61146 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices to surrender her Illinois DEA the Indiana Board that ‘‘[a]t the time I Illinois medical license. In addition, she registration. Judge Randall found that reapplied for my Indiana license [June improperly answered a similar question ‘‘Respondent credibly testified [at the 16, 1995] I was not aware of my Illinois on her application for an Indiana hearing in this matter] that she had license being resuspended.’’ On July 14, medical license. The Government argues declined to surrender her DEA 1997, the Indiana board issued its that the crucial issues are ‘‘Respondent’s Certificate of Registration because she Findings of Fact and Order finding that credibility and the ability of DEA felt that the choices given on the DEA Respondent’s conduct constituted investigators to ascertain the status of a surrender form pertaining to the reason ‘‘knowingly engaging in fraud or registrant’s or an applicant’s past history for the surrender implied failure on her material deception in order to obtain a based upon answers to the applicable part to comply with Federal law in her license to practice in violation of Ind. liability questions.’’ The Government handling of controlled substances.’’ Code. * * *’’ Accordingly, the Indiana contends that Respondent’s testimony Judge Randall further found that Board ordered that Respondent be regarding her responses to the liability Respondent ‘‘credibly testified that she reprimanded, fined $200.00 and questions was not credible. had believed such form language did assessed costs. Respondent admits that her responses not apply to her, since the suspension At the hearing in this matter, to the liability questions were incorrect. of her Illinois medical license was due Respondent contradicated her January However, Respondent argues that the to her inability to repay her Illinois 13, 1997 letter to the Indiana Board statements at issue were not ‘‘material’’ student loan, not due to her failure to when she agreed that in January and falsifications. Respondent further comply with Federal law in her May of 1995, she had had conversations contends that revocation would be too handling of controlled substances.’’ with DEA personnel concerning the harsh a sanction since she had no intent Since Respondent declined to suspension of her Illinois medical to deceive or mislead DEA; because her voluntarily surrender her Illinois DEA license in January 1995. underlying misconduct was not related registration, on November 27, 1995, Judge Randall found that to malpractice in her treatment of DEA issued an Order to Show Cause to ‘‘Respondent credibly testified [at the patients or the mishandling of Respondent proposing to revoke her hearing in this matter] that during 1994 controlled substances; and, since once Illinois DEA Certificate of Registration she had experienced unexpected advised by the IDPR of the correct in light of the fact that she was not then financial difficulties which contributed interpretation of the liability questions, authorized to handle controlled to her inability to pay her student loans she answered the question on her July substances in the State of Illinois due to ** * [and] that the suspension of her 1996 state application appropriately. the continued suspension of her Illinois Illinois medical license in January of As Judge Randall notes, ‘‘[a]nswers to medical license. However, on November 1994 was not a rememberable event to the liability question are material, since 29, 1995, the IDPR entered into another her, since she was primarily practicing the DEA relies upon such answers to consent agreement with Respondent, medicine in Indiana in 1994, and given determine whether an investigation is which reinstated Respondent’s Illinois the general turmoil of her life at that needed prior to grating the application.’’ medical license and placed this license time.’’ Judge Randall further found that DEA has previously held that in finding on probation subject to Respondent’s ‘‘Respondent credibly testified that she that there has been a material adhering to a student loan repayment was unaware of a need for a separate falsification of an application, it must be schedule. As a result of the consent DEA Certificate of Registration to reflect determined that the applicant knew or agreement, the November 27, 1995 her Indiana place of business.’’ In should have known that the response Order to Show Cause was not pursued. addition, Respondent testified that she given to the liability question was false. In July 1996, Respondent submitted answered ‘‘No’’ to the liability question See Bobby Watts, M.D., 58 FR 4699 an application to renew her Illinois on the DEA applications because she (1993); Herbert J. Robinson, M.D., 59 FR medical license. On this application, thought that since she was applying for 6304 (1994). Respondent answered ‘‘Yes’’ to a a Federal registration to handle The Acting Deputy Administrator question which asked, ‘‘Since July 31, controlled substances, the question only concurs with Judge Randall’s 1993, have you been denied a pertained to actions taken based upon conclusion that Respondent materially professional license or permit, or malpractice, criminal activity, or falsified her October 1, 1994 renewal privilege of taking an examination, or improper prescribing of controlled application for her Illinois DEA had a professional license or permit substances, and not to the suspension of Certificate of Registration and her May disciplined in any way by any licensing a medical license due to a failure to 5, 1995 application for a DEA authority in Illinois or elsewhere?’’ repay a student loan. registration in Indiana. Respondent Respondent testified that she answered Pursuant to 21 U.S.C. 824(a)(1), ‘‘A indicated on both of these applications the question in the affirmative, after registration pursuant to section 823 of that she had not had a state professional discussing the interpretation of the this title to * * * dispense a controlled license denied or suspended, even question with an Illinois official. substance * * * may be suspended or through she knew that the renewal of On July 8, 1996, the Indiana Medical revoked by the Attorney General upon her Illinois medical license had been Licensing Board (Indiana Board) issued a finding that the registrant—(1) has denied in 1990, and that after being a complaint against Respondent. The materially falsified any application filed reinstated, was again suspended in complaint alleged that Respondent had pursuant to or required by this 1994. Respondent does not deny that falsified her application for renewal of subchapter or subchapter II of this she incorrectly answered the liability her Indiana medical license dated June chapter.’’ The Government contends question on the applications, but 16, 1995, by indicating that in the last that Respondent’s DEA Certificates of contends that she did not think that the two years no disciplinary action had Registration should be revoked pursuant actions of the IDPR due to her failure to been taken against any licenses that she to 21 U.S.C. 824(a)(1) because she repay her student loan was the type of had held or was currently holding, even falsified two different DEA applications action that needed to be disclosed in though the IDPR had indefinitely by indicating that no adverse action had response to the question. The Acting suspended her Illinois medical license been taken against any of her state Deputy Administrator concurs with on January 10, 1994. In a letter dated professional licenses when in fact such Judge Randall’s conclusion that, January 13, 1997, Respondent informed action had been taken against her ‘‘[a]lthough the Respondent credibly Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61147 testified concerning her this matter that she thought that since Board should not be considered a misinterpretation of the question, she she was applying to handle controlled mitigating factor, because it was not the was not relieved of her responsibility to substances, the question on the result of an adjudicatory proceeding, but carefully read the question and to applications did not apply to her since rather a settlement conference. The honestly answer all parts of the her Illinois medical license was Government contends that in John W. question.’’ suspended due to her failure to repay a Copeland, M.D., 59 FR 46,063 (1994), Therefore, the Acting Deputy student loan, and not due to inadequate DEA previously held that a consent Administrator concludes that based patient care or mishandling of decree between the Respondent and the upon Respondent’s material falsification controlled substances. While this is state in no way detracted from the of the two applications, ground exist to clearly an incorrect interpretation of the findings and conclusions found in the revoke her DEA Certificates of liability question, the Acting Deputy DEA’s final order. In that case the then- Registration pursuant to 21 U.S.C. Administrator concurs with Judge Deputy Administrator found egregious 824(a)(1). The question now becomes Randall’s conclusion that this is a violations regarding the handling of whether the Acting Deputy credible explanation for the controlled substances and that the Administrator, in exercising his falsification. consent order of the state board did not discretion, believes that revocation is Notwithstanding the foregoing, the change those findings. In this case, the the appropriate sanction in light of the Acting Deputy Administrator is troubled Acting Deputy Administrator has not facts and circumstances of this case. by Respondent’s carelessness in failing found similar violations. In fact, as the Judge Randall found that to carefully read the question on the Government points out, in this case the ‘‘Respondent’s testimony was credible applications. However, the Acting Indiana Board found that Respondent during her explanation of her confusion Deputy Administrator finds it knowingly engaged in fraud or material concerning the DEA registration significant that prior to receiving the deception. The Indiana Board requirements for her Indiana practice, Order to Show Cause in this matter nonetheless allowed her to continue to and her misunderstanding, albeit alleging that Respondent materially practice medicine with a reprimand and unjustified, concerning the phrasing of falsified her applications, Respondent a fine. As stated previously, unlike the the liability questions in issue.’’ answered a similar liability question Indiana Board, the Acting Deputy Therefore, Judge Randall concluded that correctly on her July 1996 Illinois Administrator has found that Respondent did not intend to deceive application. Respondent testified that Respondent did not intend to deceive DEA, but that her falsification of the she gave a different response on this DEA with her answers to the liability applications was due to her carelessness application after discussing the matter question on the applications. and negligence. As Judge Randall noted, with an Illinois official. To not consider a state’s action simply ‘‘lack of intent is irrelevant to the legal In considering the appropriate test of material falsification.’’ However sanction, Judge Randall also found it because it was reached by agreement, she suggested that ‘‘such a lack of intent significant that ‘‘both the Illinois rather than following an adjudicatory should be considered in fitting the medical board and the Indiana medical proceeding, would be unreasonable. remedy to the situation in this case.’’ board chose to grant [Respondent’s] Therefore, the Acting Deputy The Government filed exceptions to applications, even in light of her past Administrator disagrees with the Judge Randall’s conclusion arguing that failures to remain current in the Government’s contention that consent Respondent intentionally sought to payment of her student loan, and more orders should not be considered as deceive DEA by incorrectly answering recently, even in light of the Indiana mitigating evidence. Accordingly, the the liability question on the Board’s finding that the Respondent’s Acting Deputy Administrator agrees applications. The Government argues June 1995 renewal application had been with Judge Randall in this case, that that Respondent clearly knew that her prepared in a fraudulent or materially while not dispositive, the fact that both Illinois medical license had been deceptive manner.’’ The Government, in the Indiana and Illinois medical suspended, yet she indicated on her its exceptions, argues that the fact that licensing authorities have allowed applications for registration that no the IDPR has not currently taken action Respondent to continue to practice adverse action had been taken against against Respondent’s Illinois medical medicine is a mitigating factor when her state professional license. license should not be considered a evaluating all of the circumstances of The Acting Deputy Administrator mitigating factor, since it has taken this case to determine the appropriate agrees with Judge Randall that a lack of significant action against her state sanction. intent to deceive should be considered license in the past. The Acting Deputy Judge Randall also found it in determining whether a registration Administrator finds that the actions of appropriate to consider that should be revoked. However, the Acting the state boards are relevant, although Respondent’s falsification of her Deputy Administrator further notes that not dispositive, in determining the applications stemmed from her failure negligence and carelessness in appropriate sanction in this matter. As to repay a student loan, and that there completing an application could be a stated previously, the Acting Deputy are no allegations that Respondent sufficient reason to revoke a registration. Administrator must look at all of the improperly handled controlled In determining whether revocation is circumstances surrounding a particular substances. As Judge Randall noted, warranted, the Acting Deputy case. The Acting Deputy Administrator ‘‘this lack of connection to controlled Administrator looks at the totality of the concludes that while it is true that substances is not dispositive of the circumstances in each case. Respondent’s Illinois medical license matter,’’ however, she suggested that, ‘‘it In this case, it is undisputed that was not renewed in 1990 and was is relevant in determining the Respondent knew that her Illinois suspended in 1994 due to her failure to appropriate remedy.’’ The Government, medical license had been suspended. repay a student loan, the IDPR has seen in its exceptions, argues that the lack of But, the Acting Deputy Administrator fit to allow Respondent to continue to improper handling of controlled does not agree with the Government that practice medicine as long as she substances ‘‘should not be considered in Respondent intended to deceive DEA in continues to repay her loan. mitigation,’’ and that ‘‘DEA’s past policy responding to the liability question. The Government further argues in its has been not to distinguish between Respondent testified at the hearing in exceptions that the action of the Indiana those falsifications that do and do not 61148 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices have related controlled substance regarding the handling of controlled 823(a) and determined that the issues.’’ substances in order to prevent the registration of Novartis Pharmaceuticals The Acting Deputy Administrator diversion of these dangerous substances. Corp. to manufacture methylphenidate agrees with the Government insofar as However, the Acting Deputy is consistent with the public interest at DEA has in fact revoked registrations in Administrator agrees with Judge Randall this time. Therefore, pursuant to 21 the past based upon the material that revocation would be too severe a U.S.C. § 823 and 28 CFR 0.100 and falsification of an application that was sanction given the facts and 0.104, the Deputy Assistant not related to the mishandling of circumstances of this case. The Acting Administrator, Office of Diversion controlled substances. See Ezzat E. Majd Deputy Administrator concurs with Control, hereby orders that the Pour, M.D., 55 FR 47,547 (1990). Judge Randall’s recommendation that application submitted by the above firm However, the Acting Deputy Respondent be reprimanded for her for registration as a bulk manufacturer Administrator concludes that in failure to properly complete her of the basic class of controlled substance exercising his discretion in determining applications for registration and that she listed above is granted. the appropriate remedy, he must be required for a period of three years Dated: November 6, 1997. consider all of the facts and to submit to the DEA Chicago Field circumstances of a particular case. Here, Division, on an annual basis, John H. King, it is relevant that Respondent credibly documentation from both the Illinois Deputy Assistant Administrator, Office of testified that she did not think that the Diversion Control, Drug Enforcement and the Indiana medical licensing Administration. liability question applied to her since authorities certifying that her medical [FR Doc. 97–29973 Filed 11–13–97; 8:45 am] the suspension of her Illinois license licenses remain in good standing in both was to due to the improper handling of states, and that there is no impediment BILLING CODE 4410±09±M controlled substances. The Acting to her handling controlled substances at Deputy Administrator also finds it the state level. The first such relevant that Respondent correctly documentation should be forwarded to DEPARTMENT OF LABOR answered a similar question on a DEA within thirty days of the effective Employment Standards Administration subsequent state application even before date of this final order. she received the Order to Show Cause Accordingly, the Acting Deputy Wage and Hour Division from DEA alleging that she had Administrator of the Drug Enforcement materially falsified two of her Administration, pursuant to the Minimum Wages for Federal and applications. authority vested in him by 21 U.S.C. 823 Federally Assisted Construction; Judge Randall concluded that and 824, and 28 CFR 0.100(b) and 0.104, General Wage Determination Decisions revocation would be too harsh a hereby reprimands Martha Hernandez, General wage determination decisions sanction in this case, ‘‘[h]owever, the M.D., for failing to properly complete of the Secretary of Labor are issued in Respondent’s failure to pay close her DEA registration applications. The accordance with applicable law and are enough attention to the administrative Acting Deputy Administrator further based on the information obtained by details necessary to maintain her orders that DEA Certificates of the Department of Labor from its study credentials in good standing warrants Registration AH2262424 and of local wage conditions and data made some concern about the Respondent’s BH4493475, issued to Martha available from other sources. They meeting the responsibilities levied Hernandez, M.D., be continued, and any specify the basic hourly wage rates and against a person provided the authority pending applications be granted, subject fringe benefits which are determined to to prescribe and to dispense controlled to the above described restriction. This be prevailing for the described classes of substances.’’ Therefore, Judge Randall order is effective December 15, 1997. recommended that Respondent be laborers and mechanics employed on reprimanded for her failure to properly Dated: November 4, 1997. construction projects of a similar complete here DEA registration James S. Milford, character and in the localities specified applications; and ‘‘that for a period of Acting Deputy Administrator. therein. three years, that Respondent be ordered [FR Doc. 97–29972 Filed 11–13–97; 8:45 am] The determinations in these decisions to file with the appropriate local DEA BILLING CODE 4410±09±M of prevailing rates and fringe benefits resident office, on an annual basis, a have been made in accordance with 29 copy of a document from both the CFR Part 1, by authority of the Secretary Illinois and the Indiana medical boards DEPARTMENT OF JUSTICE of Labor pursuant to the provisions of certifying that her medical licenses the Davis-Bacon Act of March 3, 1931, remain in good standing in both States, Drug Enforcement Administration as amended (46 Stat. 1494, as amended, 40 U.S.C. 276a) and of other Federal and that there is no impediment to her Manufacturer of Controlled statutes referred to in 29 CFR Part 1, handling controlled substances at the Substances; Notice of Registration State level.’’ Appendix, as well as such additional The Acting Deputy Administrator By Notice dated July 29, 1997, and statutes as may from time to time be concludes that there is no question that published in the Federal Register on enacted containing provisions for the Respondent materially falsified two of August 26, 1997, (62 FR 45272), payment of wages determined to be her applications for DEA registration. Novartis Pharmaceuticals Corp., 59 prevailing by the Secretary of Labor in This is extremely troubling since DEA Route 10, East Hanover, New Jersey accordance with the Davis-Bacon Act. relies on accurate information being 07936, made application by letter to the The prevailing rates and fringe benefits submitted by its applicants. Further, Drug Enforcement Administration determined in these decisions shall, in Respondent’s actions indicate a careless (DEA) to be registered as a bulk accordance with the provisions of the disregard for attention to detail. This manufacturer of methylphenidate (1724) foregoing statutes, constitute the lack of attention to detail is of great a basic class of controlled substance minimum wages payable on Federal and concern to the Acting Deputy listed in Schedule II. federally assisted construction projects Administrator since DEA registrants are DEA has considered the factors in to laborers and mechanics of the tasked with keeping meticulous records Title 21, United States Code, Section specified classes engaged on contract Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61149 work of the character and in the Volume I KY970007 (Feb. 14, 1997) localities described therein. New Jersey KY970026 (Feb. 14, 1997) KY970027 (Feb. 14, 1997) Good cause is hereby found for not NJ970002 (Feb. 14, 1997) NJ970003 (Feb. 14, 1997) KY970029 (Feb. 14, 1997) utilizing notice and public comment NJ970004 (Feb. 14, 1997) KY970035 (Feb. 14, 1997) procedure thereon prior to the issuance NJ970005 (Feb. 14, 1997) Volume IV of these determinations as prescribed in NJ970007 (Feb. 14, 1997) 5 U.S.C. 553 and not providing for delay NJ970015 (Feb. 14, 1997) Illinois New York IL970001 (Feb. 14, 1997) in the effective date as prescribed in that IL970002 (Feb. 14, 1997) section, because the necessity to issue NY970002 (Feb. 14, 1997) NY970004 (Feb. 14, 1997) IL970003 (Feb. 14, 1997) current construction industry wage IL970004 (Feb. 14, 1997) determinations frequently and in large NY970005 (Feb. 14, 1997) NY970008 (Feb. 14, 1997) IL970005 (Feb. 14, 1997) volume causes procedures to be NY970012 (Feb. 14, 1997) IL970006 (Feb. 14, 1997) impractical and contrary to the public NY970013 (Feb. 14, 1997) IL970007 (Feb. 14, 1997) interest. NY970016 (Feb. 14, 1997) IL970008 (Feb. 14, 1997) IL970009 (Feb. 14, 1997) General wage determination NY970020 (Feb. 14, 1997) NY970022 (Feb. 14, 1997) IL970010 (Feb. 14, 1997) decisions, and modifications and NY970025 (Feb. 14, 1997) IL970014 (Feb. 14, 1997) supersedes decisions thereto, contain no NY970032 (Feb. 14, 1997) IL970015 (Feb. 14, 1997) expiration dates and are effective from NY970037 (Feb. 14, 1997) IL970017 (Feb. 14, 1997) their date of notice in the Federal NY970040 (Feb. 14, 1997) IL970018 (Feb. 14, 1997) Register, or on the date written notice NY970042 (Feb. 14, 1997) IL970025 (Feb. 14, 1997) IL970026 (Feb. 14, 1997) is received by the agency, whichever is NY970045 (Feb. 14, 1997) NY970048 (Feb. 14, 1997) IL970038 (Feb. 14, 1997) earlier. These decisions are to be used IL970040 (Feb. 14, 1997) in accordance with the provisions of 29 NY970049 (Feb. 14, 1997) NY970072 (Feb. 14, 1997) IL970053 (Feb. 14, 1997) CFR Parts 1 and 5. Accordingly, the NY970075 (Feb. 14, 1997) IL970055 (Feb. 14, 1997) applicable decision, together with any Rhode Island IL970065 (Feb. 14, 1997) modifications issued, must be made a RI970001 (Feb. 14, 1997) Indiana part of every contract for performance of RI970002 (Feb. 14, 1997) IN970001 (Feb. 14, 1997) the described work within the IN970002 (Feb. 14, 1997) Volume II IN970004 (Feb. 14, 1997) geographic area indicated as required by Maryland IN970005 (Feb. 14, 1997) an applicable Federal prevailing wage MD970055 (Feb. 14, 1997) IN970006 (Feb. 14, 1997) law and 29 CFR Part 5. The wage rates Pennsylvania Ohio and fringe benefits, notice of which is PA970001 (Feb. 14, 1997) OH970002 (Feb. 14, 1997) published herein, and which are PA970002 (Feb. 14, 1997) OH970028 (Feb. 14, 1997) contained in the Government Printing PA970003 (Feb. 14, 1997) OH970029 (Feb. 14, 1997) PA970004 (Feb. 14, 1997) Office (GPO) document entitled Volume V PA970006 (Feb. 14, 1997) ‘‘General Wage Determinations Issued IA970004 (Feb. 14, 1997) Under The Davis-Bacon And Related PA970008 (Feb. 14, 1997) PA970012 (Feb. 14, 1997) IA970009 (Feb. 14, 1997) Acts,’’ shall be the minimum paid by PA970016 (Feb. 14, 1997) IA970014 (Feb. 14, 1997) contractors and subcontractors to PA970017 (Feb. 14, 1997) IA970032 (Feb. 14, 1997) laborers and mechanics. PA970018 (Feb. 14, 1997) IA970038 (Feb. 14, 1997) Any person, organization, or PA970020 (Feb. 14, 1997) IA970047 (Feb. 14, 1997) PA970024 (Feb. 14, 1997) Kansas governmental agency having an interest PA970026 (Feb. 14, 1997) KS970009 (Feb. 14, 1997) in the rates determined as prevailing is PA970030 (Feb. 14, 1997) KS970012 (Feb. 14, 1997) encouraged to submit wage rate and PA970031 (Feb. 14, 1997) KS970016 (Feb. 14, 1997) fringe benefits information for PA970038 (Feb. 14, 1997) KS970018 (Feb. 14, 1997) consideration by the Department. PA970042 (Feb. 14, 1997) KS970019 (Feb. 14, 1997) Further information and self- PA970054 (Feb. 14, 1997) KS970020 (Feb. 14, 1997) explanatory forms for the purpose of PA970065 (Feb. 14, 1997) KS970021 (Feb. 14, 1997) submitting this data may be obtained by Virginia KS970022 (Feb. 14, 1997) VA970013 (Feb. 14, 1997) KS970023 (Feb. 14, 1997) writing to the U.S. Department of Labor, VA970108 (Feb. 14, 1997) KS970025 (Feb. 14, 1997) Employment Standards Administration, KS970026 (Feb. 14, 1997) Wage and Hour Division, Division of Volume III Louisiana Wage Determination, 200 Constitution Alabama LA970001 (Feb. 14, 1997) Avenue, N.W., Room S–3014, AL970003 (Feb. 14, 1997) LA970004 (Feb. 14, 1997) Washington, D.C. 20210. AL970004 (Feb. 14, 1997) LA970005 (Feb. 14, 1997) AL970006 (Feb. 14, 1997) LA970009 (Feb. 14, 1997) Modifications to General Wage AL970008 (Feb. 14, 1997) LA970015 (Feb. 14, 1997) Determination Decisions AL970016 (Feb. 14, 1997) LA970016 (Feb. 14, 1997) AL970017 (Feb. 14, 1997) LA970018 (Feb. 14, 1997) The number of decisions listed in the AL970034 (Feb. 14, 1997) LA970055 (Feb. 14, 1997) Government Printing Office document AL970042 (Feb. 14, 1997) Missouri entitled ‘‘General Wage Determinations AL970044 (Feb. 14, 1997) MO970005 (Feb. 14, 1997) Issued Under the Davis-Bacon and Florida MO970043 (Feb. 14, 1997) Related Acts’’ being modified are listed FL970001 (Feb. 14, 1997) MO970052 (Feb. 14, 1997) FL970002 (Feb. 14, 1997) MO970056 (Feb. 14, 1997) by Volume and State. Dates of FL970009 (Feb. 14, 1997) MO970064 (Feb. 14, 1997) publication in the Federal Register are FL970017 (Feb. 14, 1997) MO970068 (Feb. 14, 1997) in parentheses following the decisions FL970066 (Feb. 14, 1997) MO970070 (Feb. 14, 1997) being modified. Kentucky Texas 61150 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

TX970001 (Feb. 14, 1997) Foundation announces the following salaries, and personal information TX970002 (Feb. 14, 1997) meeting; concerning individuals associated with the TX970007 (Feb. 14, 1997) proposals. These matters are exempt under 5 Name: Special Emphasis Panel in TX970008 (Feb. 14, 1997) # U.S.C. 552b(c) (4) and (6) of the Government TX970019 (Feb. 14, 1997) Advanced Scientific Computing ( 1185). in the Sunshine Act. Date and Time: December 8, 1997, 8:30 am TX970054 (Feb. 14, 1997) M. Rebecca Winkler, TX970081 (Feb. 14, 1997) to 5:00 pm. Place: National Science Foundation, 4201 Committee Management Officer. Volume VI Wilson Boulevard, Suite 1105.17, Arlington, [FR Doc. 97–29984 Filed 11–13–97; 8:45 am] None VA. BILLING CODE 7555±01±M Type of Meeting: Closed. Volume VII Contact Person: Dr. John Van Rosendale, None Program Director, New Technologies NATIONAL SCIENCE FOUNDATION Program, Suite 1122, National Science General Wage Determination Foundation, 4201 Wilson Boulevard, Special Emphasis Panel in Biological Publication Arlington, VA 22230, (703) 306–1962. Purpose of Meeting: To provide Sciences; Meeting General wage determinations issued recommendations and advice concerning under the Davis-Bacon and related Acts, In accordance with the Federal proposals submitted to NSF for financial Advisory Committee Act (Pub. L. 92– including those noted above, may be support. found in the Government Printing Office Agenda: Panel review of the New 463, as amended), the National Science (GPO) document entitled ‘‘General Wage Technologies Program proposals as part of Foundation announces the following Determinations Issued Under The Davis- the selection process for awards. meeting: Bacon and Related Acts’’. This Reason for Closing: The proposals being Name: Special Emphasis Panel in publication is available at each of the 50 reviewed include information of a Biological Sciences (#1754). proprietary or confidential nature, including Date and Time: December 4th & 5th, 1997, Regional Government Depository technical information; financial data, such as Libraries and many of the 1,400 8:00 a.m.–5:00 p.m. salaries; and personal information Place: National Science Foundation, 4201 Government Depository Libraries across concerning individuals associated with the the county. Wilson Blvd., Room 1295, Arlington, VA proposals. These matters are exempt under 5 22230. The general wage determinations U.S.C. 552b (c) (4) and (6) of the Government Type of Meeting: Closed. issued under the Davis-Bacon and in the Sunshine Act. Contact Person: Dr. Fred Stollnitz, Program related Acts are available electronically M. Rebecca Winkler, Director, Research Experiences for by subscription to the FedWorld Committee Management Officer. Undergraduates, Room 615, National Science Bulletin Board System of the National [FR Doc. 97–29985 Filed 11–13–97; 8:45 am] Foundation, 4201 Wilson Boulevard, VA 22230 Telephone: (703) 306–1413. Technical Information Service (NTIS) of BILLING CODE 7555±01±M the U.S. Department of Commerce at Purpose of Meeting: To provide advice and (703) 487–4630. recommendations concerning proposals Hard-copy subscriptions may be submitted to NSF for financial support. NATIONAL SCIENCE FOUNDATION Agenda: To review and evaluate proposals purchased from: Superintendent of submitted in response to the Research Documents, U.S. Government Printing Special Emphasis Panel in Experiences for Undergraduates program Office, Washington, D.C. 20402, (202) Astronomical Sciences (1186); announcement. 512–1800. Meetings Reason for Closing: The proposals being When ordering hard-copy reviewed include information of a In accordance with the Federal subscription(s), be sure to specify the proprietary or confidential nature, including State(s) of interest, since subscriptions Advisory Committee Act (Pub. L. 92– technical information; financial data, such as may be ordered for any or all of the 463, as amended), the National Science salaries; and personal information seven separate volumes, arranged by Foundation announces that the Special concerning individuals associated with the State. Subscriptions include an annual Emphasis Panel in Astronomical proposals. These matters are exempt under 5 Sciences (1186) will be holding panel U.S.C. 552b(c) (4) and (6) of the Government edition (issued in January or February) in the Sunshine Act. which includes all current general wage meetings for the purpose of reviewing M. Rebecca Winkler, determinations for the States covered by proposals submitted to the Stellar each volume. Throughout the remainder Astronomy and Astrophysics Program Committee Management Officer. of the year, regular weekly updates are in the area of Astronomical Sciences. In [FR Doc. 97–29983 Filed 11–13–97; 8:45 am] distributed to subscribers. order to review the large volume of BILLING CODE 7555±01±M proposals, panel meetings will be held Signed at Washington, DC, this 7th day of on December 4 and 5, 1997, (2) and November 1997. December 9 and 10, 1997 (3). All NATIONAL SCIENCE FOUNDATION Carl Poleskey, meetings will be closed to the public Chief, Branch of Construction Wage and will be held at the National Science Special Emphasis Panel in the Division Determinations. Foundation, 4201 Wilson Boulevard, of Electrical and Communications [FR Doc. 97–29891 Filed 11–13–97; 8:45 am] Arlington, Virginia, from 8:30 a.m. to Systems; Notice of Meetings BILLING CODE 4510±27±M 5:00 p.m. each day. This notice is being published in Contact Person: Dr. Eileen Friel, Program accord with the Federal Advisory Director, Stellar Astronomy and Committee Act (Pub. L. 92–463, as NATIONAL SCIENCE FOUNDATION Astrophysics, Division of Astronomical amended). During the period December Sciences, National Science Foundation, 1 through December 31, 1997, the Special Emphasis Panel in Advanced Room 1045, 4201 Wilson Boulevard, Scientific Computing; Meeting Arlington, VA 22230, (703) 306–1825. Special Emphasis Panel will be holding Reason For Closing: The proposals being panel meetings to review and evaluate In accordance with the Federal reviewed include information of a research proposals. The dates, contact Advisory Committee Act (Pub. L. 92– proprietary or confidential nature, including person, and types of proposals are as 463, as amended), the National Science technical information, financial data such as follows: Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61151

Special Emphasis Panel in the Division of Reason for Closing: The proposals being Place: National Science Foundation, 4201 Electrical and Communications Systems reviewed include information of a Wilson Boulevard, Room 375, Arlington, VA 1. Date: December 1–2, 1997. proprietary or confidential nature, including 22230. Contact: Radhakishan Baheti, Saifur technical information; financial data, such as Type of Meeting: Open. Rahman, George Lea, and Paul Werbos, salaries; and personal information Contact Person: Adriaan de Graaf, Program Directors, Knowledge, Modeling and concerning individuals associated with the Executive Officer, MPS, Room 1005, National Computational Intelligence, Division of proposals. These matters are exempt under 5 Science Foundation, 4201 Wilson Boulevard, Electrical and Communications Systems, U.S.C. 552b(c) (4) and (6) of the Government Arlington, VA 22230, Telephone: (703) 306– Room 675, 703–306–1339. in the Sunshine Act. 1800. Minutes: May be obtained from the contact Type of Proposal: Knowledge, Modeling M. Rebecca Winkler, person listed above. and Computational Intelligence CAREER Committee Management Officer. Purpose of Meeting: To provide advice and proposals. [FR Doc. 97–29979 Filed 11–13–97; 8:45 am] recommendations on development of MPS 2. Date: December 1–2, 1997. BILLING CODE 7555±01±M strategic planning mechanisms; provide Contact: Rajinder Kholsa, T.P. Lee, advice on the appropriateness of current Program Directors, Physical Foundation and disciplinary boundaries; evaluate the current Enabling Technologies, Division of Electrical MPS interfaces with academia and industry; and Communications Systems, Room 675, NATIONAL SCIENCE FOUNDATION and advise on methods of achieving overall 703–306–1339. program excellence in MPS. Type of Proposal: Physical Foundation and Special Emphasis Panel in Human Enabling Technologies CAREER proposals. Resource Development; Notice of Agenda Times: 8:30 to 5:00 p.m. each day. Meeting December 4, 1997 Place: National Science Foundation, 4201 Wilson Blvd., Arlington, VA. In accordance with the Federal AM Type of Meetings: Closed. Advisory Committee Act (Pub. L. 92– Introductory Remarks Purpose of Meetings: To provide advice 463, as amended), the National Science Discussion on Science and Education and recommendations concerning proposals Foundation announces the following Themes for the 21st Century submitted to NSF for financial support. meeting. PM Agenda: To review and evaluate proposals Roundtable Discussion—Assessing the Name: Special Emphasis Panel in Human Value of Basic Research submitted to the Directorate as part of the Resource Development #1199). selection process for awards. Review of NSF GPRA documents and PHY Date and Time: December 2 and 3, 1997, COV Report Reason for Closing: The proposals being 8:30 am–5:00 pm. reviewed include information of a Place: National Science Foundation, 4201 December 5, 1997 proprietary or confidential nature, including Wilson Blvd., Arlington, VA., Rooms 365, AM technical information; financial data, such as 370, 375. salaries, and personal information Strategic Planning/Science and Education Type of Meeting: Closed. Themes concerning individuals associated with the Contact Person: Lawrence Scadden & Mary PM proposals. These matters are exempt under 5 Kohlerman, National Science Foundation, Report on DMS Benchmarking Activity U.S.C. 552b(c) (4) and (6) of the Government 4201 Wilson Blvd., Arlington, VA 22230. Meeting Wrap-up/Future Business in the Sunshine Act. Telephone: (703) 306–1636. M. Rebecca Winkler, M. Rebecca Winkler, Purpose of Meeting: To provide advice and Committee Management Officer. Committee Management Officer. recommendations concerning proposals [FR Doc. 97–29982 Filed 11–13–97; 8:45 am] [FR Doc. 97–29978 Filed 11–13–97; 8:45 am] submitted to NSF for financial support. Agenda: To review and evaluate Programs BILLING CODE 7555±01±M BILLING CODE 7555±01±M for Persons with Disabilities proposals as part of the selection process for awards. Reason for Closing: The proposals being NATIONAL SCIENCE FOUNDATION reviewed include information of a NUCLEAR REGULATORY proprietary or confidential nature, including COMMISSION Special Emphasis Panel in technical information; financial data, such as [Docket No. 50±346] Geosciences; Notice of Meeting salaries; and personal information concerning individuals associated with the In accordance with the Federal In the Matter of Toledo Edison proposals. These matters are exempt under 5 Company, Centerior Service Company, Advisory Committee Act (Pub. L. 92– U.S.C. 552b(c) (4) and (6) of the Government 463, as amended), the National Science in the Sunshine Act. The Cleveland Electric Illuminating Company (Davis-Besse Nuclear Power Foundation announces the following M. Rebecca Winkler, Station, Unit 1); Exemption meeting. Committee Management Officer. Name: Special Emphasis Panel in [FR Doc. 97–29981 Filed 11–13–97; 8:45 am] I Geosciences (1756). BILLING CODE 7555±01±M Toledo Edison Company, Centerior Date and Time: December 2–3, 1997; 8:30 am–5:00 pm. Service Company, and The Cleveland Electric Illuminating Company (the Place: Room 725, National Science NATIONAL SCIENCE FOUNDATION Foundation, 4201 Wilson Blvd., Arlington, licensees) are the holders of Facility VA. Advisory Committee for Mathematical Operating License No. NPF–3, which Type of Meeting: Closed. and Physical Sciences; Meeting authorizes operation of the Davis-Besse Contact Person: Dr. Michael R. Reeve, Nuclear Power Station (DBNPS), Unit 1 Section Head, Division of Ocean Sciences, In accordance with the Federal (the facility). The license provides, National Science Foundation, 4201 Wilson Advisory Committee Act (Pub. L. 92– among other things, that the facility is Blvd., Room 725, Arlington, VA 22230. 463, as amended), the National Science subject to all the rules, regulations, and Telephone: (703) 306–1582. Foundation announces the following Purpose of Meeting: To provide advice and orders of the U.S. Nuclear Regulatory recommendations concerning proposals meeting: Commission (the Commission) now or submitted to NSF for financial support. Name: Advisory Committee for hereafter in effect. Agenda: To review and evaluate LTER Mathematical and Physical Sciences. The facility is a pressurized-water proposals as part of the selection process for Date and Time: December 4, 1997 8:00 am– reactor located at the licensees’ site in awards. 5:30 pm; December 5, 1997 8:00 am–2:00 pm. Ottawa County, Ohio. 61152 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

II inadvertent criticality of the nuclear fuel accident could occur. Furthermore, the Section 70.24 of Title 10 of the Code at DBNPS and has determined that it is licensees have radiation monitors, as of Federal Regulations, ‘‘Criticality extremely unlikely that such an required by General Design Criterion 63, Accident Requirements,’’ requires that accident will occur if the licensees meet in fuel storage and handling areas. each licensee authorized to possess the following seven criteria: These monitors will alert personnel to 1. Only one new fuel assembly is special nuclear material maintain a excessive radiation levels and allow allowed out of a shipping cask or criticality accident monitoring system in them to initiate appropriate safety storage rack at one time; each area where such material is actions. The low probability of an 2. The k-effective does not exceed inadvertent criticality, together with the handled, used, or stored. Subsections 0.95, at a 95% probability, 95% (a)(1) and (a)(2) of 10 CFR 70.24 specify licensees’ adherence to General Design confidence level, in the event that the Criterion 63, constitutes good cause for detection and sensitivity requirements fresh fuel storage racks are filled with that these monitors must meet. granting an exemption to the fuel of the maximum permissible U–235 requirements of 10 CFR 70.24. Subsection (a)(1) also specifies that all enrichment and flooded with pure areas subject to criticality accident The Commission has determined that water; pursuant to 10 CFR 70.14, this monitoring must be covered by two 3. If optimum moderation occurs at detectors. Subsection (a)(3) of 10 CFR exemption is authorized by law, will not low moderator density, the k-effective endanger life or property or the common 70.24 requires licensees to maintain does not exceed 0.98, at a 95% emergency procedures for each area in defense and security, and is otherwise probability, 95% confidence level, in in the public interest. Therefore, the which this licensed special nuclear the event that the fresh fuel storage material is handled, used, or stored and Commission hereby grants the licensees racks are filled with fuel of the an exemption from the requirements of provides that (1) the procedures ensure maximum permissible U–235 that all personnel withdraw to an area 10 CFR 70.24 for DBNPS. enrichment and flooded with a Pursuant to 10 CFR 51.32, the of safety upon the sounding of a moderator at the density corresponding criticality accident monitor alarm, (2) Commission has determined that the to optimum moderation; granting of this exemption will not the procedures must include drills to 4. The k-effective does not exceed familiarize personnel with the result in any significant adverse 0.95, at a 95% probability, 95% environmental impact (62 FR 59908). evacuation plan, and (3) the procedures confidence level, in the event that the designate responsible individuals for This exemption is effective upon spent fuel storage racks are filled with issuance. determining the cause of the alarm and fuel of the maximum permissible U–235 placement of radiation survey enrichment and flooded with pure Dated at Rockville, Maryland, this 7th day instruments in accessible locations for water; of November 1997. use in such an emergency. Subsection 5. The quantity of special nuclear For the Nuclear Regulatory Commission. (b)(1) of 10 CFR 70.24 requires licensees material, other than nuclear fuel, stored Samuel J. Collins, to provide the means for identifying onsite in any given area is less than the Director, Office of Nuclear Reactor quickly any personnel who have quantity necessary for a critical mass; Regulation. received a dose of 10 rads or more. 6. Radiation monitors, as required by [FR Doc. 97–29977 Filed 11–13–97; 8:45 am] Subsection (b)(2) of 10 CFR 70.24 General Design Criterion 63, are BILLING CODE 7590±01±P requires licensees to maintain personnel provided in fuel storage and handling decontamination facilities, to maintain areas to detect excessive radiation levels arrangements for a physician and other and to initiate appropriate safety PENSION BENEFIT GUARANTY medical personnel qualified to handle actions; and CORPORATION radiation emergencies, and to maintain 7. The maximum nominal U–235 arrangements for the transportation of enrichment is limited to 5.0 weight Interest Assumption for Determining contaminated individuals to treatment percent. Variable-Rate Premium; Interest facilities outside the site boundary. By letter dated January 30, 1997, as Assumptions for Multiemployer Plan Paragraph (c) of 10 CFR 70.24 exempts supplemented May 28 and October 3, Valuations Following Mass Withdrawal Part 50 licensees from the requirements 1997, the licensees requested an of paragraph (b) of 10 CFR 70.24 for exemption from 10 CFR 70.24. In this AGENCY: Pension Benefit Guaranty special nuclear material used or to be request, the licensees addressed the Corporation. used in the reactor. Subsection (d) of 10 seven criteria given above. The ACTION: Notice of interest rates and CFR 70.24 states that any licensee that Commission’s technical staff has assumptions. believes that there is good cause why it reviewed the licensees’ submittals and should be granted an exemption from all has determined that DBNPS meets the SUMMARY: This notice informs the public or part of 10 CFR 70.24 may apply to the criteria for prevention of inadvertent of the interest rates and assumptions to Commission for such an exemption and criticality. Therefore, the staff has be used under certain Pension Benefit shall specify the reasons for the relief determined that it is extremely unlikely Guaranty Corporation regulations. These requested. an inadvertent criticality will occur in rates and assumptions are published the handling of special nuclear elsewhere (or are derivable from rates III materials or in their storage areas at published elsewhere), but are collected The special nuclear material that DBNPS. and published in this notice for the could be assembled into a critical mass The purpose of the criticality convenience of the public. Interest rates at DBNPS is in the form of nuclear fuel. monitors required by 10 CFR 70.24 is to are also published on the PBGC’s home The quantity of special nuclear material ensure that if a criticality were to occur page (http://www.pbgc.gov). other than fuel that is stored onsite in during the handling of special nuclear DATES: The interest rate for determining any given location is small enough to material, personnel would be alerted to the variable-rate premium under part preclude achieving a critical mass. The that fact and would take appropriate 4006 applies to premium payment years Commission’s technical staff has action. The staff has determined that it beginning in November 1997. The evaluated the possibility of an is extremely unlikely that such an interest assumptions for performing Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61153 multiemployer plan valuations percentage of 85 percent and thus apply POSTAL SERVICE following mass withdrawal under part only to non-RPU plans. However, the 4281 apply to valuation dates occurring rates for months before July 1997, which United States Postal Service Board of in December 1997. reflect an applicable percentage of 80 Governors; Sunshine Act Meeting; FOR FURTHER INFORMATION CONTACT: percent, apply to RPU (and ‘‘partial’’ Notification of Item Added to Meeting Harold J. Ashner, Assistant General RPU) plans as well as to non-RPU plans. Agenda Counsel, Office of the General Counsel, Date of Meeting: November 3, 1997. Pension Benefit Guaranty Corporation, The as- Status: Closed. 1200 K Street, NW., Washington, DC For premium payment years be- sumed in- ginning in: terest Previous Announcement: 62 FR 55436, 20005, 202–326–4024. (For TTY and rate is: TDD, call 800–877–8339 and request October 24, 1997. connection to 202–326–4024.) December 1996 ...... 5.18 Change: At its meeting on November 3, January 1997 ...... 5.24 1997, the Board of Governors of the SUPPLEMENTARY INFORMATION: February 1997 ...... 5.46 United States Postal Service voted Variable-Rate Premiums March 1997 ...... 5.35 unanimously to add an item to the Section 4006(a)(3)(E)(iii)(II) of the April 1997 ...... 5.54 agenda of its closed meeting held on Employee Retirement Income Security May 1997 ...... 5.67 that date: Act of 1974 (ERISA) and § 4006.4(b)(1) June 1997 ...... 5.55 Consideration of Amendment to Board of the PBGC’s regulation on Premium July 1997 ...... 5.75 Bylaws. Rates (29 CFR part 4006) prescribe use August 1997 ...... 5.53 Contact Person for More Information: of an assumed interest rate in September 1997 ...... 5.59 Thomas J. Koerber, Secretary of the determining a single-employer plan’s October 1997 ...... 5.53 Board, U.S. Postal Service, 475 L’Enfant November 1997 ...... 5.38 variable-rate premium. The rate is the Plaza, SW., Washington, DC 20260– ‘‘applicable percentage’’ (described in 1000. Telephone (202) 268–4800. the statute and the regulation) of the For premium payment years Thomas J. Koerber, annual yield on 30-year Treasury beginning in November 1997, the Secretary. securities for the month preceding the assumed interest rate to be used in [FR Doc. 97–30165 Filed 11–12–97; 3:07 pm] beginning of the plan year for which determining variable-rate premiums for BILLING CODE 7710±12±M premiums are being paid (the ‘‘premium RPU plans (determined using an payment year’’). The yield figure is applicable percentage of 80 percent) is reported in Federal Reserve Statistical 5.06 percent. For ‘‘partial’’ RPU plans, RAILROAD RETIREMENT BOARD Releases G.13 and H.15. the assumed interest rates to be used in For plan years beginning before July determining variable-rate premiums can Sunshine Act Meeting 1, 1997, the applicable percentage of the be computed by applying the rules in 30-year Treasury yield was 80 percent. § 4006.5(g) of the premium rates Notice is hereby given that the The Retirement Protection Act of 1994 regulation. The PBGC’s premium Railroad Retirement Board will hold a (RPA) amended ERISA section payment instruction booklet also meeting on November 19, 1997, 9:00 4006(a)(3)(E)(iii)(II) to provide that the describes these rules and provides a a.m., at the Board’s meeting room on the applicable percentage is 85 percent for worksheet for computing the assumed 8th floor of its headquarters building, plan years beginning on or after July 1, rate. 844 North Rush Street, Chicago, Illinois, 1997, through (at least) plan years 60611. The agenda for this meeting beginning before January 1, 2000. Multiemployer Plan Valuations follows: However, under section 774(c) of the Following Mass Withdrawal RPA, the application of the amendment Portion Open to the Public is deferred for certain regulated public The PBGC’s regulation on Duties of (1) Draft Bill—Exemption from Full utility (RPU) plans for as long as six Plan Sponsor Following Mass Rent months. The applicable percentage for Withdrawal (29 CFR part 4281) (2) Medicare contract fiscal year 1998 RPU plans will therefore remain 80 prescribes the use of interest budget percent for plan years beginning before assumptions under the PBGC’s (3) Coverage Determination— January 1, 1998. (The rules governing regulation on Allocation of Assets in Transportation Management the applicable percentages for ‘‘partial’’ Single-employer Plans (29 CFR part Services, Inc. RPU plans are described in § 4006.5(g) 4044). The interest assumptions (4) Employee Service—Environmental of the premium rates regulation.) applicable to valuation dates in Contractors with CSX For plans for which the applicable December 1997 under part 4044 are Transportation Company percentage is 85 percent, the assumed contained in an amendment to part 4044 (5) Regulations—Part 220 (Subpart C, interest rate to be used in determining published elsewhere in today’s Federal Occupational Disability) variable-rate premiums for premium Register. Tables showing the (6) Fiscal Year 1998 Performance payment years beginning in November assumptions applicable to prior periods Appraisal Plans 1997 is 5.38 percent (i.e., 85 percent of are codified in appendix B to 29 CFR (7) Year 2000 Issues the 6.33 percent yield figure for October part 4044. (8) Labor Member Truth in Budgeting 1997). Issued in Washington, DC, on this 10th day Status Report The following table lists the assumed of November 1997. interest rates to be used in determining Portion Closed to the Public variable-rate premiums for premium David M. Strauss, (A) 1997 Performance Appraisals payment years beginning between Executive Director, Pension Benefit Guaranty (B) Pending Board appeals: December 1996 and November 1997. Corporation. 1. Beverly J. Anderson The rates for July through November [FR Doc. 97–30044 Filed 11–13–97; 8:45 am] 2. Martha G. Arnold 1997 in the table reflect an applicable BILLING CODE 7708±01±P 3. Sandra B. Banner 61154 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

4. Gussie Y. Brown Freeway, P.O. Box 660164, Dallas, Texas (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is 5. Odel Clay 75266, a non-utility subsidiary company hereby given that on October 14, 1997, 6. James C. Coutee of Central and South West Corporation, the American Stock Exchange, Inc. (the 7. Barbara A. Donofrio 8. Robert C. Hoffman, Sr. a registered holding company, has filed ‘‘Amex’’ or the ‘‘Exchange’’) filed with 9. Ronald E. Houck a post-effective amendment under the Securities and Exchange 10. John A. Soderman sections 9(a) and 10 of the Act and rule Commission (the ‘‘Commission’’) the The person to contact for more 54 under the Act to an application- proposed rule change as described in information is Beatrice Ezerski, declaration filed under sections 9(a) and Item I, II, and III below, which Items Secretary to the Board, Phone No. 312– 10 of the Act. have been prepared by the Exchange. By orders dated August 10, 1990 751–4920. The Commission is publishing this (HCAR No. 25132), December 18, 1992 Dated: November 10, 1997. notice to solicit comments on the (HCAR No. 25714), and December 28, Beatrice Ezerski, 1994 (HCAR No. 26206) (‘‘Orders’’), proposed rule change from interested Secretary to the Board. CSWS was authorized, among other persons. [FR Doc. 97–30095 Filed 11–12–97; 9:52 am] things, to license and sell to non- I. Self-Regulatory Organization’s BILLING CODE 7905±01±M associate entities through December 31, Statement of the Terms of Substance of 1997 specialized computer programs the Proposed Rule Change and to provide support services to SECURITIES AND EXCHANGE licensees and entities that purchased the The Amex proposes to amend its COMMISSION software. The support services were to policy to include additional physically [Release No. 35±26776] include program enhancements and separate locations on the Exchange’s problem resolution and were to be sold trading floor where options on Amex- Filings Under the Public Utility Holding to non-associate companies for an listed stocks may trade. The information Company Act of 1935, as Amended amount not less than cost to CSWS. will be found in an upcoming (``Act'') The Orders also authorized CSWS to information circular of the Exchange. make expenditures of up to $1 million November 7, 1997. II. Self-Regulatory Organization’s Notice is hereby given that the per calendar year and to make expenditures of up to $250,000 per following filing(s) has/have been made Statement of the Purpose of, and project to develop or change software with the Commission pursuant to Statutory for, the Proposed Rule Change provisions of the Act and rules for non-associate entities; to market software and services; and to add up to In its filing with the Commission, the promulgated thereunder. All interested Amex included statements concerning persons are referred to the application(s) ten employees to support these the purpose of and basis for the and/or declaration(s) for complete activities. statements of the proposed Finally, the Orders authorized CSWS proposed rule change and discussed any transaction(s) summarized below. The to sell reserve computer capacity and to comments it received on the proposed application(s) and/or declaration(s) and provide date management services to rule change. The text of these statements any amendments thereto is/are available non-associate entities provided that may be examined at the places specified for public inspection through the CSWS would limit computer capacity in Item IV below. The Amex has Commission’s Office of Public sales to non-associate entities to 50 prepared summaries, set forth in Reference. percent of its total capacity. sections A, B, and C below, of the most Interested persons wishing to CSWS now requests that the significant aspects of such statements. comment or request a hearing on the Commission extend the term of the application(s) and/or declaration(s) authorizations contained in the Orders A. Self-Regulatory Organization’s should submit their views in writing by through December 31, 2002. Statement of the Purpose of, and the December 1, 1997, to the Secretary, For the Commission, by the Division of Statutory Basis for, the Proposed Rule Securities and Exchange Commission, Investment Management, pursuant to Change delegated authority. Washington, D.C. 20549, and serve a (1) Purpose copy on the relevant applicant(s) and/or Margaret H. McFarland, declarant(s) at the address(es) specified Deputy Secretary. In 1988, the Exchange received below. Proof of service (by affidavit or, [FR Doc. 97–29988 Filed 11–13–97; 8:45 am] Commission approval to trade options in case of an attorney at law, by BILLING CODE 8010±01±M on Amex-listed stocks.1 The approval certificate) should be filed with the was based upon the Amex’s trading request. Any request for hearing shall floor for equities and options on those identify specifically the issues of fact or SECURITIES AND EXCHANGE equities being sufficiently separated law that are disputed. A person who so COMMISSION such that there could be no time and requests will be notified of any hearing, [Release No. 34±39306; File No. SR±AMEX± if ordered, and will receive a copy of 97±37] any notice or order issued in the matter. After said date, the application(s) and/ Self-Regulatory Organizations; Notice or declaration(s), as filed or as amended, of Filing of Proposed Rule Change by may be granted and/or permitted to the American Stock Exchange, Inc., become effective. Relating to Its Designated Options Central and South West Services, Inc. Area (70–7671) November 6, 1997. Central and South West Services, Inc. Pursuant to Section 19(b)(1) of the 1 Securities Exchange Act Release No. 26147 (‘‘CSWS’’), 1616 Woodall Rodgers Securities Exchange Act of 1934 (October 3, 1988), 53 FR 39556 (October 7, 1988). Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61155 place advantage derived from the Stock Area.2 Consistent with the (2) Basis physical proximity of the two floors Commission’s approval of that proposal, The proposed rule change is which could be exploited. the Mezzanine and the Back Row are consistent with Section 6(b) of the Act 3 Since the 1988 approval was granted, physically separate from the Designated in general and furthers the objectives of the trading of options on Amex-listed Stock Area so as to avoid direct sight Section 6(b)(5) 4 in particular in that it securities has continued to occur on the lines and communication by means of is designed to prevent fraudulent and Exchange at locations that are hand signals between either the manipulative acts and practices, to physically separate from the locations Mezzanine or the Back Row and the promote just and equitable principles of where the trading of Amex-listed stocks Designated Stock Area. trade, to foster cooperation and occurs. The Exchange contains The proposed rule change will not coordination with persons engaged in additional locations that are also increase the potential for trading abuse facilitating transactions in securities, physically separate from the locations or manipulation as there is no line of and to remove impediments to and where Amex-listed stocks trade that sight between the Mezzanine and the perfect the mechanism of a free and have yet to be designated as areas for the Back Row and the Designated Stock open market and a national market trading of options on Amex-listed Area, thus no time or place advantage system. stocks. The Exchange now proposes to results from the proposed rule change. B. Self-Regulatory Organization’s amend its policy to include those Although the proposed rule change will Statement on Burden on competition additional physically separate locations not increase the potential for trading as areas where the trading of options on The Exchange does not believe that abuse or manipulation, the Exchange Amex-listed stocks may occur (the the proposed rule change will impose does currently have in place various ‘‘Designated Options Area’’). any burden on competition. safeguards to detect and prevent any While the number of options on such abuse or manipulation. These C. Self-Regulatory Organization’s Amex-listed stocks has increased safeguards include Amex Rule 175, Statement on Comments on the slowly, to approximately 45 classes which prohibits any specialist from Proposed Rule Change Received From since 1988, the overall number of option acting as an options specialist or Members, Participants or Others classes traded on the Exchange has functioning in any capacity involving No written comments were solicited increased over 350% since that time. As marketmaking responsibilities in any or received with respect to the proposed a result of this increase in classes of option as to which the underlying rule change. options traded at Amex, the Exchange security is a stock in which the III. Date of Effectiveness of the currently lacks flexibility in moving specialist is registered as such. trading units around its trading floors. Proposed Rule Change and Timing for Those specialist units currently trading In addition to the safeguards Commission Action options on Amex-listed stocks are contained in Amex Rules 175, the Within 35 days of the date of forced to remain in the current Exchange prohibits, under Amex Rule publication of this notice in the Federal Designated Options Area, even though 958, any equity specialist, odd-lot dealer Register or within such longer period (i) they have outgrown their space, or face or Nasdaq market maker from acting as as the Commission may designate up to giving up those classes to move to larger a registered trader in a class of stock 90 days of such date if it finds such quarters. Moreover, specialist units that options on a stock in which he is longer period to be appropriate and currently do not trade any options on registered in the primary market place. publishes its reasons for so finding or Amex-listed stocks are unable to do so This Rule also prohibits any member, (ii) as to which the Exchange consents, because there is no room left in the while acting as a Registered Options the Commission will: current Designated Options Area. The Trader, if he is also registered as a (A) by order approve such proposed increase in classes of options traded on Registered Equity Trader or Registered rule change, or the Exchange and the Exchange’s need Equity Marketmaker, from executing a (B) institute proceedings to determine for flexibility in moving the various proprietary Exchange option transaction whether the proposed rule change trading units around the Exchange’s on an Amex-listed stock if during the should be disapproved. trading floors has made it necessary for preceding 60 minutes, he has been in IV. Solicitation of Comments the Exchange to find additional the Designated Stock Area where the physically separate locations to include Amex-listed stock is traded. Interested persons are invited to in the Designated Options Area. submit written data, views and To insure compliance with the above arguments concerning the foregoing. To address the above concerns, the safeguards, the Exchange has in place Persons making written submissions Exchange proposes to include in its various surveillance procedures. The should file six copies thereof with the Designated Options Area the mezzanine Exchange’s surveillance procedures, Secretary, Securities and Exchange trading level located above the which are set forth at Section XI, C of Commission, 450 Fifth Street, N.W., Exchange’s main equity trading floor the Amex Trading Analysis Options Washington, D.C. 20549. Copies of the area (the ‘‘Mezzanine’’) and that area of Surveillance Manual Concerning Paired submission, all subsequent the Exchange consisting of the back row Security Review, including, among amendments, all written statements of the west side of the Exchange’s main other items, the preparation of daily with respect to the proposed rule trading floor also referred to as the west activity reports on Registered Options change that are filled with the side of Exchange Post 12, 13, and 15 Trader’s (‘‘ROT’’) trading activity in Commission, and all written (the ‘‘Back Row’’). The Commission Amex-listed stocks and options. These communications relating to the recognized in 1994 that the Mezzanine reports are than used to analyzed ROT proposed rule change between the is a physically separate trading location trading activity to insure compliance Commission and any person, other than when it approved the inclusion of with Amex Rule 958. those that may be withheld from the Amex-listed stocks in stock industry index groups provided the index traded 2 Securities Exchange Act Release No. 34359 (July 3 15 U.S.C. § 78f(b). separate from the Exchange’s Designated 12, 1994), 59 FR 36799 (July 19, 1994). 4 15 U.S.C. § 78f(b)(5). 61156 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices public in accordance with the II. Self-Regulatory Organization’s Equity FLEX qualified participants. By provisions of 5 U.S.C. 552, will be Statement of the Purpose of, and allowing for the extension of the available for inspection and copying in Statutory Basis for, the Proposed Rule maturity of FLEX equity options to five the Commission’s Public Reference Change years in situations where there is Section, 450 Fifth Street, N.W., In its filing with the Commission, the demand for a longer term expiration and Washington, D.C. 20549. Copies of such self-regulatory organization included where there is sufficient liquidity filing will also be available for statements concerning the purpose of among Exchange qualified market- inspection and copying at the principal and basis for the proposed rule change makers to support the request, the office of the Amex. All submissions and discussed any comments it received proposed rule change will better serve should refer to SR–AMEX–97–37 and on the proposed rule change. The text the needs of CBOE’s customers and the should be submitted by December 5, of these statements may be examined at Exchange members who make a market 1997. the places specified in Item IV below. for such customers. For the Commission by the Division of The self-regulatory organization has 2. Statutory Basis prepared summaries, set forth in Market Regulation, pursuant to delegated The Exchange represents that the 5 Sections A, B, and C below, of the most authority. proposed rule change is consistent with significant aspects of such statements. Margaret H. McFarland, Section 6(b)(5) of the Act 5 in that it is Deputy Secretary. A. Self-Regulatory Organization’s designed to promote just and equitable [FR Doc. 97–29931 Filed 11–13–97; 8:45 am] Statement of the Purpose of, and principles of trade, to remove BILLING CODE 8010±01±M Statutory Basis for, the Proposed Rule impediments to and perfect the Change mechanism of a free and open market and a national market system, and to 1. Purpose SECURITIES AND EXCHANGE protect investors and the public interest. COMMISSION The Exchange is proposing to allow FLEX equity options 3 traded on the B. Self-Regulatory Organization’s Exchange to have a maturity beyond Statement on Burden on Competition [Release No. 34±39305; File No. SR±CBOE± three years and up to five years in The Exchange does not believe that 97±57] certain circumstances. Currently, FLEX the proposed rule change will impose any inappropriate burden on Self-Regulatory Organizations; Notice equity options, by operation of Rule competition. of Filing of Proposed Rule Change by 24A.4(a)(4)(i), are limited to a maturity the Chicago Board Options Exchange, of three years. C. Self-Regulatory Organization’s Inc., Relating to Extension of the When the Exchange filed for Statement on Comments on the permission to list and trade FLEX equity Permissible Maturity of FLEX Equity Proposed Rule Change Received From options 4 it determined to limit the Options Members, Participants, or Others maturity of these options to three years No written comments were either November 6, 1997. because, unlike FLEX Index options which were already being traded on the solicited or received. Pursuant to Section 19(b)(1) of the Exchange since February 1993 and III. Date of Effectiveness of the Securities Exchange Act of 1934 which could have a maturity of up to 1 Proposed Rule Change and Timing for (‘‘Exchange Act’’ or ‘‘Act’’), and Rule five years, the Exchange was concerned 2 Commission Action 19b–4 thereunder, notice is hereby that there would not be sufficient given that on October 23, 1997, the liquidity in many equity option classes Within 35 days of the publication of Chicago Board Options Exchange, Inc. to support series with a longer term to this notice in the Federal Register or (‘‘CBOE’’ or ‘‘Exchange’’) filed with the expiration. Since it has traded FLEX within such longer period (i) as the Securities and Exchange Commission equity options, however, the Exchange Commission may designate up to 90 (‘‘Commission’’) the proposed rule has had numerous requests from broker- days of such date if it finds such longer change as described in Items I, II, and dealers to extend the maturity of FLEX period to be appropriate and publishes III below, which Items have been equity options to five years. Among the its reasons for so finding or (ii) as to prepared by the self-regulatory reasons the broker-dealer firms have which the self-regulatory organization organization. The Commission is been interested in seeking an extension consents, the Commission will: publishing this notice to solicit in the allowable maturity is that these (A) by order approve the proposed comments on the proposed rule change longer expiration FLEX equity options rule change, or from interested persons. might be used to hedge a firm’s longer (B) institute proceedings to determine term issuances of structured products whether the proposed rule change I. Self-Regulatory Organization’s should be disapproved. Statement of the Terms of Substance of linked to returns of an individual stock. the Proposed Rule Change The Rule would permit the longer term IV. Solicitation of Comments FLEX equity options to be listed when Interested persons are invited to requested by the submitting member if The CBOE proposes to change its submit written data, views, and the FLEX Post Official determined that rules to permit a FLEX equity option to arguments concerning the foregoing. sufficient liquidity existed among have a term of five years in certain Persons making written submissions circumstances. should file six copies thereof with the 3 FLEX equity options are flexible exchange- The text of the proposed rule change traded options contracts which overlie equity Secretary, Securities and Exchange is available at the Office of the securities. In addition, FLEX equity options provide Commission, 450 Fifth Street, N.W., Secretary, CBOE and at the Commission. investors with the ability to customize basic option Washington, D.C. 20549. Copies of the features including size, expiration date, exercise submission, all subsequent style, and certain exercise prices. 17 17 CFR 200.30–3(a)(12). 4 SR–CBOE–95–43 approved in Exchange Act amendments, all written statements 1 15 U.S.C. § 78s(b)(1). Release No. 36841 (February 14, 1996), 61 FR 6666 2 17 CFR 240.19b–4. (February 21, 1996). 5 15 U.S.C. § 78f(b). Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61157 with respect to the proposed rule Article VIII (e) Recommending the purchase of change that are filed with the Business Conduct securities or the continuing purchase of Commission, and all written securities in amounts that are communications relating to the Rule 25. (a) In recommending to a inconsistent with the reasonable proposed rule change between the customer the purchase, sale or exchange expectation that the customer has the Commission and any person, other than of any security, a member shall have financial ability to meet such a those that may be withheld from the reasonable grounds for believing that commitment. the recommendation is suitable for such public in accordance with the .02 Derivatives and Other New customer upon the basis of the facts, if provisions of 5 U.S.C. 552, will be Financial Products. As new financial any, disclosed by such customer as to available for inspection and copying at products are introduced into the his other security holdings and as to his the Commission’s Public Reference marketplace, it is important that financial situation and needs. Room. Copies of such filing will also be members make every effort to available for inspection and copying at (b) Prior to the execution of a transaction recommended to a familiarize themselves with each the principal office of the Exchange. All customer’s financial situation, trading submissions should refer to File No. customer, other than transactions with customers where investments are experience, and ability to meet the risks SR–CBOE–97–57 and should be involved with such products and to submitted by December 5, 1997. limited to money market mutual funds, a member shall make reasonable efforts make every effort to make customers For the Commission, by the Division of to obtain information concerning: aware of the pertinent information Market Regulation, pursuant to delegated (i) the customer’s financial status; regarding new financial products. authority.6 (ii) the customer’s tax status; Moreover, members should be careful to Margaret H. McFarland, (iii) the customer’s investment always comply with all Exchange Deputy Secretary. objectives; requirements regarding the trading of such products. [FR Doc. 97–29932 Filed 11–13–97; 8:45 am] (iv) such other information used or considered to be reasonable by such BILLING CODE 8010±01±M II. Self-Regulatory Organization’s member or registered representative in Statement of the Purpose of, and making recommendations to the Statutory Basis for, the Proposed Rule SECURITIES AND EXCHANGE customer. Change COMMISSION Interpretations and Policies In its filing with the Commission, the .01 The following is a non-exclusive Exchange included statements [Release No. 34±39307; File No. SR±CHX± list of practices that the Exchange concerning the purpose of, and basis for, 97±21] deems to violate a member’s duty to the proposed rule change and discussed recommend to a customer only Self-Regulatory Organizations; Notice any comments it received on the securities suitable for that customer. proposed rule change. The text of these of Filing of Proposed Rule Change by (a) Recommending speculative low- the Chicago Stock Exchange, statements may be examined at the priced securities to customers without places specified in Item IV below. The Incorporated, Regarding Suitability of knowledge of or an attempt to obtain Customer Recommendations Exchange has prepared summaries, set information concerning the customers’ forth in sections A, B, and C below, of November 6, 1997. other securities holdings, their financial the most significant aspects of such situation and other necessary data. statements. Pursuant to Section 19(b)(1) of the (b) Excessive activity in a customer’s Securities Exchange Act of 1934 account, often referred to as ‘‘churning’ A. Self-Regulatory Organization’s (‘‘Act’’) 1 and Rule 19b–4,2 notice is or ‘‘overtrading.’’ There are no specific Statement of the Purpose of, and hereby given that on September 18, standards to measure excessiveness of Statutory Basis for, the Purposed Rule 1997, the Chicago Stock Exchange, trading in customer accounts, because Change Incorporated (‘‘CHX’’ or ‘‘Exchange’’) this must be related to the objectives 1. Purpose file with the Securities and Exchange and financial situation of the customer Commission (‘‘Commission’’ or ‘‘SEC’’) involved. The Exchange currently does not have the proposed rule change, as described (c) Trading in mutual fund shares, a rule that expressly addresses in Items I, II, and III below, which Items particularly on a short-term basis. It is suitability, churning and related matters have been prepared by the self- clear that normally these securities are for Exchange members. While the regulatory organization. The not proper trading vehicles and such Exchange believes that such conduct Commission is publishing this notice to activity on its face may raise the may currently fall within existing solicit comments on the proposed rule question of trade violation. Exchange rules, such as the Exchange’s change from interested persons. (d) Fraudulent activity, including: rule relating to ‘‘just and equitable’’ I. Self-Regulatory Organization’s establishing fictitious accounts in order activity, the Exchange believes that it is Statement of the Terms of Substance of to execute transactions which otherwise desirable at this time to specifically the Proposed Change would be prohibited; executing address this type of conduct. As a result, transactions in discretionary accounts the purpose of the proposed rule change The Exchange proposes to add Article in excess of or without actual authority is to add Rule 25 to Article VIII of the VIII, Rule 25 to the Exchange’s Rules from customers; causing the execution Exchange’s rules, requiring that, in relating to market-at-the-close orders. of transactions which are unauthorized recommending to a customer the The text of the proposed rule change is by customers or the sending of purchase, sale or exchange of any as follows: new text is italicized. confirmations in order to cause security, a member must have customers to accept transactions not reasonable grounds for believing that 6 17 CFR 200.30–3(a)(12). actually agreed upon; and unauthorized the recommendation is suitable for such 1 15 U.S.C. § 78s(b)(1). use or borrowing of customers’ funds customer upon the basis of the facts, if 2 17 CFR 240.19b–4. and securities. any, disclosed by such customer as to 61158 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices his other security holdings and as to his and equitable principles of trade, to should refer to File No. SR–CHX–97–21 financial situation and needs. foster cooperation and coordination and should be submitted by December Specifically, prior to the execution of with persons regulating securities 5, 1997. a transaction recommended to a transactions, to remove impediments to For the Commission, by the Division of customer, other than transactions with and perfect the mechanism of a free and Market Regulation, pursuant to delegated customers where investments are open market and a national market authority.3 limited to money market mutual funds, system and, in general, to protect Margaret H. McFarland, a member would be required to make investors and the public interest. Deputy Secretary. reasonable efforts to obtain information [FR Doc. 97–29987 Filed 11–13–97; 8:45 am] concerning the customer’s financial B. Self-Regulatory Organization’s status, the customer’s tax status, the Statement on Burden on Competition BILLING CODE 8070±01±M customer’s investment objectives, and The Exchange does not believe that such other information used or the proposed rule change will impose SECURITIES AND EXCHANGE considered to be reasonable by such any burden on competition. COMMISSION member or registered representative in C. Self-Regulatory Organization’s making recommendations to the [Release No. 34±39309; File No. SR±GSCC± customer. Statement on Comments on the 97±06] The rule change would contain a non- Proposed Rule Change Received From Self-Regulatory Organizations; exclusive list of practices that the Members, Participants or Others Government Securities Clearing Exchange deems to violate a member’s The Exchange has neither solicited Corporation; Notice of Filing and Order duty to recommend to a customer only nor received written comments on the Granting Accelerated Approval of a securities suitable for that customer. proposed rule change. Proposed Rule Change Regarding These would be: (1) Recommending III. Date of Effectiveness of the Funds-Only Settlement Payment speculative low-priced securities to Proposed Rule Change and Timing for Procedures customers without knowledge of or an Commission Action attempt to obtain information November 7, 1997. concerning the customers’ other Within 35 days of the date of Pursuant to Section 19(b)(1) of the securities holdings, their financial publication of this notice in the Federal Securities Exchange Act of 1934 situation and other necessary data; (2) Register or within such longer period (i) (‘‘Act’’),1 notice is hereby given that on excessive activity in a customer’s as the Commission may designate up to July 16, 1997, the Government account, often referred to as ‘‘churning’’ 90 days of such date if it finds such Securities Clearing Corporation or ‘‘overtrading’’; (3) trading in mutual longer period to be appropriate and (‘‘GSCC’’) filed with the Securities and fund shares, particularly on a short-term publishes its reasons for so finding or Exchange Commission (‘‘Commission’’) basis; (4) fraudulent activity (including (ii) as to which the self-regulatory and on September 19, 1997 and on establishing fictitious accounts in order organization consents, the Commission November 4, 1997, amended the to execute transactions which otherwise will: proposed rule change as described in would be prohibited, executing A. by order approve such proposed Items I and II below, which items have transactions in discretionary accounts in rule change, or been prepared primarily by GSCC. The excess of or without actual authority B. institute proceedings to determine Commission is publishing this notice to from customers, causing the execution whether the proposed rule change solicit comments from interested of transactions which are unauthorized should be disapproved. persons and to grant accelerated by customers or the sending of IV. Solicitation of Comments approval of the proposal. confirmations in order to cause customers to accept transactions not Interested persons are invited to I. Self-Regulatory Organization’s actually agreed upon, and unauthorized submit written data, views and Statement of the Terms of Substance of use or borrowing of customers’ funds arguments concerning the foregoing. the Proposed Rule Change and securities); and (5) recommending Persons making written submission The proposed rule change will amend the purchase of securities or the should file six copies thereof with the GSCC’s rules to provide netting continuing purchase of securities in Secretary, Securities and Exchange members with the option of making amounts that are inconsistent with the Commission, 450 Fifth Street, N.W., funds-only settlement payments to reasonable expectation that the Washington, D.C. 20549. Copies of the GSCC by authorizing banks to accept customer has the financial ability to submissions, all subsequent payment directions directly from GSCC. meet such a commitment. amendments, all written statements In addition, with regard to derivative with respect to the proposed rule II. Self-Regulatory Organization’s financial products, the rule change change that are filed with the Statement of the Purpose of, and would require that members made every Commission, and all written Statutory Basis for, the Proposed Rule effort to familiarize themselves with communications relating to the Change each customer’s financial situation, proposed rule change between the In its filing with the Commission, trading experience, and ability to meet Commission and any person, other than GSCC included statements concerning the risks involved with such products those that may be withheld from the the purpose of and basis for the and to make every effort to make public in accordance with the proposed rule change and discussed any customers aware of the pertinent provisions of 5 U.S.C. 552, will be comments it received on the proposed information regarding new financial available for inspection and copying at rule change. The text of these statements products. the Commission’s Public Reference may be examined at the places specified Room, 450 Fifth Street, N.W., in Item IV below. GSCC has prepared 2. Statutory Basis Washington, D.C. 20549. Copies of such summaries, set forth in sections (A), (B), The purposed rule change is filing will also be available for consistent with Section 6(b)(5) of the inspection and copying at the principal 3 17 CFR 300.30(a)(12). Act in that it is designed to promote just office of the CHX. All submissions 1 15 U.S.C. 78s(b)(1). Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61159 and (C) below, of the most significant to GSCC’s account by 9:00 a.m.4 on settlement efficiency and reduce aspects of such statements.2 behalf of netting members owing funds payment related risks to GSCC. to GSCC. If the bank does not intend to (A) Self-Regulatory Organization’s (B) Self-Regulatory Organization’s make any payments on behalf of Statement of the Purpose of, and Statement on Burden on Competition members, it will so inform GSCC by Statutory Basis for, the Proposed Rule GSCC does not believe that the Change 8:00 a.m. Therefore, GSCC effectively will be guaranteed payment by 8:00 a.m. proposed rule change will have any The main purpose of the proposed unless it receives a notice of dishonor impact or impose any burden on rule change is to amend GSCC’s rules from the bank. GSCC believes that the competition. concerning netting members’ funds-only use of the auto debit arrangement will settlement payments to GSCC. Under (C) Self-Regulatory Organization’s promote the timely receipt of funds Statement on Comments on the the proposed rule change, netting payments by GSCC and will reduce the members will have the option of Proposed Rule Change Received From operational duties GSCC encounters in Members, Participants or Others satisfying their funds-only settlement monitoring its current funds-only obligations with GSCC by way of an settlement payment process. Written comments relating to the automatic debit (‘‘auto debit’’) In connection with the auto debit proposed rule change have not yet been arrangement. GSCC has informed the arrangement, GSCC has proposed solicited or received. Members will be Commission that other clearing changes to certain of its other notified of the rule change filing and agencies, such as The Options Clearing procedures. First, GSCC will begin comments will be solicited by an Corporation, use such agreements to requiring all netting members to make important notice. GSCC will notify the facilitate their funds-only settlement funds-only settlement payments to Commission of any written comments process. GSCC by 9:00 a.m. and will enforce this received by GSCC. Under GSCC’s current rules, a netting deadline with the assistance of its new III. Date of Effectiveness of the member with an obligation to pay a fine schedule described in File No. SR– funds-only settlement amount to GSCC Proposed Rule Change and Timing for GSCC–97–04 as of January 2, 1998. In Commission Action on a particular business day instructs a December of this year, the earlier depository institution acceptable to Section 17A(b)(3)(F) of the Act 7 opening of the cash FedWire at 12:30 GSCC, currently The Bank of New York, requires that the rules of a clearing a.m. is scheduled to take effect. GSCC to make such payment to GSCC on its agency be designed to assure the previously received authorization from behalf. These payment procedures safeguarding of securities and funds in the Commission to require netting oblige GSCC each day to monitor its custody or control or for which it is members to make funds-only settlement continuously its account at the responsible. The Commission believes payments to GSCC by 9:00 a.m.5 depository institution to determine that the proposed rule change is However, because of its concern that whether every netting member with a consistent with this obligation because members would not be able to meet this funds-only settlement obligation to the auto debit arrangement will allow deadline on a consistent basis, GSCC GSCC has made its payment in a timely GSCC to increase its control over the has kept the deadline at 10:00 a.m. manner. payment of funds-only settlement The proposed auto debit arrangement Second, the proposed rule change will eliminate the extra hour for the payment payments. As a result, the amount of will supplement the current approach to time and energy GSCC currently spends payment processing. Under the to GSCC of funds-only settlement amounts currently in effect for netting monitoring netting members’ payments proposed rule change, netting members of their funds-only settlement will have the option to satisfy funds- members whose offices are located outside of the New York City time zone. obligations should be reduced and the only settlement obligations pursuant to risk of nonpayment or late payment of payment instructions given directly by GSCC believes that this extra hour is no longer necessary because of members’ such obligations should be reduced. GSCC to their banks. Each netting The Commission finds good cause for increased ability to make efficient and member choosing this option will enter approving the proposed rule change timely payments due to the earlier into an agreement with GSCC and a prior to the thirtieth day after the opening of the cash FedWire and the bank acceptable to both the member and publication of notice of filing. availability of the auto debit GSCC.3 The bank will be required to Approving prior to the thirtieth day arrangement. meet the financial, operational after publication of notice will allow Finally, under the proposed rule capability, and other requirements set GSCC to immediately begin change, GSCC will move the deadline forth in GSCC’s rules for eligibility to implementing the auto debit for it to pay a netting member any issue letters of credit on behalf of arrangement which should result in funds-only settlement payment it owes members for clearing fund purposes. increased efficiency in the clearance from 11:00 a.m. to 10:00 a.m. GSCC GSCC believes that because the bank and settlement process for GSCC’s believes that it is equitable for netting will maintain accounts on behalf of both netting members that use the members also to benefit from the the member and GSCC, it will be able arrangement. The Commission also availability of the earlier opening of the to make and to collect funds-only notes that use of the auto debit cash FedWire and the efficiencies of the settlement payments efficiently by arrangement will not be mandated by auto debit arrangement. posting debit and credit entries to the GSCC. applicable accounts on its own books. GSCC believes that the proposed rule Pursuant to the auto debit agreement, change is consistent with the IV. Solicitation of Comments the bank generally will make payment requirements of Section 17A(b)(3)(F) of Interested persons are invited to 6 the Act because it will increase submit written data, views, and 2 The Commission has modified the text of the arguments concerning the foregoing. 4 summaries prepared by GSCC. All times cited herein are New York time. Persons making written submissions 3 GSCC submitted a draft form of the agreement 5 Securities Exchange Act Release No. 33237 as Exhibit A to its filing, which is available for (November 22, 1993), 58 FR 63414 [File No. SR– should file six copies thereof with the review and copying at the Commission’s Public GSCC–91–04]. Reference Room and through GSCC. 6 15 U.S.C. 78q–1(b)(3)(F). 7 15 U.S.C. 78q–1(b)(3)(F). 61160 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

Secretary, Securities and Exchange comments on the proposed rule change 2. Statutory Basis Commission, 450 Fifth Street, N.W., from interested persons. The proposal is consistent with Washington, D.C. 20549. Copies of the I. Self-Regulatory Organization’s Section 6(b) of the Act, in general, and submission, all subsequent Statement of the Terms of Substance of Section 6(b)(4),6 in particular, in that it amendments, all written statements the Proposed Rule Change is designed to provide for the equitable with respect to the proposed rule allocation of reasonable dues, fees and change that are filed with the The Exchange is proposing to modify other charges among its members. Commission, and all written its Schedule of Rates for Exchange communications relating to the Services by changing its annual fee for B. Self-Regulatory Organization’s proposed rule change between the Automatic System Access Privilege Statement on Burden on Competition Commission and any person, other than (‘‘ASAP’’) Members.3 The text of the The Exchange does not believe that those that may be withheld from the proposed rule is available at the Office the proposed rule change will impose public in accordance with the of the Secretary, the PCX, and at the any burden on competition that is not provisions of 5 U.S.C. 552, will be Commission. necessary or appropriate in furtherance available for inspection and copying in II. Self-Regulatory Organization’s of the purposes of the Act. the Commission’s Public Reference Statement of the Purpose of, and Section, 450 Fifth Street, N.W., C. Self-Regulatory Organization’s Statutory Basis for, the Proposed Rule Statement on Comments on the Washington, D.C. 20549. Copies of such Change filing also will be available for Proposed Rule Change Received From inspection and copying at the principal In its filing with the Commission, the Members, Participants, or Others office of GSCC. All submissions should self-regulatory organization included Written comments on the proposed refer to File No. SR–GSCC–97–06 and statements concerning the purpose of rule change were neither solicited nor should be submitted by December 5, and basis for the proposed rule change received. 1997. and discussed any comments it received It is therefore ordered, pursuant to on the proposed rule change. The text III. Date of Effectiveness of the Proposed Rule Change and Timing for Section 19(b)(2) of the Act,8 that the of these statements may be examined at Commission Action proposed rule change (File No. SR– the places specified in Item IV below. GSCC–97–06) be and hereby is The self-regulatory organization has Because the foregoing rule change approved. prepared summaries, set forth in establishes or changes a due, fee, or For the Commission by the Division of sections A, B and C below, of the most other charge imposed by the Exchange, Market Regulation, pursuant to delegated significant aspects of such statements. it has become effective pursuant to authority.9 7 A. Self-Regulatory Organization’s Section 19(b)(3)(A) of the Act and Rule Margaret H. McFarland, 8 Statement of the Purpose of, and 19b–4(e) under the Act. At any time Deputy Secretary. Statutory Basis for, the Proposed Rule within 60 days of the filing of such [FR Doc. 97–29930 Filed 11–13–97; 8:45 am] Change proposed rule change, the Commission BILLING CODE 8010±01±M may summarily abrogate such rule 1. Purpose change if it appears to the Commission Under the Exchange’s current that such action is necessary or SECURITIES AND EXCHANGE Schedule of Rates, an ASAP Member is appropriate in the public interest, for COMMISSION required to pay the Exchange an annual the protection of investors, or otherwise fee equal to 20% of the average price of in furtherance of the purposes of the [Release No. 34±39311; File No. SR±PCX± Exchange membership sales in the three Act. 97±40] months immediately preceding the IV. Solicitation of Comments Member’s activation or renewal of Self-Regulatory Organizations; Notice Interested persons are invited to membership.4 The minimum ASAP fee of Filing and Immediate Effectiveness submit written data, views and is $4,000 (and it is non-refundable). of Proposed Rule Change by the arguments concerning the foregoing. The Exchange is now proposing to Pacific Exchange, Inc. Relating to a Persons making written submissions modify this fee, making it $4,000 per Fee Change for ASAP Members should file six copies thereof with the year (non-refundable). Secretary, Securities and Exchange November 7, 1997. The Exchange is reducing its fee for Commission, 450 Fifth Street, N.W., Pursuant to Section 19(b)(1) of the ASAP memberships in order to make its Washington, D.C. 20549. Copies of the Securities Exchange Act of 1934 rates applicable to electronic trading submission, all subsequent 1 2 (‘‘Act’’) and Rule 19b–4 thereunder, more competitive. The proposal is also amendments, all written statements notice is hereby given that on October intended to reduce the significant with respect to the proposed rule 30, 1997, the Pacific Exchange, Inc. increase in fees for ASAP memberships change that are filed with the (‘‘PCX’’ or ‘‘Exchange’’) filed with the that has accompanied the recent rise in 5 Commission, and all written Securities and Exchange Commission Exchange seat prices. communications relating to the (‘‘Commission’’ or ‘‘SEC’’) the proposed proposed rule change between the 3 ASAP Memberships are governed by PCX Rule rule change as described in Items I, II Commission and any person, other than and III below, which Items have been 1.14. 4 See Exchange Act Release No. 37913 (November those that may be withheld from the prepared by the self-regulatory 1, 1996) 61 FR 57936 (November 8, 1996) (PCX–96– public in accordance with the organization. The Commission is 33). In that filing, the Exchange had changed its fee provisions of 5 U.S.C. 552, will be publishing this notice to solicit from $4,000 a year to the current schedule as described in the text. 5 A PCX seat was sold for $380,000 recently; Market Regulation, Commission, on November 4, 8 15 U.S.C. 78s(b)(2). about the same time last year, a seat was sold for 1997. 9 17 CFR 200.30–3(a)(12). $145,000. Telephone conversation between Michael 6 15 U.S.C. 78f(b)(4). 1 15 U.S.C. 78s(b)(1). D. Pierson, Senior Attorney, PCX, and Vicky 7 15 U.S.C. 78s(b)(3)(A). 2 17 CFR 240.19b–4. Berberi-Doumar, Special Counsel, Division of 8 17 CFR 240.19b–4(e). Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61161 available for inspection and copying in of discrimination. The information will Lines and on Fishing Vessels Safety the Commission’s Public Reference be used to identify the complainant; (SLF) and associated bodies of the Room, 450 Fifth Street, N.W., identify the alleged discriminatory act; International Maritime Organization Washington, D.C. 20549. Copies of such ascertain the date of the alleged act; (IMO) which will be held on January filing will also be available for obtain the identity of the individual(s)/ 26–30, 1998, at the IMO Headquarters in inspection and copying at the principal facility/component that allegedly London, England. office of the PCX. All submissions discriminated; and ascertain other Items of discussion will include the should refer to File No. SR–PCX–97–40 relevant information that would assist following: and should be submitted by December in the investigation and resolution of a. Harmonization of damage stability 5, 1997. the complaints. The respondents are provisions in the IMO; b. Progress of the Intercessional For the Commission, by the Division of individuals who allege discrimination Market Regulations, pursuant to delegated on the grounds described above. Correspondence Group on Load Lines authority.9 Number of Respondents: 250. issues; Margaret H. McFarland, Frequency of Response: 1. c. Technical revisions to the Code on Deputy Secretary. Average Burden Per Response: 1 hour. Intact Stability; Estimated Annual Burden: 250 hours. d. High Speed Craft Code revision; [FR Doc. 97–29933 Filed 11–13–97; 8:45 am] Written comments and e. Role of the human element, BILLING CODE 8010±01±M recommendations regarding the including shipboard loading and information collection(s) should be stability software; and directed within 30 days to the OMB f. Safety aspects of ships engaged in SOCIAL SECURITY ADMINISTRATION Desk Officer and SSA Reports Clearance a ballast water exchange. Officer at the following addresses: Members of the public may attend Agency Information Collection this meeting up to the seating capacity Activities; Submissions for OMB (OMB) of the room. Review Office of Management and Budget, Interested persons may seek This notice lists information OIRA, Attn: Laura Oliven, New information by writing: Mr. Paul Cojeen, collection packages that have been sent Executive Office Building, Room U.S. Coast Guard Headquarters, to the Office of Management and Budget 10230, 725 17th St., NW, Washington, Commandant (G–MSE–2), Room 1308, (OMB) for clearance, in compliance D.C. 20503. 2100 Second Street, SW., Washington, DC 20593–0001 or by calling (202) 267– with Pub. L. 104–13 effective October 1, (SSA) 1995, The Paperwork Reduction Act of 2988. 1995. Social Security Administration, Dated: November 5, 1997. 1. Electronic Request for Replacement DCFAM, Attn: Nicholas E. Tagliareni, Russel A. La Mantia, 1–A–21 Operations Bldg., 6401 SSA–1099/SSA–1042S—0960–New. The Chairman, Shipping Coordinating Committee. Security Blvd., Baltimore, MD 21235. information requested will be used by [FR Doc. 97–29923 Filed 11–13–97; 8:45 am] the Social Security Administration To receive a copy of any of the forms BILLING CODE 4710±07±M (SSA) to provide replacement copies of or clearance packages, call the SSA Forms SSA–1099/SSA–1042S needed to Reports Clearance Officer on (410) 965– prepare Federal tax returns. Over 4125 or write to him at the address DEPARTMENT OF TRANSPORTATION 700,000 requests are received annually listed above. for replacement forms from Social Dated: November 7, 1997. Office of The Secretary Security beneficiaries by SSA field Nicholas E. Tagliareni, offices and teleservice centers. SSA Reports, Forms and Recordkeeping intends to offer the public the option to Reports Clearance Officer, Social Security Administration. Requirements Agency Information use the Internet to request that the Collection Activity Under OMB Review Agency mail to them a replacement [FR Doc. 97–29993 Filed 11–13–97; 8:45 am] SSA–1099/SSA–1042S, eliminating the BILLING CODE 4190±29±P AGENCY: Office of the Secretary, DOT. need for a phone call to a teleservice ACTION: Notice. center or a visit to a field office. The SUMMARY: respondents are Title II Social Security DEPARTMENT OF STATE In compliance with the Paperwork Reduction Act of 1995 (44 beneficiaries. [Public Notice No. 2627] Number of Respondents: 7,000. U.S.C. Chapter 35), this notice Frequency of Response: 1. Shipping Coordinating Committee; announces that the Information Average Burden Per Response: 5 Subcommittee on Safety of Life at Sea Collection Request (ICR) abstracted minutes. and Associated Bodies Working Group below has been forwarded to the Office Estimated Annual Burden: 583 hours. on Stability and Load Lines and on of Management and Budget (OMB) for 2. Discrimination Complaint Form— Fishing Vessels Safety; Meeting Notice review and comment. The ICR describes 0960–New. The information collected the nature of the information collection on form SSA–437 will be used by SSA The Working Group on Stability and and its expected burden. The Federal to investigate and informally resolve Load Lines and on Fishing Vessels Register Notice with a 60-day comment complaints of discrimination based on Safety of the Subcommittee on Safety of period soliciting comments on this race, color, national origin, sex, age, Life at Sea will conduct an open collection was published on August 26, religion and retaliation in any program meeting at 9 a.m. on Thursday, 1997 [62 FR 45287]. Three comments or activity conducted by SSA. A person December 4, 1997, in Room 1103, at were received, two from gas pipeline who believes that he or she has been U.S. Coast Guard Headquarters, 2100 operators and one from a pipeline discriminated against on any of the Second Street, SW., Washington, DC engineering consultant. The two gas above basis may file a written complaint 20593–0001. This meeting will discuss operators concurred with the need for the upcoming 41st Session of the NPMS. One commentor, a pipeline 9 17 CFR 200.30–3(a)(12). Subcommittee on Stability and Load engineering consultant, disagreed with 61162 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices the need for a national mapping and Special Programs Administration, DEPARTMENT OF TRANSPORTATION program and had several concerns with Room 8102, 400 Seventh Street, SW., the August 26, 1997 notice. One Washington, DC 20590. Federal Highway Administration operator agreed with RSPA’s estimate for the burden hours per company. The SUPPLEMENTARY INFORMATION: Environmental Impact Statement, Trumbull, Monroe and Newtown, CT other commentors stated that the burden Research and Special Programs hours were underestimated. One Administration (RSPA) AGENCY: Federal Highway commentor did not provide numbers on Administration (FHWA), DOT. Title: Mapping Pilot Program. the degree of the underestimate, while ACTION: Revised notice of intent. the other suggested two days per OMB Control Number: 2137–NEW. operator. RSPA’s burden hour estimate Type of Request: New Collection. SUMMARY: The FHWA is issuing this was from an actual pre-pilot test of the Notice to advise the public that an mapping program. Because RSPA has Affected Public: Gas transmission and Environmental Impact Statement will actually pre-tested this program on hazardous liquid operators. not be prepared for a proposed highway operators some of whom had electronic Abstract: The Department of project in Trumbull, Monroe, and maps and some who had only paper Transportation (DOT) along with other Newtown, Connecticut. A notice of maps, RSPA stands by its burden hour Federal and state agencies have been Intent to prepare an EIS was published estimates. The one dissenting working side by side with natural gas in the Federal Register on July 25, 1985. commentor also raised issues and hazardous liquid operators to Instead, an Environmental Assessment concerning the need and value of develop a national pipeline mapping will be prepared. NPMS, the accuracy of the maps system (NPMS). This system, when FOR FURTHER INFORMATION CONTACT: Mr. required under the pilot program, the complete, will depict and provide data Donald J. West, Division Administrator, costs of the regional repositories, and on the natural gas transmission and Federal Highway Administration, 628–2 the costs and benefits of a truly national larger liquid pipelines operating in the Hebron Ave., Suite 303, Glastonbury, mapping program. United States. The DOT is beginning a CT 06033–5007, Telephone: (860) 659– RSPA believes that access to a volunteer pilot program consisting of 36 6703 extension 3009; Mr. Edgar Hurle, complete and accurate NPMS is Director of Environmental Planning, necessary to ensure that RSPA has the pipeline operators (three from each of 12 states participating in the program). Bureau of Policy and Planning, 3800 best information for its emergency Berlin Turnpike, P.O. Box 317546, These 36 pipeline operators will response, compliance and enforcement Newington, CT 06131–7546, Telephone: provide electronic maps of 10–20 miles responsibilities. RSPA further believes (860) 594–2920. of their pipeline to one state as well as that it is important that its state partners SUPPLEMENTARY INFORMATION: Existing to one of six regional repositories for also have this same information. It is State Route 25 is a major arterial from their startup and operating costs. important to note that this mapping Interstate 95 in Bridgeport, Connecticut program is a joint effort of the Federal Estimated Annual Burden Hours: 144 to U.S. Route 7 in Brookfield, government, state agencies, and the hours. Connecticut. The corridor under study three major trade organizations Number of Respondents: 48. involves the section from State Route representing the natural gas and 111 in Trumbull to Interstate 84 in Send comments to the Office of hazardous liquid industries, the Newtown. Following the Notice of American Petroleum Institute (API), the Information and Regulatory Affairs, Intent for the preparation of a Draft EIS, American Gas Association (AGA), and Office of Management and Budget, 725– project scoping and preparation of the the Interstate Natural Gas Association 17th Street, NW., Washington, DC document began. Multiple expressway Of America (INGAA). The accuracy of 20503, Attention DOT Desk Officer. alternatives on new alignment were the information required of these maps Comments are invited on: whether the studied, as well as a widening of is to within 500 feet and the maps must proposed collection of information is existing Route 25 with a 100 foot right have a quality code describing the necessary for the proper performance of of way for a length of approximately 11 quality of the data provided. The the functions of the Department, miles. A minimal widening of the Federal Government has provided $2.4 including whether the information will existing road with a 75 foot right of way million for the NPMS system prior to have practical utility; the accuracy of and approximate length of 10 miles was 1997. It has budgeted $500,000.00 for the Department’s estimate of the burden also studied. In 1992, a strategic 1997 with an estimated $400,000.00 of the proposed information collection; financial plan was developed by the needed annually thereafter to maintain ways to enhance the quality, utility and Connecticut Department of this repository system. While RSPA clarity of the information to be Transportation (ConnDOT). This plan does not have an estimate of the collected; and ways to minimize the reevaluated major transportation project potential costs and benefits of a national burden of the collection of information in light of transportation needs and mapping network it is hoping that on respondents, including the use of financial constraints. Based on this information provided by this pilot plan, as well as severe environmental program will help RSPA estimate the automated collection techniques or other forms of information technology. concerns of the expressway alternatives, net benefits of a national mapping the ConnDOT decided to narrow the system in the future if that is required. Issued in Washington, DC on November 5, scope of the project to only the The question for now is to test a 1997. widening alternative which has the least volunteer mapping pilot program. Vanester M. Williams, environmental and socio-economic DATES: Comments on this notice must be Clearance Officer, United States Department impacts of all previously studied received on or before December 15, of Transportation. alternatives. No significant impacts are 1997. [FR Doc. 97–30024 Filed 11–13–97; 8:45 am] foreseen from the limited widening. FOR FURTHER INFORMATION CONTACT: Mr. BILLING CODE 4910±62±P In light of the change of scope of the Marvin Fell, (202) 366–6205 or write by project, the FHWA and the ConnDOT E-mail to [email protected]., Research agree that the foreseen impacts of this Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61163 project no longer warrant an EIS. An the NWS, directly or through a contract a. The means to receive within 15 minutes Environmental Assessment will be weather forecasting service, by the train of issuance by the National Weather Service prepared and processed to fully analyze dispatchers or other employees controlling (NWS) all NWS flood warnings for the area the proposal. the movement of trains on all track of Class in which the track is located; or 4 or higher or upon which passenger trains b. An arrangement with a competent (Catalog of Federal Domestic Assistance operate in commuter or intercity service, commercial weather service which receives Program Number 20.205, Highway Planning within the warning area. In the case of such and reviews warnings and weather data from and Construction. The regulations track located outside of the warning area but the NWS as part of its warning procedures, implementing Executive Order 12372 subject to damage from water resulting from and from which the railroad receives regarding intergovernmental consultation on the storm, the information should be warnings and weather information that is Federal programs and activities apply to this obtained in time to permit timely response by specific to the situation and requirements of program) the railroad. the railroad. Authority: 23 U.S.C. 315; 49 CFR 1.48. The intent of the recommendation is for Issued in Washington, DC, on November 10, 1997. Issued on: October 31, 1997. all flash flood warnings issued by the George A. Gavalla, Donald J. West, NWS for the area in which an affected Division Administrator, Glastonbury, railroad operates to be received by the Acting Associate Administrator for Safety. Connecticut. personnel who control train operations [FR Doc. 97–30032 Filed 11–13–97; 8:45 am] [FR Doc. 97–29924 Filed 11–13–97; 8:45 am] in the area of the warning. It is not BILLING CODE 4910±06±P BILLING CODE 4910±22±M necessary that the warning come directly from the NWS, but it should be received intact and in a timely manner. DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION Since SA 97–1 was issued, FRA has Research and Special Programs become aware of several circumstances Federal Railroad Administration Administration in which large railroads with Notice of Safety Advisory centralized dispatching operations have International Standards on the contracted with specialized weather Transport of Dangerous Goods; Public AGENCY: Federal Railroad services for weather information Meeting Administration (FRA), DOT. tailored to the situation and ACTION: Notice of safety advisory requirements of the railroad. Several of AGENCY: Research and Special Programs amendment. those contract services do not pass on Administration (RSPA), Department of all NWS warnings, but instead analyze Transportation. SUMMARY: FRA is amending Safety the warnings in the light of other ACTION: Notice of public meeting. Advisory 97–1, which addresses safety weather data available to them and their SUMMARY: This notice is to advise practices to reduce the risk of casualties knowledge of the specific situation and interested persons that RSPA will from train derailments caused by requirements of their clients in order to conduct a public meeting to report on damage to tracks, roadbed, and bridges provide only the weather information the results of the fourteenth session of resulting from uncontrolled flows of that affects the client and to filter out the United Nation’s Sub-Committee of water and similar weather-related irrelevant information. This process Experts on the Transport of Dangerous phenomena, by revising the reduces the amount of information that Goods (UNSCOE) and to discuss the recommendation concerning the the client is required to consider and work program for U.S. participation in transmission of flash flood warnings to evaluate, and allows the client to focus future meetings of the UN Sub- train dispatchers or other employees on information that, in the view of the Committee of Experts on the Transport controlling the movement of trains. contract weather service, might actually of Dangerous Goods during the 1997– FOR FURTHER INFORMATION CONTACT: affect the client’s property and 1998 biennium. Gordon A. Davids, P.E., Bridge operations. DATES: January 6, 1998 at 9:30 a.m. Engineer, Office of Safety Assurance FRA now believes that this procedure and Compliance, FRA, 400 Seventh offered by contract weather services ADDRESSES: Room 8236–8240 Nassif Street, S.W., RRS–15, Mail Stop 25, might meet the requirements of some Building, 400 Seventh Street SW., Washington, D.C. 20590 (telephone railroads better than if all NWS Washington, DC 20590. 202–632–3340) or Daniel L. Alpert, Trial warnings are passed on by the contract FOR FURTHER INFORMATION CONTACT: Frits Attorney, Office of Chief Counsel, FRA, weather service en masse, regardless of Wybenga, International Standards 400 Seventh Street, S.W., RCC–12, Mail their relevance to the individual Coordinator, Office of Hazardous Stop 10, Washington, D.C. 20590 railroad. Therefore, Safety Advisory 97– Materials Safety, Department of (telephone 202–632–3186). 1 is amended in part by revising Transportation, Washington, DC 20590; SUPPLEMENTARY INFORMATION: On Recommendation 1 to read as follows: (202) 366–0656. SUPPLEMENTARY INFORMATION: September 4, 1997, FRA issued Safety 1. The railroad should have in place a The Advisory 97–1 (SA 97–1) (62 FR 46793), procedure that will assure that the train primary purpose of this meeting will be recommending that railroads take dispatchers or other employees controlling to (1) review the outcome of the certain actions to reduce the risk of train the movement of trains on all track of Class fourteenth session of the UNSCOE held derailments which could result from 4 or higher or upon which passenger trains from December 8–18, 1997 in Geneva severe weather conditions, particularly operate in commuter or intercity service will Switzerland and to begin preparation for undetected flash floods. The first receive timely warnings of any flash flood U.S. participation in the fifteenth recommendation of SA 97–1 reads as that might damage that track or its supporting session of the UNSCOE. Topics to be structures. In the case of such track located covered during the public meeting follows: outside of the warning area but subject to 1. The railroad should have in place a damage from water resulting from the storm, include matters related to reformatting procedure that will assure that all the information should be obtained in time the UN Recommendations on the notifications issued by the National Weather to permit timely response by the railroad. Transport of Dangerous Goods into a Service (NWS) of flash flood warnings will be The warning procedure should incorporate model rule, criteria for environmentally received within 15 minutes of issuance from either: hazardous substances, review of 61164 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices intermodal portable tank requirements, requirements of 49 U.S.C. 14303(a)(5), to are anticipated from the common review of the requirements applicable to acquire control of Air Travel control. Coach also states that all small quantities of hazardous materials Transportation, Inc.; Airlines collective bargaining agreements will be in transport (limited quantities), Acquisition Co., Inc., and honored, that employee benefits will classification of individual substances, Transportation Management Services, improve, and that no change in requirements for bulk and non-bulk Inc., motor carriers of passengers. management personnel is planned. packagings used to transport hazardous DATES: Comments must be filed by Additional information may be obtained material, requirements for inhalation December 15, 1997. Petitioner may file from Petitioners’ representatives. toxicity materials, requirements and a reply by December 24, 1997. A copy of this notice will be served international harmonization of ADDRESSES: Send an original and 10 on the Department of Justice, Antitrust classification criteria and labeling. copies of comments referring to STB Division, 10th Street and Pennsylvania The public is invited to attend Finance Docket No. 33471 to: Surface Avenue, N.W. Washington, D.C. 20530. without prior notification. Transportation Board, Office of the Decided: November 3, 1997. Documents Secretary, Case Control Unit, 1925 K By the Board, Chairman Morgan and Vice Street, N.W., Washington, D.C. 20423– Chairman Owen. Copies of documents submitted to the 0001. In addition, send one copy of fourteenth session of the UNSCOE may Vernon A. Williams, comments to Petitioners’ Secretary. be obtained from RSPA or may be representatives: Betty Jo Christian and [FR Doc. 97–29997 Filed 11–13–97; 8:45 am] downloaded from the Internet at http:/ David H. Coburn, Steptoe & Johnson /www.itu.int/itudoc/un/editrans/dgdb/ LLP, 1330 Connecticut Avenue, N.W., BILLING CODE 4915±00±P dgscomm/scdocsnw,html. Washington, D.C. 20036. Issued in Washington, DC, on November 7, FOR FURTHER INFORMATION CONTACT: 1997. Joseph H. Dettmar, (202) 565–1600 [TDD DEPARTMENT OF THE TREASURY Alan I. Roberts, for the hearing impaired: (202) 565– Customs Service Associate Administrator for Hazardous 1695]. Materials Safety. SUPPLEMENTARY INFORMATION: Coach, a [T.D. 97±94] [FR Doc. 97–30025 Filed 11–13–97; 8:45 am] noncarrier, seeks an exemption to BILLING CODE 4910±60±M acquire control of three motor carriers of Recordation of Trade Name: ``IBBI'' passengers: (1) Air Travel AGENCY: U.S. Customs Service, Transportation, Inc., d/b/a Atlanta Department of the Treasury. DEPARTMENT OF TRANSPORTATION Airport Shuttle (MC–166420), a Georgia- based carrier that primarily operates ACTION: Notice of recordation. Surface Transportation Board airport shuttle service to and from SUMMARY: On July 22, 1997, a notice of [STB Finance Docket No. 33471] Atlanta’s Hartsfield International application for the recordation under Airport; (2) Airlines Acquisition Co., Coach USA, Inc.ÐControl ExemptionÐ section 42 of the Act of July 5, 1946, as Inc., d/b/a Airlines Transportation amended (15 U.S.C. 1124), of the trade Air Travel Transportation, Inc.; Airlines Company (MC–223575), a Pennsylvania- Acquisition Co., Inc.; and name ‘‘IBBI,’’ was published in the based carrier that primarily operates Federal Register (62 FR 39302). The Transportation Management Services, airport shuttle service to and from Inc. notice advised that before final action Greater Pittsburgh Airport and was taken on the application, AGENCY: Surface Transportation Board. Allegheny County Airport; (3) consideration would be given to any Transportation Management Services, ACTION: Notice of filing of petition for relevant data, views, or arguments exemption. Inc., d/b/a Lenzner Coach Lines (MC– submitted in writing by any person in 237433), a Pennsylvania-based carrier, opposition to the recordation and SUMMARY: Coach USA, Inc. (Coach), a which is affiliated with Airlines received no later than September 22, noncarrier in control of 28 motor Transportation Company and which 1997. No responses were received in passenger carriers at the time it filed its operates charter motorcoach service, opposition to the notice. Accordingly, as 1 petition, seeks to be exempted, under contract service, sightseeing service and provided in section 133.14, Customs 49 U.S.C. 13541, from the prior approval tour service. Regulations (19 CFR 133.14), the name Coach reported, at the time it filed ‘‘IBBI,’’ is recorded as the trade name 1 this petition for exemption, that it Coach currently controls the nation’s second used by International Business to largest group of motor passenger carriers. See Coach controlled twenty-eight motor carriers of Business, Inc., a corporation organized USA, Inc.—Control Exemption—America Charters, passengers. Coach states that its Ltd., STB Finance Docket No. 33393 (STB served under the laws of Colorado, located at acquisition of control of the three motor Oct. 3, 1997), slip op. at 1. In addition to the instant 566 #D Nucla Way, Aurora, Colorado carriers through the acquisition of their petition, Coach has three other pending petitions: 80011. The trade name is used in Coach USA, Inc. and K-T Contract Services, Inc.— stock will not inhibit competition or connection with an item known as a key Control and Merger Exemption—Gray Line Tours of reduce transportation options available Southern Nevada, STB Finance Docket No. 33431 safe or lock and lockbox which has a to the public. Coach states that the three (STB served Aug. 22, 1997), in which it seeks an compartment in which keys are locked carriers do not compete with any Coach- exemption to acquire control of one additional and a shackle to attach to a door or motor passenger carrier, Coach USA, Inc., and owned carrier. Leisure Time Tours—Control and Merger Petitioner also claims that the doorknob. Exemption—Van Nortwick Bros., Inc., The Arrow EFFECTIVE DATE: November 14, 1997. Line, Inc., and Trentway-Wagar, Inc., STB Finance acquisition of control of the three Docket No. 33428 (STB served Aug. 12, 1997), in carriers will allow each carrier to offer FOR FURTHER INFORMATION CONTACT: Gina which it seeks to acquire control of three additional improved service at lower costs made D’Onofrio, Intellectual Property Rights motor passenger carriers, and Coach USA, Inc.— possible by the coordination of Branch, 1300 Pennsylvania Avenue, Control Exemption—Browder Tours, Inc. and El Expresso, Inc., STB Finance Docket No. 33506 (STB functions, centralized management, N.W. (Ronald Reagan Building), filed Oct. 31, 1997), in which it seeks to acquire financial support, rationalization of Washington, D.C. 20229, (202) 927– control of two additional motor passenger carriers. resources, and economies of scale that 2330. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61165

Dated: November 6, 1997. time. Documents postmarked by the due advancement of this principle both in John F. Atwood, date but received at a later date will not program administration and in program Chief, Intellectual Property Rights Branch. be accepted. It is anticipated that content. Please refer to the review [FR Doc. 97–29922 Filed 11–13–97; 8:45 am] program activities will begin criteria under the ‘Support for Diversity’ BILLING CODE 4820±02±P approximately in March, 1998. section for specific suggestions on FOR FURTHER INFORMATION CONTACT: incorporating diversity into the total The Advising, Teaching, and proposal. Public Law 104–319 provides UNITED STATES INFORMATION Specialized Programs Division, Room that ‘‘in carrying out programs of AGENCY 349, Office of Academic Programs, U.S. educational and cultural exchange in Information Agency, 302 4th Street, countries whose people do not fully Elementary-Level Teacher Education in S.W., Washington, D.C. 20547; or 202– enjoy freedom and democracy’’, USIA Armenia 619–6038 (telephone), 202–619–6790 ‘‘shall take appropriate steps to provide (telefax), or [email protected] (Internet) to opportunities for participation in such ACTION: Request for proposals. request a Solicitation Package programs to human rights and democracy leaders of such countries.’’ SUMMARY: The Office of Academic containing more detailed information and instructions. Please request Proposals should account for Programs of the United States advancement of this goal in their Information Agency’s Bureau of required application forms, and standard guidelines for preparing program contents, to the full extent Educational and Cultural Affairs deemed feasible. announces an open competition for an proposals, including specific criteria for assistance award. Public and private preparation of the proposal budget. SUPPLEMENTARY INFORMATION: To Download a Solicitation Package non-profit organizations meeting the Overview provisions described in IRS regulation via Internet: The entire Solicitation 26 CFR 1.501(c) may apply to develop Package may be downloaded from The objective of this project is to work an approximately two-year program to USIA’s website at http://www.usia.gov/ in partnership with the Armenian train a group of Armenian educators of education/rfps. Please read all Ministry of Education to update elementary level teachers, to develop a information before downloading. Armenian in-service and pre-service training for elementary-level teachers manual for elementary teacher To receive a Solicitation Package via (grades 1–4) by training a core team of education for use in Armenia, and to Fax on Demand: The entire Solicitation Armenian teacher educators and by assist the Armenian educators to pilot- Package may be received via the assisting them to develop a handbook test the manual in Armenia. Bureau’s ‘‘Grants Information Fax on Overall grant making authority for Demand System’’, which is accessed by on elementary education. The project will comprise three phases which are this program is contained in the Mutual calling 202/401–7616. Please request a describe in detail in the Project Educational and Cultural Exchange Act ‘‘Catalog’’ of available documents and Objectives, Goals, and Implementation of 1961, Public Law 87–256, as order numbers when first entering the (POGI). amended, also known as the Fulbright- system. Hays Act. The purpose of the Act is ‘‘to Please specify USIA Program Officer Participants Sally Kux on all inquiries and enable the Government of the United The Armenian team will consist of correspondences. Interested applicants States to increase mutual understanding approximately 6 educators representing should read the complete Federal between the people of the United States the general content areas of elementary Register announcement before sending and the people of other countries * * *; education in Armenia. These areas are inquiries or submitting proposals. Once to strengthen the ties which unite us mathematics, language (Armenian, the RFP deadline has passed, Agency with other nations by demonstrating the Russian, and English) natural science, staff may not discuss this competition in educational and cultural interests, arts, and physical education. Armenian any way with applicants until the developments, and achievements of the participants will be proficient in Bureau proposal review process has people of the United States and other English. nations * * * and thus to assist in the been completed. development of friendly, sympathetic Submissions: Applicants must follow Guidelines and peaceful relations between the all instructions given in the Solicitation Programs must comply with J–1 visa United States and the other countries of Package. The original and 10 copies of regulations. Please refer to program the world.’’ the application should be sent to: U.S. specific guidelines (POGI) in the The funding authority for the program Information Agency, Ref.: E/AS–98–02, Solicitation Package for further details. cited above is provided through the Office of Grants Management, E/XE, Freedom Support Act (FSA). Room 326, 301 4th Street, S.W., Proposed Budget Programs and projects must conform Washington, D.C. 20547. Applicants must submit a with Agency requirements and Diversity, Freedom and Democracy comprehensive line item budget based guidelines outlined in the Solicitation Guidelines: Pursuant to the Bureau’s on the specific guidance in the Package. USIA projects and programs authorizing legislation, programs must Solicitation Package. The award will not are subject to the availability of funds. maintain a non-political character and exceed $300,000. Administrative costs Announcement Title and Number: All should be balanced and representative may not exceed 25% of the total USIA- communications with USIA concerning of the diversity of American political, funded expenses. this RFP should refer to the social, and cultural life. ‘‘Diversity’’ Grants awarded to eligible announcement’s title and reference should be interpreted in the broadest organizations with less than four years number E/AS–98–02. sense to encompass differences of experience in conducting Deadline for Proposals: All copies including, but not limited to ethnicity, international exchange programs will be must be received at the U.S. Information race, gender, religion, geographic limited to $60,000. Please refer to the Agency by 5 p.m. Washington, D.C. time location, socio-economic status, and Solicitation Package for complete on Friday, January 16, 1998. Faxed physical challenges. Applicants are budget guidelines and formatting documents will not be accepted at any strongly encouraged to adhere to the instructions. 61166 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

Review Process 3. Ability To Achieve Program 8. Follow-on Activities Objectives USIA will acknowledge receipt of all Proposals should provide a plan for proposals and will review them for Objectives should be reasonable, continued follow-on activity (without technical eligibility. Proposals will be feasible, and flexible. Proposals should USIA support) to ensure ongoing deemed ineligible if they do not fully clearly demonstrate how the institution communication and involvement with adhere to the guidelines stated herein will meet the program objectives and Armenian teacher education projects. how continuous evaluation will be used and in the Solicitation Package. Eligible 9. Cost-Effectiveness and Cost-Sharing proposals will be forwarded to panels of to adjust program plans as needed. The overhead and administrative USIA officers for advisory review. All 4. Multiplier Effect/Impact eligible proposals will be reviewed by components of the proposal, including the program office, as well as the USIA Proposed programs should strengthen salaries and honoraria, should be kept Office of East European and NIS Affairs long-term mutual understanding, as low as possible. All other items and USIS Erevan. Proposals may be including maximum sharing of should be necessary and appropriate. reviewed by the Office of the General information and establishment of long- Proposals should maximize cost-sharing Counsel or by other Agency elements. term institutional and individual through other private sector support as Funding decisions are at the discretion linkages. well as institutional direct funding of the USIA Associate Director for 5. Support of Diversity contributions. Educational and Cultural Affairs. Final Proposals should demonstrate Notice technical authority for assistance substantive support of the Bureau’s awards (grants or cooperative The terms and conditions published policy on diversity. Achievable and agreements) resides with the USIA in this REP are binding and may not be relevant features should be cited in both grants officer. modified by any USIA representative. program administration (selection of Explanatory information provided by Review Criteria participants, program venue and the Agency that contradicts published program evaluation) and program language will not be binding. Issuance Technically eligible applications will content (orientation and wrap-up be competitively reviewed according to of the RFP does not constitute an award sessions, program meetings, resource commitment on the part of the the criteria stated below. These criteria materials and follow-up activities). are not rank ordered and all carry equal Government. The Agency reserves the weight in the proposal evaluation: 6. Institutional Capacity right to reduce, revise, or increase proposal budgets in accordance with the 1. Quality of the Program Idea Proposed personnel and institutional needs of the program and the resources should be adequate and availability of funds. Awards made will Proposals should exhibit originality, appropriate to achieve the program be subject to periodic reporting and substance, precision, relevance to goals. evaluation requirements. Agency mission, and responsiveness to the objectives and guidelines stated in 7. Institution’s Record/Ability Notification this solicitation. Proposals should Proposals should demonstrate an Final awards cannot be made until demonstrate substantive expertise. institutional record of successful funds have been appropriated by 2. Program Planning and Evaluation exchange programs, including Congress, allocated and committed responsible fiscal management and full through internal USIA procedures. Detailed agenda and work plan compliance with all reporting should demonstrate substantive requirements for past Agency grants as Dated: November 6, 1997. undertakings and logistical capacity and determined by USIA’s Office of Robert L. Earle, should adhere to the program overview Contracts. The Agency will consider the Deputy Associate Director for Educational and guidelines stated above. Proposals past performance of prior recipients and and Cultural Affairs. should include a plan for continuous the demonstrated potential of new [FR Doc. 97–29913 Filed 11–13–97; 8:45 am] and summative evaluations. applicants. BILLING CODE 8230±01±M 61167

Corrections Federal Register Vol. 62, No. 220

Friday, November 14, 1997

This section of the FEDERAL REGISTER contains editorial corrections of previously published Presidential, Rule, Proposed Rule, and Notice documents. These corrections are prepared by the Office of the Federal Register. Agency prepared corrections are issued as signed documents and appear in the appropriate document categories elsewhere in the issue.

DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket No. TB-97-15]

Notice of Request for Extension and Revision of a Currently Approved Information Collection Correction In notice document 97–29314 appearing on page 59846, in the issue of Wednesday, November 5, 1997, make the following correction: On page 59846, in the first column, in the DATES section, in the second line, ‘‘January 5, 1997’’ should read ‘‘January 5, 1998’’. BILLING CODE 1505-01-D

DEPARTMENT OF JUSTICE Immigration and Naturalization Service [INS No. 1877-97; AG Order No. 2125-97] RIN 1115-AE26

Designation of Sierra Leone Under Temporary Protected Status Correction In notice document 97–29078 beginning on page 59736, in the issue of Tuesday, November 4, 1997, make the following correction: On page 59737, in the first column, in the paragraph designated (3), in the last line, ‘‘November 13, 1998’’ should read ‘‘November 3, 1998’’. BILLING CODE 1505-01-D federal register November 14,1997 Friday Management Program; FinalRule Revisions toStateHazardousWaste Michigan: FinalAuthorizationof Environmental Agencies;FinalRule From theReorganizationofMichigan Section 404PermittingProgramResulting Assumed ProgramToAdministerthe Approval ofModificationstoMichigan's Environmental Agencies;FinalRule From theReorganizationofMichigan System PermittingProgramResulting National PollutantDischargeElimination Approved ProgramToAdministerthe Approval ofModificationstoMichigan's 40 CFRParts123,233,and271 Protection Agency Environmental Part II 61169 61170 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION such revisions are substantial and to Order 1995–18, which inter alia, AGENCY approve or disapprove any such elevated the former Environmental revisions. Protection Bureau of the MDNR to full 40 CFR Part 123 The Michigan Water Resources independent departmental status called Commission (MWRC) was the name of the Michigan Department of [FRL±5918±6] the agency authorized to administer the Environmental Quality (MDEQ). The Approval of Modifications to NPDES program in Michigan on October MDEQ retained all of its responsibilities Michigan's Approved Program To 17, 1973. On November 8, 1991, the and virtually all of its personnel Administer the National Pollutant Governor of Michigan issued Executive assigned to it as a bureau in the MDNR. Discharge Elimination System Order 1991–31, which reorganized and The Attorney General of the State of Permitting Program Resulting From consolidated Michigan’s environmental Michigan, in a statement dated June 13, the Reorganization of the Michigan agencies. Though initially stayed in the 1996, certified to the following: Environmental Agencies Michigan court system, the Michigan It is my opinion that E.O. 1995–18 did not Supreme Court ultimately upheld the substantively change the State’s statutes or AGENCY: Environmental Protection validity of Executive Order 1991–31 on rules relating to the administration of Agency (EPA). September 2, 1993. Dodak v. Engler, 443 federally delegated programs nor was any ACTION: Notice of approval. Mich. 560, 506 N.W.2d 190 (1993). authority, power, duty or function contained Pursuant to Executive Order 1991–31, within Michigan’s statutes or rules applicable SUMMARY: Notice is hereby given that all of MWRC’s authority, powers, duties, to federally delegated programs diminished the Environmental Protection Agency functions and responsibilities pertaining by the execution of E.O. 1995–18. (EPA) approves of the modifications of to Michigan’s NPDES program were Specifically, E.O. 1995–18 did not affect Michigan’s approved National Pollutant transferred to the Director of the program jurisdiction, the scope of activities regulated, criteria for the review of permits, Discharge Elimination System (NPDES) Michigan Department of Natural public participation, enforcement capabilities permitting program which resulted from Resources (MDNR), except that or the adequacy of Michigan’s legal authority certain Michigan Executive Orders adjudicatory authority and authority to to carry out its federally delegated programs. which reorganized Michigan’s conduct contested case hearings were Based upon a review of this environmental agencies. transferred to the Michigan Natural information, as well as a review of the Resources Commission (MNRC). EFFECTIVE DATE: Consistent with 40 CFR NPDES program documents submitted Executive Order 1995–4 then transferred 123.62(b)(4), this action is effective in support of Michigan’s original (1973) all MNRC authority to make decisions November 14, 1997. In accordance with request for EPA approval, EPA regarding administrative appeals of 40 CFR 23.2, EPA explicitly provides preliminarily concluded on March 28, surface water permit applications to the that this action shall be considered 1997, that the Executive Orders did not MDNR Office of Administrative issued for the purposes of judicial substantially revise the State of Hearings. The Attorney General of the review November 14, 1997, at 1 p.m. Michigan’s Section 402 NPDES State of Michigan, in a statement dated eastern daylight time. Under section permitting program and that any August 2, 1995, certified to the 509(b)(1) of the Clean Water Act, revisions resulting from the executive following: judicial review of this action can be orders should be approved. This obtained only by filing a petition for Executive Order Nos. 1991–31 and 1995– conclusion was based on two factors. review in the United States Court of 4 and the Governor and Director’s letter First, none of the statutes or rules Appeals within 120 days after it is dated February 3, 1995 do not change the upon which EPA authorized Michigan’s State’s statutes or rules which provide considered issued for the purposes of NPDES permitting program changed as judicial review. adequate authority to the State of Michigan to carry out the program set forth in Governor a result of the Executive Orders. Instead, FOR FURTHER INFORMATION CONTACT: William G. Milliken’s ‘‘Program Description’’ the Executive Orders simply changed Eugene Chaiken, Chief, NPDES Support dated July 17, 1973. In fact, State statutes and the people or entities responsible for and Technical Assistance Branch, Water rules are essentially unaffected by these carrying out the various functions set Division, U.S. Environmental Protection Executive Orders and letter. The only way in forth within these statutes and rules. Agency, 77 West Jackson Boulevard, which the statutes and rules are affected is Second, as described in the October Chicago, Illinois 60604 (312) 886–0120. by changing the person or entity responsible 24, 1996, letter from MDEQ to EPA, the for carrying out the various functions set Director of MDEQ has ‘‘directed that any SUPPLEMENTARY INFORMATION: forth within these statutes and rules. This type of reorganization of functions is MDEQ staff not in compliance with the Note: This action is one of four Federal consistent with the Constitution of Michigan federal requirements [governing conflict Register actions related to reorganization of of 1963, Article V, Section II. of interest set forth at 40 CFR 123.45(c)] state environmental agencies in Michigan. No authority, power, duties and functions are not permitted to approve permits, All these actions are published together in contained within Michigan’s statutes or rules this Federal Register, with the exception of nor any portion of permits.’’ Moreover, applicable to the NPDES program have been a Clean Air Act State Implementation Plan this directive will be incorporated into eliminated or changed except for the party published on November 6, 1997 at 62 FR MDEQ’s internal delegation letters and responsible for carrying out such authority, 59995. department policies. Finally, the powers, duties and functions. Accordingly, Director of MDEQ will require all I. Background in my opinion, the laws of the State of Michigan continue to provide adequate individuals that he appoints to decide On October 17, 1973, EPA approved authority to carry out the program set forth administrative appeals of NPDES the NPDES permitting program in the ‘‘Program Description’’ submitted by permits to certify that they comply with submitted by the State of Michigan Governor William G. Milliken on July 17, the CWA conflict of interest pursuant to section 402 of the Clean 1973. The adequacy of this legal authority is requirements. Consequently, Michigan’s Water Act. Procedures for revision of unaffected by Executive Order Nos. 1991–31, NPDES program assures compliance State programs at 40 CFR 123.62 1995–4 and the Governor and Director’s letter with conflict of interest requirements for provide for EPA review of any revisions dated February 3, 1995. NPDES state programs. to federally authorized State NPDES On July 31, 1995, Michigan’s While not required to do so according programs to determine whether or not Governor John Engler signed Executive to the State NPDES program regulations, Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61171

EPA chose to invite public comment comments which were jointly submitted a public hearing, EPA did provide an concerning the Agency’s preliminary by the National Wildlife Federation and opportunity for public comment in this determinations. Consequently, on the Michigan United Conservation matter (and this notice responds to March 28, 1997, EPA published a notice Clubs (NWF and MUCC). NWF and those comments) and an opportunity for in the Federal Register of its MUCC argue that ‘‘EPA’s 1993 approval the public to request a public hearing preliminary determinations that the of Michigan’s General Permit Program (although MWF and MUCC did not Executive Orders caused no substantial was illegal’’ because, prior to approving specifically request a public hearing in revisions to Michigan’s NPDES program of Michigan’s General Permit Program, this matter). As described below, EPA and that any revisions to Michigan’s EPA allegedly violated its own does not believe that a public hearing is NPDES program that resulted from the regulations and past practices ‘‘(1) by necessary based upon the comments Executive Orders should be approved. failing to have a complete State program received. Additionally, EPA requested specific submission before approving Michigan’s NWF and MUCC also raised a number comment on the impact, if any, the General Permit Program; (2) by failing to of comments in which they claim that Executive Orders have on EPA approval provide public notice of and comment EPA has not fulfilled certain of the modification to the Michigan on the proposed approval; and (3) by commitments it allegedly made in its NPDES program recognizing the State’s failing to hold a public hearing.’’ August 16, 1994 ‘‘Unopposed Motion to authority to issue general permits. EPA EPA believes that allegations about Stay Briefing’’ and in subsequent status also indicated that it could conduct a the unlawfulness of previous agency reports filed in National Wildlife public hearing, if there was significant actions are not relevant to a pending Federation et al. v. Browner, et al., No. public interest based on requests agency matter, except to the extent that 94–3309, a case which is currently received. Finally, EPA stated that its EPA proposes to take allegedly unlawful pending in the United States Court of preliminary decision only addressed, actions in the pending agency matter. In Appeals for the 6th Circuit. NWF and and EPA was only seeking comment on, response to the first allegation of MUCC argue that, because the Agency the impact of the Executive Orders on unlawful action, EPA continues to notified the 6th Circuit that today’s Michigan’s NPDES program. believe that neither the CWA nor notice and comment proceedings might NPDES State program regulations resolve NWF’s and MUCC’s concerns, II. Comments require comprehensive review and and because NWF and MUCC believe In response to the March 28, 1997, ‘‘reapproval’’ of the entire underlying the proceedings do not address their notice, EPA received comments from NPDES program each time the Agency concerns, EPA has failed to fulfill a the Scio Residents for Safe Water and approves a modification to such a commitment it made to the court. EPA the Gelman Sciences Site Citizens program. EPA regulations establish disagrees that it has failed to fulfill its Review Committee (‘‘Scio Residents’’). procedures for identification (both by commitment to the 6th Circuit. EPA The Scio Residents allege that the EPA and interested persons) and review explained to the court that these individuals at MDEQ who are now of any allegation of failure by a State to proceedings might resolve NWF’s and responsible for making permitting comply with NPDES State program MUCC’s concerns. EPA’s inability to decisions have ‘‘compromised requirements. See 40 CFR 123.64(b)(1). satisfy NWF’s and MUCC’s concerns is independence,’’ a ‘‘pro business In the specific matter currently before not ‘‘failure’’ of the Agency, but merely agenda,’’ and are attempting to the Agency, namely, the effect of the continuing disagreement between EPA ‘‘implement[] blatantly anti- Executive Orders on the Michigan’s and the two groups. Based on environmental policies without program, the Agency believes that comprehensive review of Michigan’s substantive public involvement or comprehensive review and public participation procedures (a copy notice.’’ However, as noted above, none ‘‘reapproval’’ is unnecessary. See of which is included in the of the statutes or rules upon which EPA National Wildlife Federation v. administrative record for today’s authorized Michigan’s NPDES Adamkus, 936 F.Supp. 435, 440–41, 444 action), as well as review of the conflict permitting program changed as a result (W.D. Mich. 1996) (upholding EPA’s of interest provisions applicable to of the Executive Orders and so Michigan decision, in interpreting comparable States authorized to administer the continues to have the legal authority statutory and regulatory provisions NPDES program, the Agency believes and obligation to issue NPDES permits pertaining to EPA’s review of revisions that the Michigan program satisfies the which are consistent with the Clean to State Section 404 wetland permitting applicable public participation and Water Act. The fact that there may be programs, that EPA need not perform a conflict of interest requirements. different people—with allegedly comprehensive review of an entire NWF’s and MUCC’s final comment ‘‘compromised independence’’ or underlying State program when was that EPA should not approve of the different ‘‘agendas’’ or ‘‘policies’’—who approving a modification to such revisions resulting from the Executive are responsible for exercising that program). Instead, as was made clear in Orders because ‘‘the primary decision authority and fulfilling that obligation the March 28, 1997, notice, the issues in maker in contested case proceedings, as a result of the Executive Orders is not the present matter are: (1) Whether the the Director of the [MDEQ], has engaged a basis for disapproving of any revisions Executive Orders caused substantial in illegal ex parte communications resulting from those Executive Orders. revisions to Michigan’s NPDES program; about a contested case currently Of course, EPA would have the (2) whether any revisions to Michigan’s pending a decision,’’ allegedly in authority to withdraw program approval NPDES program that resulted from the violation of 40 CFR 124.78(b)(1). NWF pursuant to 40 CFR 123.63 if, as a result Executive Orders should be approved; and MUCC also argue that the Michigan of any changes caused by the Executive and (3) whether the Executive Orders Attorney General had an obligation to Orders, Michigan repeatedly issues have had any impact on EPA approval certify that the laws of Michigan are NPDES permits which do not conform of the modification to the Michigan adequate to prohibit such ex parte with the requirements of the Clean NPDES program recognizing the State’s communications. However, the Water Act. However, that is not at issue authority to issue general permits. prohibition on ex parte communications in this matter. On the other two issues identified by at 40 CFR 124.78(b)(1) applies only to In addition to the comments from the the commentors, the opportunity for EPA and to proceedings before EPA. Scio Residents, EPA also received public comment and the opportunity for Nothing in EPA’s NPDES State program 61172 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations regulations at 40 CFR part 123 requires this proceeding does not express any in the aggregate, or the private sector in that States authorized to administer the viewpoint on those questions. any one year. Therefore, this NPDES program prohibit such ex parte determination is not subject to the III. Regulatory Assessment communications. Consequently, the requirements of section 202 of the Requirements allegation that the Director of MDEQ UMRA. might be engaging in ex parte A. Executive Order 12866 Before EPA establishes any regulatory communications about a contested case, Under Executive Order 12866 (58 FR requirements that may significantly or or the concern that the Michigan 51735; October 4, 1993), the Agency uniquely affect small governments, Attorney General has not certified that must determine whether a regulatory including tribal governments, it must the laws of Michigan adequately action is ‘‘significant’’ and therefore have developed under section 203 of the prohibit such ex parte communications, subject to OMB review and the UMRA a small government agency plan. are not sufficient bases for disapproving requirements of the Executive Order. The plan must provide for notifying of any revisions to Michigan’s NPDES The Order defines ‘‘significant potentially affected small governments, program resulting from the Executive regulatory action’’ as one that is likely enabling officials of affected small Orders. to result in a rule that may: governments to have meaningful and The Scio Residents requested that (1) Have an annual effect on the timely input in the development of EPA EPA provide a public hearing on this economy of $100 million or more, or regulatory proposals with significant matter. NWF and MUCC did not adversely affect in a material way the Federal intergovernmental mandates, specifically request a public hearing in economy, a sector of the economy, and informing, educating, and advising this matter (although, as noted above, productivity, competition, jobs, the small governments on compliance with NWF and MUCC did criticize EPA for environment, public health or safety, or the regulatory requirements. Because not holding a public hearing in 1993 State, local, or tribal governments or EPA’s determination to approve of any prior to approving of Michigan’s communities; revisions to Michigan’s NPDES program General Permit Program). EPA is (2) Create a serious inconsistency or resulting from the Executive Orders required to hold a public hearing under otherwise interfere with an action taken merely recognizes an internal 40 CFR 123.62(b)(2) if a proposed or planned by another agency; reorganization of an existing approved revision is substantial and if there is (3) Materially alter the budgetary NPDES State program, EPA’s significant public interest in holding a impact of entitlements, grants, user fees, determination contains no regulatory hearing based upon requests for a or loan programs or the rights and requirements that might significantly or hearing received by EPA. obligations of recipients thereof; or uniquely affect small governments. As noted above, EPA has determined (4) Raise novel legal or policy issues C. Regulatory Flexibility Act that none of the statutes or rules upon arising out of legal mandates, the which EPA authorized Michigan’s President’s priorities, or the principles The Regulatory Flexibility Act (RFA) NPDES permitting program changed as set forth in the Executive Order. provides that, whenever an agency a result of the Executive Orders. Instead, The Office of Management and Budget promulgates a final rule under 5 U.S.C. the Executive Orders simply changed (OMB) has waived review of EPA action 553, after being required to publish a the people or entities responsible for on State NPDES programs . general notice of proposed rulemaking, carrying out the various functions set an agency must prepare a final forth within these statutes and rules. B. Unfunded Mandates Reform Act regulatory flexibility analysis unless the Consequently, EPA does not believe that Title II of the Unfunded Mandates head of the agency certifies that the final the revisions to Michigan’s NPDES Reform Act of 1995 (UMRA), P.L. 104– rule will not have a significant program resulting from the Executive 4, establishes requirements for Federal economic impact on a substantial Orders are substantial. Moreover, EPA agencies to assess the effects of their number of small entities. 5 U.S.C. 604 only received two sets of comments: one regulatory actions on State, local, and & 605. The Regional Administrator set from the Scio Residents and a tribal governments and the private today certifies, pursuant to section second set that was jointly submitted by sector. Under section 202 of the UMRA, 605(b) of the RFA, that approval of any NWF and MUCC; and only the Scio EPA generally must prepare a written revisions to Michigan’s NPDES program Residents specifically requested a statement, including a cost-benefit resulting from the Executive Orders will hearing. Thus, EPA does not believe that analysis, for proposed and final rules not have a significant impact on a there is sufficient public interest in this with ‘‘Federal mandates’’ that may substantial number of small entities. matter to hold a public hearing. Finally, result in expenditures to State, local, The basis for the certification is that neither set of comments explained why and tribal governments, in the aggregate, EPA’s approval simply results in an a public hearing was necessary or would or to the private sector, of $100 million administrative change in the structure of be helpful in resolving the question of or more in any one year. the approved NPDES program, rather whether EPA should approve of any EPA’s approval of any revisions to than a change in the substantive revisions to Michigan’s NPDES program Michigan’s NPDES program resulting requirements imposed on any small resulting from the Executive Orders. from the Executive Orders contains no entity in the State of Michigan. This Consequently, EPA is not providing for Federal mandates (under the regulatory approval will not affect the substantive a public hearing. provisions of Title II of the UMRA) for regulatory requirements under existing Finally, EPA notes that the Michigan State, local, or tribal governments or the State law to which small entities are Environmental Council (MEC), in a private sector. Instead, EPA’s already subject. Additionally, approval letter to EPA dated June 14, 1996, raised determination merely recognizes an of the NPDES program modification will questions regarding the impact of internal reorganization of an existing not impose any new burdens on small Michigan Public Act 132 of 1996 on approved NPDES State program; and entities. Michigan’s NPDES program. EPA is this determination does not contain any D. Paperwork Reduction Act addressing those questions separately Federal mandate that may result in and EPA’s approval of the modifications expenditures of $100 million or more This approval contains no requests for resulting from the Executive Orders in for State, local, and tribal governments, information and consequently is not Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61173 subject to the Paperwork Reduction Act, 1984. Procedures for revision of State statutes or rules which comprise 44 U.S.C. 3501 et seq. programs at 40 CFR 233.16 require that Michigan’s Section 404 program EPA review any revisions to state changed as a result of the Executive IV. EPA’s Final Determination assumed Section 404 programs, Order and MDEQ retained virtually all EPA, after review and consideration determine whether such revisions are of the personnel formerly assigned to it of all the information submitted by substantial, and approve or disapprove as a bureau in MDNR. Michigan and the comments received, the revisions. Although none of the statutes or has determined that the revisions to On November 25, 1994, EPA regulations which comprise Michigan’s Michigan’s NPDES program resulting approved of revisions to Michigan’s program changed, there was one from the Executive Orders should be Section 404 program resulting from additional matter that EPA considered approved. Moreover, EPA has Executive Order 1991–31, which before making its preliminary determined that the revisions are not transferred the responsibilities and determination. Specifically, the substantial. authorities of the Michigan Department Executive Order provides that the Dated: October 1, 1997. of Natural Resources (MDNR) to the Director of MDEQ now decides administrative appeals of wetland David A. Ullrich, Director of a new MDNR. On July 3, permitting decisions, rather than the Acting Regional Administrator. 1995, Michigan Governor John Engler signed Executive Order 1995–18 Michigan Natural Resources [FR Doc. 97–29622 Filed 11–13–97; 8:45 am] (Executive Order), which elevated the Commission. However, this change does BILLING CODE 6560±50±P former Environmental Protection not affect the Michigan Section 404 Bureau of MDNR to full departmental program’s ‘‘area of jurisdiction, scope of status as the Michigan Department of activities regulated, criteria for review of ENVIRONMENTAL PROTECTION permits, public participation, or AGENCY Environmental Quality (MDEQ), effective October 1, 1995. MDEQ enforcement capability.’’ 40 CFR 40 CFR Part 233 retained all of its environmental duties, 233.16(d)(3). Consequently, EPA did not functions and responsibilities and view this change to be a substantial [FRL±5918±7] virtually all of the personnel formerly revision. Moreover, EPA preliminarily assigned to it as a bureau in the MDNR. concluded that this revision should be Approval of Modifications to approved because it is not inconsistent Michigan's Assumed Program To In addition, certain other environmental duties, functions and responsibilities of with anything in the Clean Water Act or Administer the Section 404 Permitting its implementing regulations. Program Resulting From the the Law, Geographical Survey and Land and Water Management Divisions were While not required to do so according Reorganization of the Michigan to the State Section 404 program Environmental Agencies transferred to MDEQ, as was the authority to make decisions regarding regulations, EPA chose to invite public comment concerning the Agency’s AGENCY: Environmental Protection administrative appeals in those matters preliminary determinations. Agency (EPA). under its purview. Consequently, on March 28, 1997, EPA ACTION: Notice of approval. The Attorney General, in a statement dated June 13, 1996, statement, certified published a notice in the Federal SUMMARY: Notice is hereby given that to the following: Register of its preliminary determinations that the Executive Order the United States Environmental It is my opinion that E.O. 1995–18 did not Protection Agency (EPA) approves of caused no substantial revisions to substantively change the state’s statutes or Michigan’s Section 404 program and the modifications of Michigan’s rules relating to the administration of assumed Clean Water Act Section 404 federally delegated programs nor was any that any revisions to Michigan’s Section (Section 404) permitting program which authority, power, duty or function contained 404 program that resulted from the resulted from Michigan Executive Order within Michigan’s statutes or rules applicable Executive Order should be approved. 1995–18 which reorganized Michigan’s to federally delegated programs diminished EPA also indicated that it might conduct environmental agencies. by the execution of E.O. 1995–18. a public hearing, if there was significant Specifically, E.O. 1995–18 did not affect public interest based on requests EFFECTIVE DATE: November 14, 1997. program jurisdiction, the scope of activities received. Finally, EPA stated that its FOR FURTHER INFORMATION CONTACT: regulated, criteria for the review of permits, preliminary decision only addressed, Kevin Pierard, Chief, Watersheds and public participation, enforcement capabilities and EPA was only seeking comment on, Non-Point Source Programs Branch, or the adequacy of Michigan’s legal authority the impact of the Executive Order on to carry out its federally delegated programs. Water Division, U.S. Environmental Michigan’s Section 404 program. Protection Agency, 77 West Jackson Based upon a review of this Boulevard, Chicago, Illinois 60604, information, as well as a review of the II. Comments (312) 886–4448. Section 404 program documents In response to the March 28, 1997, submitted in support of Michigan’s notice, EPA received comments from SUPPLEMENTARY INFORMATION: original (1983) request for EPA approval three commenters: the Tip of the Mitt Note: This action is one of four Federal and the materials submitted by Watershed Council, the East Michigan Register actions related to reorganization of Michigan and considered by EPA in Environmental Action Council, and the state environmental agencies in Michigan. approving of revisions to Michigan’s Michigan Environmental Council. The All these actions are published together in Section 404 program on November 25, commenters all raised the same two the Federal Register, with the exception of a Clean Air Act State Implementation Plan 1994, EPA preliminarily concluded that issues. First, the commenters noted that published on November 6, 1997 at 62 FR the Executive Order did not the Executive Order transferred 59995. substantially revise the State of authority to hold hearings and make Michigan’s Section 404 program and findings of fact and render decisions on I. Background that any revisions resulting from the contested Section 404 permits from the The State of Michigan assumed Executive Order should be approved. Natural Resources Commission, a public Federal Clean Water Act Section 404 This preliminary determination was body that was subject to Michigan’s permitting authority on October 16, based upon the fact that none of the Open Meetings Act, to the Director of 61174 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations the MDEQ, who in turn delegated that that the Chief Administrative Law Judge Director will be required to sign a authority to the MDEQ Office of may not be entirely independent of the ‘‘Conflict of Interest Certification’’ Administrative Hearings, an entity that Director of the MDEQ is not a basis for certifying that they ‘‘do not now receive, is not a public body and therefore is not disapproving of the revisions resulting nor have ever received, any income subject to Michigan’s Open Meetings from the Executive Order. directly or indirectly from any person Act. Of course, if as a result of the changes who holds a permit, has applied for a The public participation requirements to the administrative appeals process permit, or who is subject to an for state Section 404 programs are set resulting from the Executive Order, enforcement order issued pursuant to or forth at 40 CFR 233.32–34. The only Michigan repeatedly issues Section 404 under the authority of [the Clean Water ‘‘Open Meetings Act’’ type requirements permits which do not conform with the Act].’’ Consequently, the possibility that in those regulations is at 40 CFR 233.33, requirements of the Clean Water Act, an appointed decisionmaker might have which requires that state Section 404 this might serve as a basis for a financial conflict of interest is programs provide an opportunity for withdrawal of Michigan’s Section 404 extremely remote. public hearings at which the public program under 40 CFR 233.53. EPA Finally, all three commenters stated must be allowed an opportunity to notes that it currently has pending that they believed that the revisions submit oral and written statements or before it a February 4, 1997, petition to resulting from the Executive Order were data concerning a permit application or withdraw Michigan’s Section 404 substantial and so requested a public draft general permit. Michigan clearly program that was filed by the Michigan hearing. EPA is required to provide an continues to comply with this Environmental Council (MEC) which opportunity for a public hearing under requirement. See Section 281.708 of the alleges, among other things, that 40 CFR 233.16(d)(3) if a proposed Michigan Compiled Laws. Nothing in Michigan is in fact repeatedly issuing revision is substantial. 40 CFR the state Section 404 wetland program such permits in part because of the 233.16(d)(3) provides that ‘‘substantial regulations requires that adjudicatory changes to the administrative appeals revisions include, but are not limited to, hearings on contested permits be open process. EPA is separately investigating revisions that affect the area of to the public. Consequently, the fact that the allegations in that petition to jurisdiction, scope of activities these types of hearings may not determine whether cause exists to regulated, criteria for review of permits, necessarily be open to the general commence withdrawal proceedings. public participation, or enforcement public in Michigan is not a basis for EPA, in approving of the revisions to capability.’’ As described above, none of disapproving of the revisions resulting Michigan’s Section 404 program the statutes or rules upon which EPA from the Executive Order. resulting from the Executive Order, is in authorized Michigan’s Section 404 We further note that Michigan did not no way expressing any opinion on the program changed as a result of the represent in its original 1983 program question of whether withdrawal Executive Order. Instead, the Executive submission, and EPA in reviewing and proceedings should commence in light Order simply changed the people or approving of that original program of the allegations in the MEC petition. entities responsible for carrying out the submission did not find, that Michigan Moreover, EPA is not expressing any various functions set forth within these was relying on the Michigan Open opinion on questions which MEC statutes and rules. Consequently, EPA Meetings Act to demonstrate that it had separately raised in a letter dated June does not believe that the revisions to authority to comply with the federal 14, 1996, regarding the impact of Michigan’s Section 404 program public participation requirements. Michigan’s Public Act 132 of 1996 on resulting from the Executive Order are Rather, Michigan cited to Sections 8 and Michigan’s Section 404 program. substantial. 10 of its Wetlands Protection Act, Instead, EPA is addressing those Moreover, in light of the fact that EPA Section 5 of its Water Resources Act, questions separately. only received three sets of comments Section 6 of its Inland Lakes and In a related comment, one commenter which addressed virtually identical Streams Act, and Sections 41–42 of its argued that, under the Executive Order, issues, EPA does not believe that there Administrative Procedures Act, to the Director may ‘‘appoint an individual is sufficient public interest in this demonstrate that it had such authority. within or outside the [MDEQ]’’ to matter to hold a public hearing. Finally, None of these statutory provisions were decide certain administrative appeals in none of the comments explained why a affected by the Executive Order. which the Director has been involved. public hearing was necessary or would Consequently, any changes resulting The commenter also noted that there is be helpful in resolving the question of from the Executive Order pertaining to no statutory definition of the whether EPA should approve of any the applicability or inapplicability of individuals eligible for service in this revisions to Michigan’s Section 404 the Michigan Open Meetings Act do not role and so ‘‘it is conceivable that an in any way constitute changes in individual with a personal or financial program. Consequently, EPA is not Michigan’s approved Section 404 interest in the project at issue could be providing for a public hearing. program. appointed to decide an appeal.’’ III. Regulatory Assessment The second issue raised by the However, in contrast to 40 CFR Requirements commenters is that, under the Executive 123.25(c), there is nothing in either the Order, the Chief Administrative Law Clean Water Act or in EPA’s A. Executive Order 12866 Judge for the Office of Administrative implementing regulations governing Under Executive Order 12866 (58 FR Hearings who decides certain contested conflicts of interest in state Section 404 51735; October 4, 1993), the Agency Section 404 permits is appointed by the programs. Consequently, the possibility must determine whether a regulatory Director of the MDEQ and so allegedly that such a conflict could arise is not a action is ‘‘significant’’ and therefore will not be capable of exercising sufficient basis to disapprove of the subject to OMB review and the decisionmaking authority independent revisions to Michigan’s Section 404 requirements of the Executive Order. of the Director of the MDEQ. However, program resulting from the Executive The Order defines ‘‘significant there is nothing in the state Section 404 Order. Moreover, although not regulatory action’’ as one that is likely program regulations pertaining to necessary to our decision, we note that to result in a rule that may: administrative appeals of permit Michigan has represented to EPA that (1) Have an annual effect on the decisions. Consequently, the possibility all decisionmakers appointed by the economy of $100 million or more, or Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61175 adversely affect in a material way the Federal intergovernmental mandates, Dated: October 1, 1997. economy, a sector of the economy, and informing, educating, and advising David A. Ullrich, productivity, competition, jobs, the small governments on compliance with Acting Regional Administrator. environment, public health or safety, or the regulatory requirements. Because [FR Doc. 97–29623 Filed 11–13–97; 8:45 am] State, local, or tribal governments or EPA’s determination to approve of any BILLING CODE 6560±50±P communities; revisions to Michigan’s Section 404 (2) Create a serious inconsistency or program resulting from the Executive otherwise interfere with an action taken Order merely recognizes an internal ENVIRONMENTAL PROTECTION or planned by another agency; reorganization of an existing assumed AGENCY (3) Materially alter the budgetary State Section 404 program, EPA’s impact of entitlements, grants, user fees, 40 CFR Part 271 or loan programs or the rights and determination contains no regulatory obligations of recipients thereof; or requirements that might significantly or [FRL±5918±8] (4) Raise novel legal or policy issues uniquely affect small governments. Michigan: Final Authorization of arising out of legal mandates, the C. Regulatory Flexibility Act Revisions to State Hazardous Waste President’s priorities, or the principles Management Program set forth in the Executive Order. The Regulatory Flexibility Act (RFA) The Office of Management and Budget provides that, whenever an agency AGENCY: Environmental Protection (OMB) has exempted EPA action on promulgates a final rule under 5 U.S.C. Agency. State Section 404 programs from OMB 553, after being required to publish a ACTION: Notice of final determination on review. general notice of proposed rulemaking, application of Michigan for final B. Unfunded Mandates Reform Act an agency must prepare a final authorization. Title II of the Unfunded Mandates regulatory flexibility analysis unless the head of the agency certifies that the final SUMMARY: Notice is hereby given that Reform Act of 1995 (UMRA), P.L. 104– the United States Environmental 4, establishes requirements for Federal rule will not have a significant economic impact on a substantial Protection Agency (U.S. EPA) approves agencies to assess the effects of their the revisions to the State of Michigan’s number of small entities. 5 U.S.C. 604 regulatory actions on State, local, and authorized hazardous waste & 605. The Regional Administrator tribal governments and the private management program resulting from sector. Under section 202 of the UMRA, today certifies, pursuant to section Michigan Executive Order 1995–18. EPA generally must prepare a written 605(b) of the RFA, that approval of any EFFECTIVE DATE: November 14, 1997. statement, including a cost-benefit revisions to Michigan’s Section 404 analysis, for proposed and final rules program resulting from the Executive FOR FURTHER INFORMATION CONTACT: Mr. with ‘‘Federal mandates’’ that may Order will not have a significant impact Timothy O’Malley, U.S. EPA, State result in expenditures to State, local, on a substantial number of small Programs and Authorization Section, and tribal governments, in the aggregate, entities. Waste Pesticides and Toxics Division, or to the private sector, of $100 million 77 W. Jackson Blvd. (DR–7J), Chicago, The basis for the certification is that or more in any one year. Illinois 60604, or telephone (312) 886– EPA’s approval of any revisions to EPA’s approval simply results in an 6085. administrative change in the structure of Michigan’s Section 404 program SUPPLEMENTARY INFORMATION: resulting from the Executive Order the assumed Section 404 program, contains no Federal mandates (under rather than a change in the substantive Note: This action is one of four Federal the regulatory provisions of Title II of requirements imposed on any small Register actions related to reorganization of state environmental agencies in Michigan. the UMRA) for State, local, or tribal entity in the State of Michigan. This approval will not affect the substantive All these actions are published together in governments or the private sector. this Federal Register, with the exception of Instead, EPA’s determination merely regulatory requirements under existing a Clean Air Act State Implementation Plan recognizes an internal reorganization of State law to which small entities are published on November 6, 1997 at 62 FR an existing approved Section 404 State already subject. Additionally, approval 59995. program; and this determination does of the Section 404 program modification A. Background not contain any Federal mandate that will not impose any new burdens on may result in expenditures of $100 small entities. On March 28, 1997, EPA published in million or more for State, local, and the Federal Register a notice tribal governments, in the aggregate, or D. Paperwork Reduction Act announcing the preliminary the private sector in any one year. This approval contains no requests for determination to approve the State of Therefore, this determination is not information and consequently is not Michigan’s hazardous waste subject to the requirements of section subject to the Paperwork Reduction Act, management program, as revised, pursuant to Section 3006(b) of the 202 of the UMRA. 44 U.S.C. 3501 et seq. Before EPA establishes any regulatory Resource Conservation and Recovery requirements that may significantly or IV. EPA’s Final Determination Act (RCRA) and 40 CFR 271.21(b)(4). uniquely affect small governments, States with final authorization under including tribal governments, it must EPA, after review and consideration Section 3006(b) of RCRA, 42 U.S.C. have developed under section 203 of the of all the information submitted by 6929(b) have a continuing obligation to UMRA a small government agency plan. Michigan and the comments received, maintain a hazardous waste program The plan must provide for notifying has determined that the revisions to that is equivalent to, consistent with, potentially affected small governments, Michigan’s Section 404 program and no less stringent than the Federal enabling officials of affected small resulting from the Executive Order hazardous waste management program. governments to have meaningful and should be approved. Moreover, EPA has When either EPA’s or a State program’s timely input in the development of EPA determined that the revisions are not controlling statutory or regulatory regulatory proposals with significant substantial. authority is modified or supplemented, 61176 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations or when certain other changes occur, Attorney General explained that the (NPDES) and Prevention of Significant revisions to State hazardous waste effect of EO 1995–18 was to elevate the Deterioration (PSD) program approvals, management programs may be former Environmental Protection not grant additional program necessary. The procedures that States Bureau of the Department of Natural delegations and not grant program and EPA must follow for revision of Resources to full independent approval for Boiler and Industrial State programs are found at 40 CFR departmental status as the Department Furnace revisions under RCRA. This 271.21(b). of Environmental Quality (DEQ). request is based upon Michigan’s recent The State of Michigan initially According to the Michigan Attorney enactment of Public Act 132 of 1996, received final authorization for its General, ‘‘the DEQ retained all of its which establishes certain environmental hazardous waste management program environmental responsibilities and audit privilege and immunity provisions effective on October 30, 1986 (51 FR virtually all of the personnel formerly in the State’s natural resources and 36804–36805, October 16, 1986). assigned to it as a bureau of the DNR.’’ environmental protection code. EO Subsequently, Michigan received The Attorney General further stated that 1995–18 predated passage of Act 132. authorization for revisions to its ‘‘E.O. 1995–18 did not substantively EPA’s March 28, 1997, proposed action program, effective on January 23, 1990 change the State’s statutes or rules (54 FR 225, November 24, 1989); June relating to the administration of only addressed and sought comment on 24, 1991 (56 FR 18517, April 23, 1991); Federally delegated programs nor was the impact of EO 1995–18 noted above November 30, 1993 (58 FR 51244, any authority, power, duty or function on Michigan’s RCRA program. October 1, 1993); January 13, 1995 (60 contained within Michigan’s statutes or Accordingly, today’s decision to FR 3095, January 13, 1995); and April 8, rules applicable to Federally delegated preliminarily approve of revisions to 1996 (61 FR 4742, February 8, 1996). programs diminished by the execution Michigan’s RCRA program arising out of Michigan’s Program Description dated of E.O. 1995–18. Specifically, E.O. EO 1995–18 does not express any June 30, 1984, and addenda thereto 1995–18 did not affect program viewpoint on the question of whether dated June 30, 1986; September 12, jurisdiction, the scope of activities there are legal deficiencies in 1988; July 31, 1990; August 10, 1992; regulated, criteria for the review of Michigan’s RCRA program resulting August 18, 1994; and September 6, permits, public participation, from Public Act 132 of 1996, which was 1995, which were a component of the enforcement capabilities or the enacted after this Executive Order was State’s original final authorization and adequacy of Michigan’s legal authority issued. EPA is addressing the issues subsequent revision applications, to carry out its Federally delegated raised by MEC regarding Public Act 132 specified that the Michigan Department programs.’’ of 1996 separately. of Natural Resources (MDNR) was the Based on the information available, agency responsible for implementing EPA determined that the reorganization B. Comments Michigan’s hazardous waste of the State’s hazardous waste No adverse comments were received management program. The Program management program resulting from EO by EPA during the public comment Description also indicated that the Site 1995–18 constitutes a program revision period. Review Board (SRB) had authority to requiring appropriate EPA review and approve or deny construction permit approval under RCRA. EPA also C. Decision applications. The SRB was subsequently determined that the EO 1995–18 did not made a consultative body and the SRB’s result in significant modification of I conclude that Michigan’s powers were transferred to the Director Michigan’s hazardous waste program, application for final authorization of of the MDNR by Executive Order 1991– nor did the Order transfer any part of revisions resulting from EO 1995–18 31, which took effect on September 2, the program from the approved State meets the necessary requirements under 1993. agency to any other State agency. RCRA. Accordingly, Michigan is granted On July 31, 1995, the Governor of Therefore, EPA does not view the final authorization to operate its Michigan issued Executive Order 1995– reorganization as a transfer within the hazardous waste program as revised by 18 (EO 1995–18), which became purview of 40 CFR 271.21(c). EO 1995–18. Michigan has effective on October 1, 1995. On January Based upon review of the documents responsibility for permitting treatment, 19, 1996, Michigan submitted materials submitted by Michigan, EPA made a storage, and disposal facilities within its for EPA to determine the impact of EO preliminary determination to approve borders and carrying out other aspects 1995–18 upon the authorized State Michigan’s hazardous waste of the RCRA program described in its hazardous waste management program. management program, as revised, revised program application, subject to The materials consisted of a letter from pursuant to 40 CFR 271.21(b). On March the limitations of the HSWA. Michigan the Michigan Attorney General’s office 28, 1997, EPA published a notice in the also has primary enforcement setting forth the State of Michigan’s Federal Register announcing EPA’s responsibilities, although EPA retains analysis as to why the establishment of proposed decision. The notice also the right to conduct inspections under the new Michigan DEQ does not stated that the proposed decision would Section 3007 of RCRA and to take represent a transfer to a ‘‘new agency’’ be subject to public review and enforcement actions under Sections pursuant to 40 CFR 271.21(c), a copy of comment, and announced the 3008, 3013, and 7003 of RCRA. EO 1995–18, updated letters of availability of Michigan’s application delegation and procedures regarding for public inspection at three locations D. Incorporation by Reference avoidance of conflict of interest in in Michigan as well as the EPA regional contested case proceedings. On June 13, office in Chicago. EPA incorporates by reference 1996, Michigan submitted a As was noted in the March 28, 1997, authorized State programs in 40 CFR supplemental statement of the Michigan Federal Register notice, the EPA has part 272 to provide notice to the public Attorney General regarding the pending before it a request, submitted in of the scope of the authorized program appraisal of the Attorney General of the a letter dated June 14, 1996, by the in each State. Incorporation by reference impact of EO 1995–18 on Michigan’s Michigan Environmental Council of these revisions to the Michigan delegated environmental programs. In (MEC), to revoke Michigan’s National program will be completed at a later the supplemental statement, the Pollution discharge Elimination System date. Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61177

Compliance With Executive Order Michigan request for approval of number of small entities. The EPA 12866 revisions to its authorized hazardous recognizes that small entities may own The Office of Management and Budget waste program is voluntary and imposes and/or operate TSDFs that will become has exempted this rule from the no Federal mandate within the meaning subject to the requirements of an requirements of Section 6 of Executive of the Act. Rather, by having its approved State hazardous waste Order 12866. hazardous waste program approved, the program. However, since such small State will gain the authority to entities which own and/or operate Unfunded Mandates Reform Act implement the program within its TSDFs are already subject to the Title II of the Unfunded Mandates jurisdiction, in lieu of the EPA, thereby requirements in 40 CFR parts 264, 265, Reform Act of 1995 (UMRA), Pub. L. eliminating duplicative State and and 270, this authorization does not 104–4, establishes requirements for Federal requirements. If a State chooses impose any additional burdens on these Federal agencies to assess the effects of not to seek authorization for small entities. This is because the EPA’s their regulatory actions on State, local, administration of a hazardous waste authorization would result in an and tribal governments and the private program under RCRA Subtitle C, RCRA administrative change (i.e., whether the sector. Under section 202 of the UMRA, regulation is left to the EPA. In any EPA or the State administers the RCRA the EPA generally must prepare a event, the EPA has determined that this Subtitle C program in that State), rather written statement, including a cost- rule does not contain a Federal mandate than result in a change in the benefit analysis, for proposed and final that may result in expenditures of $100 substantive requirements imposed on rules with ‘‘Federal mandates’’ that may million or more for State, local, and small entities. Once the EPA authorizes result in expenditures to State, local, tribal governments, in the aggregate, or a State to administer its own hazardous and tribal governments, in the aggregate, the private sector in any one year. The waste program and any revisions to that or to the private sector, of $100 million EPA does not anticipate that the program, these same small entities will approval of the Michigan hazardous be able to own and operate their TSDFs or more in any one year. Before waste program referenced in today’s under the approved State program, in promulgating an EPA rule for which a notice will result in annual costs of lieu of the Federal program. Moreover, written statement is needed, section 205 $100 million or more. The EPA’s this authorization, in approving a State of the UMRA generally requires the EPA approval of State programs generally program to operate in lieu of the Federal to identify and consider a reasonable may reduce, not increase, compliance program, eliminates duplicative number of regulatory alternatives and costs for the private sector since the requirements for owners and operators adopt the least costly, most cost- State, by virtue of the approval, may of TSDFs in that particular State. effective or least burdensome alternative now administer the program in lieu of Therefore, the EPA provides the that achieves the objectives of the rule. the EPA and exercise primary following certification under the The provisions of section 205 do not enforcement. Hence, owners and regulatory Flexibility Act, as amended apply when they are inconsistent with operators of treatment, storage, or by the Small Business Regulatory applicable law. Moreover, section 205 disposal facilities (TSDFs) generally no Enforcement Fairness Act. Pursuant to allows the EPA to adopt an alternative longer face dual Federal and State the provision at 5 U.S.C. 605(b), I hereby other than the least costly, most cost- compliance requirements, thereby certify that this authorization will not effective or least burdensome alternative reducing overall compliance costs. have a significant economic impact on if the Administrator publishes with the Thus, today’s rule is not subject to the a substantial number of small entities. final rule an explanation why that requirements of section 202 and 205 of This authorization effectively approves alternative was not adopted. Before the the UMRA. the Michigan program to operate in lieu EPA establishes any regulatory The EPA has determined that this rule of the Federal program, thereby requirements that may significantly or contains no regulatory requirements that eliminating duplicative requirements for uniquely affect small governments, might significantly or uniquely affect handlers of hazardous waste in the including tribal governments, it must small governments. The Agency State. It does not impose any new have developed under section 203 of the recognizes that small governments may burdens on small entities. This rule, UMRA a small government agency plan. own and/or operate TSDFs that will therefore, does not require a regulatory The plan must provide for notifying become subject to the requirements of flexibility analysis. potentially affected small governments, an approved State hazardous waste enabling officials of affected small program. However, such small Submission to Congress and the governments to have meaningful and governments which own and/or operate General Accounting Office timely input in the development of the TSDFs are already subject to the Under 5 U.S.C. 801(a)(1)(A) as added EPA regulatory proposals with requirements in 40 CFR parts 264, 265, by the Small Business Regulatory significant Federal intergovernmental and 270 and are not subject to any Enforcement Fairness Act of 1996, the mandates, and informing, educating, additional significant or unique EPA submitted a report containing this and advising small governments on requirements by virtue of this program rule and other required information to compliance with the regulatory approval. Once the EPA authorizes a the U.S. Senate, the U.S. House of requirements. State to administer its own hazardous Representatives, and the Comptroller Today’s rule contains no Federal waste program and any revisions to that General of the General Accounting mandates for State, local or tribal program, these same small governments Office prior to publication of the rule in governments or the private sector. The will be able to own and operate their today’s Federal Register. This rule is Act excludes from the definition of a TSDFs under the approved State not a ‘‘major rule’’ as defined by 5 ‘‘Federal mandate’’ duties that arise program, in lieu of the Federal program. U.S.C. 804(2). from participation in a voluntary Federal program, except in certain cases Certification Under the Regulatory Paperwork Reduction Act where a ‘‘Federal intergovernmental Flexibility Act The proposal contains no requests for mandate’’ affects an annual Federal The EPA has determined that this information and consequently is not entitlement program of $500 million or authorization will not have a significant subject to the Paperwork Reduction Act, more that are not applicable here. The economic impact on a substantial 44 U.S.C. 3501 et seq. 61178 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water pollution control, Water supply. Authority: This notice is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, 6974(b). Dated: October 1, 1997. David A. Ullrich, Acting Regional Administrator. [FR Doc. 97–29624 Filed 11–13–97; 8:45 am] BILLING CODE 6560±50±P federal register November 14,1997 Friday Awards forFiscalYear(FY1998);Notice Notice InvitingApplicationsforNew Development andImplementationProject; Bilingual Education:Program Education Department of Part III 61179 61180 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

DEPARTMENT OF EDUCATION 85, and 86; and (b) 34 CFR Part 299, invitational priorities. However, an General Provisions, Elementary and application that meets one or more of [CFDA No.: 84.288S] Secondary Education Act, published on these invitational priorities does not Bilingual Education: Program May 22, 1997, in the Federal Register receive competitive or absolute Development and Implementation (62 FR 28247). preference over other applications (34 CFR 75.105(c)(1)). Project; Notice Inviting Applications Description of Program for New Awards for Fiscal Year (FY) Invitational Priority 1—Reading 1998 The statutory authorization for this program, and the application Projects that focus on assisting limited Note to Applicants: This notice is a requirements that apply to this English proficient students to read complete application package. Together competition, are set out in sections 7112 independently and well by the end of with the statute authorizing the program and 7116 of the Elementary and third grade. and applicable regulations governing Secondary Education Act of 1965, as Invitational Priority 2—Mathematics the program, including the Education amended by the Improving America’s Department General Administrative Schools Act of 1994 (Pub. L. 103–382, Projects that focus on assisting limited Regulations (EDGAR), this notice enacted October 20, 1994 (the Act) (20 English proficient students to master contains all of the information, U.S.C. 7422 and 7426)). challenging mathematics, including the application forms, and instructions The grants awarded under this section foundations of algebra and geometry, by needed to apply for a grant under this are to be used to improve the education the end of eighth grade. program. of limited English proficient students Invitational Priority 3—Preparation for Purpose of Program: The purpose of and their families. Specifically, grantees Postsecondary Education this program is to provide grants to are required to serve limited English develop and implement new proficient students by: (a) developing Projects that focus on motivating and comprehensive, coherent, and and implementing comprehensive academically preparing limited English successful bilingual education or special preschool, elementary, or secondary proficient students for successful alternative instructional programs for bilingual education or special participation in college and other limited English proficient (LEP) alternative instructional programs that postsecondary education. students, including programs of early are coordinated with other relevant Selection Criteria childhood education, kindergarten programs and services; and (b) through twelfth grade education, gifted providing inservice training to (a)(1) The Secretary uses the following and talented education, and vocational classroom teachers, administrators, and selection criteria to evaluate and applied technology education. other school or community-based applications for new grants under this Eligible Applicants: (1) One or more organizational personnel. Grantees may competition (34 CFR 75.209, 75.210, local educational agencies (LEAs); (2) also implement family education and 20 U.S.C. 7116(i)(1)). one or more LEAs in collaboration with programs, improve the instructional (2) The maximum score for all of an institution of higher education (IHE), program, compensate personnel, and these criteria is 100 points. community-based organization (CBO), provide tutorials. (3) The maximum score for each other LEAs, or a State educational criterion is indicated in parentheses. agency (SEA); or (3) a CBO or an IHE Priorities (b) The criteria—(1) Extent of need for that has an application approved by the Competitive Priority: The Secretary the project. (20 points) (i) The Secretary LEA to develop and implement early gives preference to applications that considers the needs for the proposed childhood education or family meet the following competitive priority project. education programs or to conduct an (34 CFR 75.105(c)(2)(i) and 34 CFR (ii) In determining the need for the instructional program that supplements 299.3(b)). The Secretary awards 3 points proposed project, the Secretary the educational services provided by an to an application that meets this considers the following factors: LEA. competitive priority. These points are in (A) The magnitude or severity of the Deadline for Transmittal of addition to any points the application problem to be addressed by the Applications: January 20, 1998. earns under the selection criteria for the proposed project. Deadline for Intergovernmental program. (B) The extent to which the proposed Review: March 23, 1998. Projects that will contribute to project will provide services or Available Funds: $6,000,000. systemic educational reform in an otherwise address the needs of students Note: The Congress has not yet enacted an Empowerment Zone, including a at risk of educational failure. FY 1998 appropriation for the Department of Supplemental Empowerment Zone, or (Authority: 34 CFR 75.210(a)(1), (2)(i) and Education. The actual level of funding for an Enterprise Community designated by (iii)) this program is contingent upon final the United States Department of congressional action. (2) Quality of the project design. (25 Housing and Urban Development or the points) (i) The Secretary considers the Estimated Range of Awards: United States Department of quality of the design of the proposed $100,000–$175,000. Agriculture, and are made an integral project. Estimated Average Size of Awards: part of the Zone’s or Community’s (ii) In determining the quality of the $150,000. comprehensive community design of the proposed project, the Estimated Number of Awards: 40. revitalization strategies. Secretary considers the following Note: The Department of Education is not Note: A list of areas that have been factors: bound by any estimates in this notice. designated as Empowerment Zones and (A) The extent to which the goals, Project Period: 36 months. Enterprise Communities is provided in the objectives, and outcomes to be achieved Applicable Regulations: (a) The appendix to this notice. by the proposed project are clearly Education Department General Invitational Priorities: The Secretary specified and measurable. Administrative Regulations (EDGAR) in is particularly interested in applications (B) The extent to which the design of 34 CFR Parts 74, 75, 77, 79, 80, 81, 82, that meet one or more of the following the proposed project is appropriate to, Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61181 and will successfully address, the needs traditionally been underrepresented variety of disciplinary and professional of the target population or other based on race, color, national origin, fields, recipients or beneficiaries of identified needs. gender, age, or disability. services, or others, as appropriate. (C) The extent to which the proposed (iii) In addition, the Secretary (Authority: 34 CFR 75.210(g)(1), (2)(i) and project is designed to build capacity and considers the following factors: (iv)–(v)) yield results that will extend beyond the (A) The qualifications, including period of Federal financial assistance. relevant training and experience of the (7) Quality of project evaluation. (10 (D) The extent to which the proposed project director and principal points) (i) The Secretary considers the project will be coordinated with similar investigator; quality of the evaluation to be or related efforts, and with other (B) The qualifications, including conducted of the proposed project. appropriate community, State, and relevant training and experience, of key (ii) In determining the quality of the Federal resources. project personnel. evaluation, the Secretary considers the (E) The extent to which the proposed (C) The qualifications, including the following factors: (A) The extent to which the methods project is part of a comprehensive effort relevant training and experience, of the of evaluation are thorough, feasible, and to improve teaching and learning and project consultants or subcontractors. appropriate to the goals, objectives, and support rigorous academic standards for (Authority: 34 CFR 75.210(e)(1)–(3)(i)–(iii)) outcomes of the proposed project. students. (B) The extent to which the methods (F) The extent to which the proposed (5) Adequacy of resources. (3 points) of evaluation are appropriate to the project encourages parental (i) The Secretary considers the adequacy context within which the project involvement. of resources for the proposed project. (ii) In determining the adequacy of operates. (Authority: 34 CFR 75.210(c)(1), (2)(i), (ii), resources for the proposed project, the (C) The extent to which the methods (xii), (xvi), (xviii) and (xix)) Secretary considers the following of evaluation provide for examining the (3) Quality of project services. (15 factors: effectiveness of project implementation points) (i) The Secretary considers the (A) The extent to which the budget is strategies. quality of the services to be provided by adequate to support the proposed (D) The extent to which the methods the proposed project. project. of evaluation include the use of (ii) In determining the quality of the (B) The extent to which the costs are objective performance measures that are services to be provided by the proposed reasonable in relation to the objectives, clearly related to the intended outcomes project, the Secretary considers the design, and potential significance of the of the project and will produce quality and sufficiency of strategies for proposed project. quantitative and qualitative data to the ensuring equal access and treatment for (C) The extent to which the costs are extent possible. eligible project participants who are reasonable in relation to the number of (E) The extent to which the methods members of groups that have persons to be served and to the of evaluation will provide performance traditionally been underrepresented anticipated results and benefits. feedback and permit periodic based on race, color, national origin, (D) The potential for continued assessment of progress toward achieving gender, age, or disability. support of the project after Federal intended outcomes. (iii) In addition, the Secretary funding ends, including, as appropriate, (Authority: 34 CFR 75.210(h)(1), (2)(i)–(iv) considers the following factors: the demonstrated commitment of and (vi)) (A) The extent to which the services appropriate entities to such support. (8) Proficiency in English and another to be provided by the proposed project (Authority: 34 CFR 75.210(f)(1), language. (5 points) The Secretary are appropriate to the needs of the (2)(iii)(iv)(v)(vi)) reviews each application to determine intended recipients or beneficiaries of (6) Quality of the management plan. how well the proposed project will those services. provide for the development of bilingual (B) The extent to which the training (15 points) (i) The Secretary considers the quality of the management plan for proficiency both in English and another or professional development services to language for all participating students. be provided by the proposed project are the proposed project. of sufficient quality, intensity, and (ii) In determining the quality of the (Authority: 20 U.S.C. 7426(i)(1)) duration to lead to improvements in management plan for the proposed project, the Secretary considers one or Intergovernmental Review of Federal practice among the recipients of those Programs services. more of the following factors: (C) The likelihood that the services to (A) The adequacy of the management This program is subject to the be provided by the proposed project plan to achieve the objectives of the requirements of Executive Order 12372 will lead to improvements in the proposed project on time and within (Intergovernmental Review of Federal achievement of students as measured budget, including clearly defined Programs) and the regulations in 34 CFR against rigorous academic standards. responsibilities, timelines, and Part 79. milestones for accomplishing project The objective of the Executive order is (Authority: 34 CFR 75.210(d)(1), (2), (3), (i), tasks. to foster an intergovernmental (v), and (vii)) (B) The extent to which the time partnership and to strengthen (4) Quality of project personnel. (7 commitments of the project director and federalism by relying on State and local points) (i) The Secretary considers the principal investigator and other key processes for State and local quality of the personnel who will carry project personnel are appropriate and government coordination and review of out the proposed project. adequate to meet the objectives of the proposed Federal financial assistance. (ii) In determining the quality of the proposed project. Applicants must contact the project personnel, the Secretary (C) How the applicant will ensure that appropriate State Single Point of considers the extent to which the a diversity of perspectives are brought to Contact to find out about, and to comply applicant encourages applications for bear in the operation of the proposed with, the State’s process under employment from persons who are project, including those of parents, Executive order 12372. Applicants members of groups that have teachers, the business community, a proposing to perform activities in more 61182 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices than one State should immediately (c) If an application is mailed through Transactions (ED 80–0014, 9/90) and contact the Single Point of Contact for the U.S. Postal Service, the Secretary instructions. each of those States and follow the does not accept either of the following Note: ED 80–0014 is intended for the use procedure established in each State as proof of mailing: of grantees and should not be transmitted to under the Executive Order. If you want (1) A private metered postmark. the Department. to know the name and address of any (2) A mail receipt that is not dated by o. Disclosure of Lobbying Activities State Single Point of Contact, see the list the U.S. Postal Service. (Standard Form LLL) (if applicable) and published in the Federal Register on Notes: (1) The U.S. Postal Service does not instructions. This document has been October 7, 1997 (62 FR 52448 through uniformly provide a dated postmark. Before marked to reflect statutory changes. See 52450). relying on this method, an applicant should the notice published in the Federal In States that have not established a check with its local post office. process or chosen a program for review, Register (61 FR 1413) by the Office of State, areawide, regional, and local (2) The Application Control Center Management and Budget on January 19, entities may submit comments directly will mail a Grant Application Receipt 1996. to the Department. Acknowledgment to each applicant. If An applicant may submit information Any State Process Recommendation an applicant fails to receive the on a photostatic copy of the application and other comments submitted by a notification of application receipt and budget forms, the assurances, and State Single Point of Contact and any within 15 days from the date of mailing the certifications. However, the comments from State, areawide, the application, the applicant should application form, the assurances, and regional, and local entities must be call the U.S. Department of Education the certification must each have an mailed or hand-delivered by the date Application Control Center at (202) original signature. indicated in this notice to the following 708–9495. All applicants must submit ONE address: The Secretary, E.O. 12372— (3) The applicant must indicate on the original signed application, including CFDA# 84.288S, U.S. Department of envelope and—if not provided by the ink signatures on all forms and Education, Room 6213, 600 Department—in Item 10 of the assurances, and TWO copies of the Independence Avenue, SW., Application for Federal Assistance application. Please mark each Washington, D.C. 20202–0124. (Standard Form 424) the CFDA application as ‘‘original’’ or ‘‘copy.’’ No Proof of mailing will be determined number—and suffix letter, if any—of the grant may be awarded unless a on the same basis as applications (see 34 competition under which the completed application has been CFR 75.102). Recommendations or application is being submitted. received. For Further Information Contact: Ana comments may be hand-delivered until Application Instructions and Forms 4:30 p.m. (Washington, D.C. time) on Garcia (202) 205–8077, Rik the date indicated in this notice. The appendix to this notice contains Lanzendorfer (202) 205–8840, Socorro the following forms and instructions, Lara (202) 205–9730, Darlene Miles Please note that the above address is not the same address as the one to which the plus a statement regarding estimated (202) 205–8259, Terence Sullivan (202) applicant submits its completed application. public reporting burden, a notice to 205–9752, Itzetht Testa-Salcedo (202) Do not send applications to the above applicants regarding compliance with 205–8726 or Edia Velez (202) 205–9715, address. section 427 of the General Education U.S. Department of Education, 600 Provisions Act, a checklist for Independence Avenue, SW., Room Instructions for Transmittal of applicants, various assurances, 5090, Switzer Building, Washington, Applications certifications, and required D.C. 20202–6510. Individuals who use a (a) If an applicant wants to apply for documentation: telecommunications device for the deaf a grant, the applicant shall— a. Instructions for Application (TDD) may call the Federal Information (1) Mail the original and two copies Narrative. Relay Service (FIRS) at 1–800–877–8339 of the application on or before the b. Additional Guidance. between 8 a.m. and 8 p.m., Eastern time, deadline date to: U.S. Department of c. Estimated Public Reporting Burden. Monday through Friday. Education, Application Control Center, d. Notice to All Applicants. Individuals with disabilities may # Attention: (CFDA 84.288S), e. Checklist for Applicants. obtain this notice in an alternate formate Washington, D.C. 20202–4725 f. Application for Federal Assistance (e.g., Braille, large print, audiotape, or or (Standard Form 424 (Rev. 4–88)) and computer diskette) on request to one of (2) Hand-deliver the original and two instructions. the contact persons listed in the copies of the application by 4:30 p.m. g. Budget Information—Non- preceding paragraph. Please note, (Washington, D.C. time) on or before the Construction Programs (ED Form No. however, that the Department is not able deadline date to: 524) and instructions. to reproduce in an alternate format the U.S. Department of Education, standard forms included in the notice. Application Control Center, Attention: h. Group Application Certification. (CFDA# 84.288S), Room #3633, Regional i. Student Data. Electronic Access to This Document # j. Project Documentation. Office Building 3, 7th and D Streets, Anyone may view this document, as SW., Washington, D.C. k. Program Assurances. l. Assurances—Non-Construction well as all other Department of (b) An applicant must show one of the Education documents published in the following as proof of mailing: Programs (Standard Form 424B) and Federal Register, in text or portable (1) A legibly dated U.S. Postal Service instructions. document format (pdf) on the World postmark. m. Certifications Regarding Lobbying; (2) A legible mail receipt with the Debarment, Suspension and Other Wide Web at either of the following date of mailing stamped by the U.S. Responsibility Matters; and Drug-Free sites: Postal Service. Workplace Requirements (ED 80–0013, http://ocfo.ed.gov/fedreg.htm (3) A dated shipping label, invoice, or 6/90) and instructions. http://www.ed.gov/news.html receipt from a commercial carrier. n. Certification Regarding Debarment, To use the pdf you must have the Adobe (4) Any other proof of mailing Suspension, Ineligibility and Voluntary Acrobat Reader Program with Search, acceptable to the Secretary. Exclusion—Lower Tier Covered which is available free at either of the Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61183 preceding sites. If your have questions description of the population to be served by Notice to All Applicants about using the pdf, call the U.S. the project, project objectives, and planned Thank you for your interest in this Government Printing Office toll-free at project activities. program. The purpose of this enclosure is to 1–888–293–6498. Selection Criteria. The narrative should inform you about a new provision in the Anyone may also view these address fully all aspects of the selection Department of Education’s General Education criteria in the order listed and should give Provisions Act (GEPA) that applies to documents in text copy only on an detailed information regarding each criterion. electronic bulletin board of the applicants for new grant awards under Do not simply paraphrase the criteria. Do not Department programs. This provision is Department. Telephone: (202) 219–1511 include resume´s or curriculum vitae for section 427 of GEPA, enacted as part of the or, toll-free, 1–800–222–4922. The project personnel; provide position Improving America’s Schools Act of 1994 documents are located under Option descriptions instead. (Pub. L. 103–382). G—Files/Announcements, Bulletins and Empowerment Zone/Enterprise Press Releases. Community Priority. Applicants that wish to To Whom Does This Provision Apply? be considered under the competitive priority Section 427 of GEPA affects applicants for Note: The official version of this document for Empowerment Zones and Enterprise new discretionary grant awards under this is the document published in the Federal Communities, as specified in a previous program. All applicants for new awards must Register. section of this notice, should identify in include information in their applications to Program Authority: 20 U.S.C. 7422. Section D of the Project Documentation Form address this new provision in order to receive Dated: November 7, 1997. the applicable Zone or Community. The funding under this program. application narrative should describe the Delia Pompa, extent to which the proposed project will What Does This Provision Require? Director, Office of Bilingual Education and contribute to systemic educational reform in Section 427 requires each applicant for Minority Languages Affairs. the particular Zone or Community and be an funds (other than an individual person) to Appendix integral part of the Zone’s or Community’s include in its application a description of the comprehensive revitalization strategies. A list steps the applicant proposes to take to ensure Estimated Public Reporting Burden of areas that have been designated as equitable access to, and participation in, its Statement Empowerment Zones and Enterprise federally-assisted program for students, According to the Paperwork Reduction Act Communities is provided in this appendix. teachers, and other program beneficiaries of 1995, no persons are required to respond Additional Guidance with special needs. to a collection of information unless it This section allows applicants discretion displays a valid OMB control number. The Table of Contents. The application should in developing the required description. The valid OMB control number for this include a table of contents listing the sections statute highlights six types of barriers that collections of information is 1885–0528. in the order required. can impede equitable access or participation Expiration date: 4/30/98. The time required Budget. Budget line items must support the that you may address: gender, race, national to complete this collection of information is goals and objectives of the proposed project origin,, color, disability, or age. Based on estimated to average 80 hours per response, and must be directly related to the local circumstances, you can determine including the time to review instructions, instructional design and all other project whether these or other barriers may prevent search existing data sources, gather the data components. your students, teachers, etc. from equitable needed, and complete and review the Final Application Preparation. Use the access or participation. Your description collection of information. If you have any Checklist for Applicants to verify that your need not be lengthy; you may provide a clear comments concerning the accuracy of the application is complete. Submit three copies and succinct description of how you plan to time estimate(s) or suggestions for improving of the application, including an original copy address those barriers that are applicable to this form, please write to: U.S. Department of containing an original signature for each form your circumstances. In addition, the Education, Washington, D.C. 20202–4651. requiring the signature of the authorized information may be provided in a single If you have comments or concerns representative. Do not use elaborate bindings narrative, or, if appropriate, may be regarding the status of your individual or covers. The application package must be discussed in connection with related topics submission of this form, write directly to: mailed or hand-delivered to the Application in the application. Office of Bilingual Education and Minority Control Center (ACC) and postmarked by the Section 427 is not intended to duplicate Languages Affairs, U.S. Department of deadline date. the requirements of civil rights statutes, but Education, 600 Independence Avenue, SW., Submission of Application to State rather to ensure that, in designing their Room 5094, MES Building, Washington, D.C. Educational Agency. Section 7116(a)(2) of the projects, applicants for Federal funds address 20202–6510. authorizing statute (Elementary and equity concerns that may affect the ability of Secondary Education Act of 1965, as certain potential beneficiaries to fully Instructions for Application Narrative amended by the Improving America’s participate in the project and to achieve to Mandatory Page Limit for the Application Schools Act of 1994, Pub. L. 103–382) high standards. Consistent with program Narrative. The narrative portion of the requires all applicants except schools funded requirements and its approved application, application must not exceed 35 pages. These by the Bureau of Indian Affairs to submit a an applicant may use the Federal funds pages must be double-spaced and printed on copy of their application to their State awarded to it to eliminate barriers it one side only. A legible font size and educational agency (SEA) for review and identifies. adequate margins should be used. The comment (20 U.S.C. 7426(a)(2)). Section narrative section must be paginated and 75.156 of the Education Department General What Are Examples of How an Applicant should include a one page abstract. The 35 Administrative Regulations (EDGAR) Might Satisfy the Requirements of This page limit applies to the abstract, proposal requires these applicants to submit their Provision? narrative, charts, graphs, tables, graphics, application to the SEA on or before the The following examples may help illustrate position descriptions (and resumes, if deadline date for submitting their application how an applicant may comply with section included), and any appendices. The page to the Department of Education. This section 427. limit does not apply to application forms, of EDGAR also requires applicants to attach (1) An applicant that proposes to carry out attachments to those forms, assurances, to their application a copy of their letter that an adult literacy project serving, among certifications, and the table of contents. The requests the SEA to comment on the others, adults with limited English page limit applies only to items 14 and not application (34 CFR 75.156). A copy of this proficiency, might describe in its application to the other items in the Checklist for letter should be attached to the Project how it intends to distribute a brochure about Applicants. Applications with a narrative Documentation Form contained in this the proposed project to such potential section that exceeds the page limit will not application package. participants in their native language. be considered for funding. Applicants that do not submit a copy of (2) An applicant that proposes to develop Abstract. The narrative section should their application to their SEA will not be instructional materials for classroom use begin with an abstract that includes a short considered for funding. might describe how it will make the 61184 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices materials available on audio tape or in braille Supplemental Empowerment Zones (Listed Rhode Island: Providence for students who are blind. Alphabetically by State) South Carolina: Charleston, Williamsburg (3) An applicant that proposes to carry out California: Los Angeles County a model science program for secondary Ohio: Cleveland South Dakota: Beadle County, Spink County students and is concerned that girls may be Tennessee: Fayette County, Haywood less likely than boys to enroll in the course, Enterprise Communities (Listed County, Memphis Nashville, Scott County might indicate how it intends to conduct Alphabetically by State) Texas: Dallas, El Paso, San Antonio, Waco ‘‘outreach’’ efforts to girls, to encourage their Alabama: Birmingham, Chambers County, Utah: Ogden enrollment. Greene County, Sumter County Vermont: Accomack County, Norfolk We recognize that many applicants may Arizona: Arizona Border Area, (Cochise, Washington: Lower Yakima County, Seattle, already be implementing effective steps to Santa Cruz and Yuma Counties), Phoenix Tacoma ensure equity of access and participation in Arkansas: East Central Area (Cross, Lee, West Virginia: Huntington, McDowell their grant programs, and we appreciate your Monroe, and St. Francis Counties), County, West Central Areas (Braxton, Clay, cooperation in responding to the Mississippi County, Pulaski County Fayette, Nichols, and Roane Counties) requirements of this provision. California: Imperial County, Los Angeles Wisconsin: Milwaukee (Huntington Park), San Diego, San Estimated Burden Statement Francisco (Hayview, Hunter’s Pointer), Checklist for Applicants According to the Paperwork Reduction Act Watsonville The following forms and other items must of 1995, no persons are required to respond Colorado: Denver be included in the application in the order to a collection of information unless it Connecticut: Bridgeport, New Haven listed below: displays a valid OMB control number. The Delaware: Wilmington b 1. Application for Federal Assistance (SF valid OMB control number for this District of Columbia: Washington 424). information collection is 1801–0004 (Exp. 8/ Florida: Jackson County b 2. Group Application Certification (if 31/98). The time required to complete this Georgia: Central Savannah River Area (Burke, applicable). information collection is estimated to vary Hancock, Jefferson, McDuffie, Tallaferro, b 3. Budget Information (ED Form No. 524). from 1 to 3 hours per response, with an and Warrent Counties), Crisp County, b 4. Itemized Budget for each year. average of 1.5 hours, including the time to Dooley County b 5. Student Data. review instructions, search existing data Illinois: East St. Louis, Springfield b 6. Project Documentation, including— resources, gather and maintain the data Indiana: Indianapolis Transmittal Letter to SEA; needed, and complete and review the Iowa: Des Moines Documentation of Consultation with information collection. If you have any Kentucky: Louisville, McCreary County nonprofit private school officials; comments concerning the accuracy of the Louisiana: Macon Ridge Area (Catahouis, Appropriate box checked in Section C. time estimate(s) or suggestions for improving Concordia, Franklin, Morehouse, and b 7. Program Assurances Form. this form, please write to: U.S. Department of Tensas Parishes), New Orleans, Northeast b 8. Empowerment Zone or Enterprise Delta Area (Madison Parish), Quachita Education, Washington, DC 20202–4651. Community Identification (if applicable). Parish b 9. Assurances—Non-Construction Empowerment Zones and Enterprise Massachusetts: Lowell, Springfield Programs (SF 424B). Communities Michigan: Five Cap, Flint, Muskegon b 10. Certifications Regarding Lobbying; Minnesota: Minneapolis, St. Paul Empowerment Zones (Listed Alphabetically Debarment, Suspension and Other Mississippi: Jackson, North Delta Area by State) Responsibility Matters; and Drug-Free (Panola, Quitman, and Tallahatchie Workplace Requirements (ED 80–0013). California: Oakland Counties) b 11. Certification Regarding Debarment, Georgia: Atlanta Missouri: East Prairie, St. Louis Suspension, Ineligibility and Voluntary Illinois: Chicago Nebraska: Omaha Exclusion-Lower Tier Covered Kansas: Kansas City Nevada: Clarke County, Las Vegas Transactions (ED 80–0014), if applicable. Kentucky: Kentucky Highlands Area New Hampshire: Manchester b 12. Disclosure of Lobbying Activities (Clinton, Jackson, and Wayne Counties) New Jersey: Newark (SF–LLL). Maryland: Baltimore New Mexico: Albuquerque, Moro County, b 13. Information that addresses section Massachusetts: Boston Rio Arriba County, Taos County 427 of the General Education Provisions Michigan: Detroit New York: Albany, Buffalo, Kingston, Act. (See the section entitled ‘‘NOTICE Mississippi: Mid-Delta Area (Bolivar, Newburgh, Rochester, Schenectady, Troy TO ALL APPLICANTS’’ (OMB No. 1801– Holmes, Humphreys, and LeFlore North Carolina: Charlotte, Edgecombe 0004)) b Counties) County, Halifax County, Robeson County, 14. Table of Contents. b Missouri: Kansas City Wilson County 15. Application Narrative, including New Jersey: Camden Ohio: Akron, Columbus, Greater Portsmouth abstract (not to exceed 35 pages). b New York: Harlem, Bronx Area (Scioto County) 16. One original and two copies of the Pennsylvania: Philadelphia Oklahoma: Choctaw County, McCurtain application for transmittal to the Texas: Houston, Rio Grande Valley Area County, Oklahoma City Department’s Application Control (Cameron, Hidalgo, Starr, and Willacy Pennsylvania: Harrisburg, Lock Haven, Center. Counties) Pittsburgh BILLING CODE 4000±01±P Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61185 61186 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61187 61188 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61189 61190 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61191 61192 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61193 61194 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61195 61196 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61197 61198 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61199 61200 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices 61201 61202 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Notices

[FR Doc. 97–29998 Filed 11–13–97; 8:45 am] BILLING CODE 4000±01±C federal register November 14,1997 Friday of theCleanAirAct;FinalRule on PetitionPursuanttoSection325(a)(1) United StatesVirginIslandsFinalRuling 40 CFRPart69 Protection Agency Environmental Part IV 61203 61204 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION (PSD) permit to the EPA. Air quality Management and Budget (OMB) has AGENCY analyses submitted in support of the exempted this regulatory action from proposed PSD modification indicated Executive Order 12866 review. that although emissions of sulfur 40 CFR Part 69 Regulatory Flexibility dioxide (SO2) will be substantially [FRL±5920±8] reduced below the amount HOVIC is EPA has determined that it is not United States Virgin Islands Final currently permitted to emit, occasional necessary to prepare a regulatory Ruling on Petition Pursuant to Section exceedances of the 24-hr National flexibility analysis in connection with 325(a)(1) of the Clean Air Act Ambient Air Quality Standard (NAAQS) this final rule. EPA has also determined for this pollutant could occur, to the that this rule will not have a significant AGENCY: Environmental Protection north of the facility, during those days economic impact on a substantial Agency (EPA). that the wind blows onshore for a number of small entities. This is ACTION: Final rulemaking. persistent length of time. because the final rule applies only to the The petition proposed to prevent Hess Oil Virgin Islands refinery on St. SUMMARY: On June 10, 1997, the these potential exceedances from Croix, Virgin Islands. This facility is not Environmental Protection Agency (EPA) occurring by reducing the sulfur content a small entity, and the action granting proposed to approve a petition of the fuel processed during those time the petition will relieve the source from submitted by the Governor of the U.S. periods. Since this constitutes an ICS restrictions that would otherwise apply. Virgin Islands which requested a waiver based on atmospheric conditions, Unfunded Mandates Reform Act from certain Clean Air Act (the Act) reliance upon which in an restrictions to the Hess Oil Virgin implementation plan is specifically Under section 202 of the Unfunded Islands Corporation (HOVIC) in St. prohibited by the Act, the petition Mandates Reform Act of 1995, EPA Croix. This exemption was proposed requested an exemption from this must prepare a budgetary impact pursuant to section 325(a)(1) of the Act. requirement through provisions statement to accompany any final rule Specifically, the waiver would allow available under Section 325 of the Act. that includes a Federal mandate that HOVIC to implement an Intermittent Granting HOVIC’s petition will make it may result in estimated costs to State, Control Strategy (ICS) based on possible for EPA to consider, in a local, or tribal governments in the atmospheric conditions, which is separate action, HOVIC’s request for a aggregate, or to the private sector, of prohibited by section 123 of the Clean PSD permit modification. EPA is not $100 million or more in any one year. Air Act. The ICS would alleviate entertaining HOVIC’s PSD permit Under section 205, EPA must select the potential exceedances of the National modification request in this action. most cost effective and least Ambient Air Quality Standards for EPA proposed approval of the petition burdensome alternative that achieves sulfur dioxide. In this action, EPA is on June 10, 1997 (62 FR 31546) and this the objectives of the rule and is promulgating this waiver which allows proposal contained the description of consistent with statutory requirements. the HOVIC refinery in St. Croix to the petition, supporting documents and Section 203 requires EPA to establish a implement an ICS under conditions the minimum federally enforceable plan for informing and advising any which will be specified in a federally conditions under which the ICS shall be small governments that may be enforceable Prevention of Significant implemented. These conditions will significantly or uniquely impacted by Deterioration of Air Quality (PSD) also appear in a revised PSD permit. No the rule. permit. comments were received on the EPA has determined that today’s rule EFFECTIVE DATE: This rule will be proposed rulemaking. It should be does not contain a Federal mandate that effective December 15, 1997. noted, that for clarity EPA added some may result in expenditures of $100 FOR FURTHER INFORMATION CONTACT: language into the CFR portion of this million or more in any one year. This Annamaria Colecchia, Permitting rulemaking which had previously been is because the rule is mainly Section, Air Programs Branch, Division included in the preamble to this deregulatory, relieving (subject to of Environmental Planning and proposal (i.e., ICS must include a conditions) the sole regulated entity of Protection, Environmental Protection meteorological tower and ambient limitations that would otherwise apply, Agency, Region 2 Office, 290 Broadway, monitors). and possibly resulting in resource 25th Floor, New York, New York savings to the Hess Oil Virgin Islands Conclusion 10007–1866, Telephone: (212) 637– refinery that would not likely be 4016. Since HOVIC met the requirements in obtained in the absence of today’s rule. section 325 of the Act and EPA received EPA has also determined that this rule SUPPLEMENTARY INFORMATION: no comments during the public contains no regulatory requirements that Background comment period, EPA is promulgating might significantly or uniquely affect small governments, since it imposes no On May 7, 1996, the Governor of the this waiver to the HOVIC refinery in St. additional significant or unique burdens United States Virgin Islands submitted a Croix under the conditions specified in on the Virgin Islands to implement petition to the Administrator of the EPA the proposed approval. today’s rule. for an exemption from certain Administrative Requirements requirements of the Act. The petition, List of Subjects in 40 CFR Part 69 Executive Order 12866 submitted pursuant to Section 325(a)(1) Environmental protection, Air of the Act, requests that the HOVIC This action has been classified as a pollution control. refinery, located on the island of St. Table 3 action by the Administrator Croix, be granted an exemption from under the procedures published in the Dated: November 6, 1997. Section 123 of the Act which prohibits Federal Register on January 19, 1989 Carol M. Browner, basing emission limitations using an (54 FR 2214–2215), as revised by a July Administrator. ICS. HOVIC concurrently submitted a 10, 1995, memorandum from Mary For the reasons stated in the proposed modification to its existing Nichols, Assistant Administrator for Air preamble, 40 CFR part 69 is amended as Prevention of Significant Deterioration and Radiation. The Office of set forth below: Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61205

PART 69Ð[AMENDED] from within the sector for that hour. paragraph (b)(3)(i) of this section for at Each ‘‘day’’ or ‘‘block period’’, for these least 3 consecutive hours following the 1. The authority citation for part 69 purposes will start at midnight and end period during which the winds were continues to read as follows the following midnight. blowing inside the sector. Authority: Sec 325(a), Clean Air Act, as (2) HOVIC shall maintain SO2 (ii) If the ICS was triggered by amended (42 U.S.C. 7625–1). ambient monitors and collect ambient paragraph (b)(3)(ii) of this section, the 2. Subpart D is added consisting of SO2 concentration data for the purpose switch back may occur after all of § 69.41 to read as follows: of implementing the ICS at nearby HOVIC’s ICS ambient monitors measure locations approved by EPA and a 24-hour average concentration which Subpart DÐThe U.S. Virgin Islands specified in the PSD permit. The is less than 75% of the NAAQS for at ambient monitors must follow the § 69.41 New exemptions. least one 24-hour block period following required EPA QA/QC operating any occurrence when the monitor (a) Pursuant to section 325(a) of the specifications. At a minimum, the data measured the concentration which was Clean Air Act and a petition submitted will be collected according to EPA 75% of the NAAQS. by the Governor of the Virgin Islands, an approved State and Local Ambient (iii) If the ICS was triggered by both exemption to section 123 of the Clean Monitoring Stations procedures found at Air Act is granted to the Hess Oil Virgin paragraphs (b)(3)(i) and (b)(3)(ii) of this 40 CFR 58.20, but will, for these section, the switch back may occur Islands Corporation (HOVIC) at the St. purposes, be averaged by the hour, Croix refinery. Specifically, the when both of the conditions in starting on the hour. paragraphs (b)(4)(i) and (b)(4)(ii) of this exemption waives the prohibition on (3) The switch to a lower sulfur fuel section are met. the implementation of an Intermittent (0.5%) will take place when paragraphs Control Strategy (ICS) based upon (b)(3)(i) or (b)(3)(ii) of this section are (c) The protocol may be modified by atmospheric conditions in order to set met. EPA to protect against exceedances of emission limitations. The emission (i) The winds blow from a 45 degree the sulfur dioxide NAAQS. limitations shall depend upon the sulfur sector defined as 143 to 187 degrees (d) In the event that there is an content in the residual oil burned at the inclusive, where zero degrees is due exceedance of the NAAQS, HOVIC will refinery. north, for at least 6 consecutive hours report the exceedance to EPA and (b) The protocol to be followed for the during a 24-hour block period or any 12 recommend corrective action as well as ICS shall be set forth in a Prevention of non-consecutive hours during a 24 hour amendments to the protocol to ensure Significant Deterioration of Air Quality block period. the protection of the NAAQS. (PSD) permit issued to HOVIC; and shall (ii) One of HOVIC’s ICS monitors (e) HOVIC must comply with all fuel include as a minimum, the conditions measures an average ambient SO2 switching requirements, contained in listed in paragraphs (b)(1), (b)(2), (b)(3), concentration that is 75% of the 24-hour HOVIC’s PSD permit. and (b)(4) of this section. NAAQS during any rolling 24-hour (f) This exemption shall take effect (1) HOVIC shall maintain a average. (75% of the 24-hour NAAQS = only in the event that a final PSD permit meteorological tower on its property for 274 ug/m3 or 0.105 ppm). modification becomes effective. the purpose of the ICS which meets the (4) The switch back to the higher (g) The Administrator may terminate required EPA QA/QC operating sulfur fuel (1.0%) may occur if the the exemption through rulemaking specifications. At a minimum, the wind conditions in paragraphs (b)(4)(i), procedures upon determining that direction data will be monitored, (b)(4)(ii), and (b)(4)(iii) of this section HOVIC’s use of the ICS is causing or collected and reported as 1-hour are met. contributing to an exceedance of the averages, starting on the hour. If the (i) If the ICS was triggered by NAAQS. average wind direction for a given hour paragraph (b)(3)(i) of this section, the is from within the designated sector, the switch back may occur when the winds [FR Doc. 97–30021 Filed 11–13–97; 8:45 am] wind will be deemed to have flowed blow outside the sector listed in BILLING CODE 6560±50±P i

Reader Aids Federal Register Vol. 62, No. 220 Friday, November 14, 1997

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

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 E-mail [email protected] the revision date of each title. 308...... 59304 Laws 3 CFR 310...... 59304, 59305 For additional information 523±5227 Proclamations: 320...... 59304 7046...... 59559 Presidential Documents 327...... 59304 7047...... 59773 381...... 59304, 59305 Executive orders and proclamations 523±5227 7048...... 60153 416...... 59304 The United States Government Manual 523±5227 7049...... 60637 417...... 59304 7050...... 60761 Executive Orders: 10 CFR Other Services 12938 (See notice of 13...... 59275 Electronic and on-line services (voice) 523±4534 November 12, Privacy Act Compilation 523±3187 32...... 59275 1997) ...... 60993 50...... 59275 TDD for the hearing impaired 523±5229 13067...... 59989 51...... 59275 Administrative Orders: 55...... 59275 ELECTRONIC BULLETIN BOARD Notice of November 60...... 59275 12, 1997 ...... 60993 72...... 59275 Free Electronic Bulletin Board service for Public Law numbers, Memorandums: 110...... 59275 Federal Register finding aids, and list of documents on public November 4, 1997...... 60995 431...... 59978 inspection. 202±275±0920. 5 CFR Proposed Rules: FAX-ON-DEMAND 2...... 60789 1201...... 59991 You may access our Fax-On-Demand service with a fax machine. 1209...... 59992 11 CFR There is no charge for the service except for long distance 2411...... 60997 telephone charges the user may incur. The list of documents on Proposed Rules: Proposed Rules: 100...... 60047 public inspection and the daily Federal Register’s table of 532...... 59300 contents are available. The document numbers are 7050-Public 630...... 59301 12 CFR Inspection list and 7051-Table of Contents list. The public 2411...... 61035 inspection list is updated immediately for documents filed on an 204...... 59775 emergency basis. 7 CFR 225...... 60639 3...... 60451 325...... 60161 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 614...... 59779 FILE. Documents on public inspection may be viewed and copied 29...... 60155 46...... 60998 619...... 59779 in our office located at 800 North Capitol Street, NW., Suite 700. Proposed Rules: The Fax-On-Demand telephone number is: 301±713±6905 301...... 60763 920...... 60156 3...... 59944 922...... 60158 204...... 60671 FEDERAL REGISTER PAGES AND DATES, NOVEMBER 923...... 60158 208...... 59944 924...... 60158 225...... 59944 59275±59558...... 3 927...... 60999 325...... 59944 59599±59772...... 4 989...... 60764 567...... 59944 59773±59990...... 5 792...... 60799 59991±60154...... 6 8 CFR 60155±60450...... 7 204...... 60769 14 CFR 60451±60636...... 10 213a...... 60122 25...... 59561, 60640 60637±60762...... 12 214...... 60122 39 ...... 59277, 59280, 59565, 60763±60994...... 13 299...... 60122 59566, 59780, 59781, 59993, 60995±61206...... 14 60161, 60451, 60642, 60643, 9 CFR 60644, 60645, 60772, 60773, 78...... 60639 60775, 60777, 61010 92...... 60161 71 ...... 59783, 60455, 60647, 93...... 60161 60778, 60779 94...... 60161, 61002 73...... 60456 95...... 60161 97 ...... 60647, 60651, 60653 96...... 60161 255...... 59784 97...... 60161 Proposed Rules: 98...... 60161 39 ...... 59310, 59826, 59827, 130...... 60161, 61005 59829, 59830, 60047, 60049, 310...... 61007 60183, 60184, 60186, 60188, 331...... 61009 60189, 60191, 60193, 60807, 381...... 61007, 61009 60808, 60810, 60813 417...... 61007 71 ...... 60051, 60315, 60460, Proposed Rules: 60461, 60462, 60814 94...... 61036 73...... 60463 304...... 59304 255...... 59313, 60195 ii Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Reader Aids

15 CFR 29 CFR 40 CFR 22...... 60664 Proposed Rules: 2200...... 61011 52 ...... 59284, 59995, 59996, 23...... 60664 303...... 59829 2204...... 59568 60784, 61016 24...... 60664 960...... 59317 4001...... 60426 58...... 59813 25...... 59293 4006...... 60426 62...... 60785 26...... 60664 16 CFR 4022...... 60426 69...... 61204 27...... 60664 42...... 59583 1615...... 60163 4041...... 60426 80...... 59998, 60132 61...... 59583 1616...... 60163 4044...... 61012 81...... 60001 4050...... 60426 123...... 61170 64...... 60034 73...... 59605, 60664 17 CFR 180...... 60660 30 CFR 233...... 61173 74...... 60025, 60664 Proposed Rules: 76...... 61016, 61034 47...... 60984 247...... 60962 3...... 59624 78...... 60664 870...... 60138 260...... 59287 32...... 59624 80...... 60664 914...... 59569 271...... 61175 33...... 59624 87...... 60664 938...... 60169 721...... 59579 90...... 60664 946...... 60658 Proposed Rules: 18 CFR 95...... 60664 Proposed Rules: 52 ...... 59331, 60052, 60318 4...... 59802 58...... 59840 97...... 60664 375...... 59802 50...... 60673 101...... 60664 707...... 59639 60...... 61065 62...... 60817 Proposed Rules: 19 CFR 874...... 59639 63 ...... 60566, 60674, 61065 1...... 60750 20...... 60199 101...... 60164 31 CFR 79...... 60675 122...... 60164 80...... 60052 21...... 60199, 60750 1...... 60781 141...... 59388, 59486 74...... 60199, 60750 20 CFR 142...... 59388, 59486 76...... 61065 32 CFR 416...... 59812 260...... 59332 90...... 60199 285...... 61013 36...... 59842 Proposed Rules: 268...... 60465 404...... 60672 311...... 59578 300...... 60058, 60199 Proposed Rules: 48 CFR 41 CFR 21 CFR 199...... 61058 1515...... 60664 105±60...... 60014 1552...... 60664 173...... 59281 33 CFR Proposed Rules: 16...... 60614 42 CFR 510...... 60781 100...... 60177, 60178 225...... 59641 520...... 60656 165...... 60178 424...... 59818 252...... 59641 Proposed Rules: 558 ...... 60657, 60781, 61011 43 CFR 900...... 60614 100...... 60197 49 CFR 11...... 60457 Proposed Rules: 1860...... 59820 199...... 59297 201...... 61041 36 CFR 3710...... 59821 385...... 60035 514...... 59830 Proposed Rules: Proposed Rules: 600...... 59386 7...... 60815 Proposed Rules: 4700...... 60467 350...... 60817 606...... 59386 701...... 61070 37 CFR 44 CFR 24 CFR Proposed Rules: 64...... 59290, 60662 50 CFR 203...... 60124 2...... 59640 17...... 59605 206...... 60124 3...... 59640 46 CFR 679 ...... 59298, 59623, 60182, 60667 25 CFR 38 CFR Proposed Rules: 10...... 60122 660...... 60788 Proposed Rules: 17...... 60783 15...... 60122 Proposed Rules: 11...... 61057 21...... 59579 27...... 60939 17...... 59334, 60676 Proposed Rules: 216...... 61077 26 CFR 21...... 60464 47 CFR 222...... 59335 1...... 60165 1...... 59822, 60025 600...... 59386 Proposed Rules: 39 CFR 5...... 60664 648...... 60676 1...... 60196 111...... 60180, 61014 21...... 60025, 60664 679 ...... 59844, 60060, 60677 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Reader Aids iii

REMINDERS requirements; published comments due by 11- Original jurisdiction cases; The items in this list were 11-14-97 17-97; published 10-20- delegation of authority, editorially compiled as an aid TRANSPORTATION 97 etc.; comments due by to Federal Register users. DEPARTMENT Marine mammals: 11-17-97; published 9-16- Inclusion or exclusion from Federal Aviation Endangered fish or wildlifeÐ 97 this list has no legal Administration North Atlantic right whale SOCIAL SECURITY significance. Airworthiness directives: protection; comments ADMINISTRATION Pratt & Whitney; correction; due by 11-18-97; Social security benefits and published 11-14-97 published 11-3-97 supplemental security RULES GOING INTO DEFENSE NUCLEAR income: EFFECT NOVEMBER 14, FACILITIES SAFETY BOARD RULES GOING INTO Federal old age, survivors 1997 Freedom of Information Act; and disability insuranceÐ EFFECT NOVEMBER 15, implementation; comments 1997 Circuit court law; AGRICULTURE due by 11-20-97; published application; comments DEPARTMENT 10-21-97 due by 11-17-97; Agricultural Marketing COMMERCE DEPARTMENT ENVIRONMENTAL published 9-18-97 National Oceanic and Service PROTECTION AGENCY STATE DEPARTMENT Raisins produced from grapes Atmospheric Administration Air pollution, hazardous; Freedom of Information Act; grown in California; Marine mammals: national emission standards: implementation: published 11-13-97 Commercial fishing Steel pickling facilities; authorizationsÐ comments due by 11-17- Information and records ENVIRONMENTAL availability; time limits for Atlantic large whale take 97; published 9-18-97 PROTECTION AGENCY responding to and reduction plan; Air programs; approval and Air pollution; standards of consideration of requests implementation; promulgation; State plans performance for new for expedited processing; published 7-22-97 for designated facilities and stationary sources: comments due by 11-17- pollutants: Medical waste incinerators; 97; published 9-17-97 published 9-15-97 COMMENTS DUE NEXT New Mexico; comments due by 11-20-97; published TRANSPORTATION Water pollution control: WEEK 10-21-97 DEPARTMENT National pollutant discharge New Mexico et al.; Coast Guard elimination system; State AGRICULTURE comments due by 11-20- Merchant marine officers and programsÐ DEPARTMENT 97; published 10-21-97 seamen: Michigan; published 11- Agricultural Marketing Air quality implementation Tankermen and persons in 14-97 Service plans; approval and charge of dangerous FEDERAL LABOR Dairy products: grading, promulgation; various liquids and liquefied gases RELATIONS AUTHORITY inspection, and standards: States: transfers; qualificationsÐ Freedom of Information Act; Fee increases; comments Pennsylvania; comments Compliance date delayed implementation; published due by 11-17-97; due by 11-18-97; and comment request; 11-14-97 published 10-16-97 published 9-23-97 comments due by 11- HEALTH AND HUMAN AGRICULTURE Texas; comments due by 17-97; published 9-17- SERVICES DEPARTMENT DEPARTMENT 11-17-97; published 10- 97 Food and Drug Animal and Plant Health 17-97 Ports and waterways safety: Administration Inspection Service Virginia; comments due by Mississippi River and Animal drugs, feeds, and Interstate transportation of 11-20-97; published 10- Mississippi River Gulf related products: animals and animal products 21-97 Outlet; port access routes; Carbarsone and bacitracin (quarantine): FEDERAL comments due by 11-19- zinc; published 11-14-97 Brucellosis in cattle and COMMUNICATIONS 97; published 8-21-97 bisonÐ COMMISSION HEALTH AND HUMAN TRANSPORTATION Radio stations; table of SERVICES DEPARTMENT State and area DEPARTMENT classifications; assignments: Computer reservation systems, Public Health Service comments due by 11- Florida; comments due by carrier owned Grants: 17-97; published 9-16- 11-17-97; published 10-3- Protection and advocacy for 97 97 Expiration date extension; comments due by 11-18- individuals with mental COMMERCE DEPARTMENT HOUSING AND URBAN illness program; 97; published 11-3-97 National Oceanic and DEVELOPMENT requirements; published Truth in airfares; comments Atmospheric Administration DEPARTMENT 10-15-97 Public and Indian Housing: due by 11-17-97; published Fishery conservation and 9-16-97 OCCUPATIONAL SAFETY management: Reasonable revitalization AND HEALTH REVIEW Magnuson Act provisions potential assessment of TRANSPORTATION COMMISSION public housing required by DEPARTMENT Observer health and Practice and procedure: law; comments due by safety; comments due Federal Aviation 11-21-97; published 9-22- E-Z Trial pilot program by 11-21-97; published Administration 97 implementation and 10-28-97 Air traffic operating and flight simplified proceedings for Northeastern United States INTERIOR DEPARTMENT rules, etc.: adjudicative process; CFR fisheriesÐ Fish and Wildlife Service Anchorage, AK; terminal correction New England Fishery Hunting and fishing: area description revised; Correction; published 11- Management Council; Refuge-specific regulations; comments due by 11-17- 14-97 hearings; comments comments due by 11-17- 97; published 10-1-97 POSTAL SERVICE due by 11-17-97; 97; published 10-16-97 Airworthiness directives: Domestic Mail Manual: published 10-15-97 MERIT SYSTEMS Airbus; comments due by Nonprofit standard mail rate Summer flounder, scup, PROTECTION BOARD 11-17-97; published 10- matter; eligibility and Black Sea bass; Practices and procedures: 17-97 iv Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Reader Aids

Boeing; comments due by by 11-19-97; published 8- Rhode Island, as the ``David S. 588/P.L. 105±75 11-17-97; published 9-17- 13-97 B. Champagne Post Office To provide for the expansion 97 Building''. (Nov. 10, 1997; 111 of the Eagles Nest Wilderness CFM International; Stat. 1455) LIST OF PUBLIC LAWS within the Arapaho National comments due by 11-18- H.J. Res. 105/P.L. 105±71 Forest and the White River 97; published 9-19-97 This is a continuing list of National Forest, Colorado, to Fokker; comments due by Making further continuing public bills from the current appropriations for the fiscal include land known as the 11-20-97; published 10- session of Congress which Slate Creek Addition. (Nov. 21-97 year 1998, and for other have become Federal laws. It purposes. (Nov. 10, 1997; 111 12, 1997; 111 Stat. 1462) Short Brothers plc; may be used in conjunction Stat. 1456) S. 589/P.L. 105±76 comments due by 11-17- with ``P L U S'' (Public Laws 97; published 10-17-97 Update Service) on 202±523± S. 1227/P.L. 105±72 To provide for a boundry Sikorsky; comments due by 6641. This list is also To amend title I of the adjustment and land 11-17-97; published 9-18- available online at http:// Employee Retirement Income conveyance involving the 97 www.nara.gov/nara/fedreg/ Security Act of 1974 to clarify Raggeds Wilderness, White Class D airspace; comments fedreg.html. treatment of investment River National Forest, due by 11-17-97; published managers under such title. Colorado, to correct the The text of laws is not 10-17-97 (Nov. 10, 1997; 111 Stat. effects of earlier erroneous published in the Federal Class E airspace; comments 1457) land surveys. (Nov. 12, 1997; Register but may be ordered due by 11-17-97; published 111 Stat. 1463) 10-17-97 in ``slip law'' (individual H.R. 2464/P.L. 105±73 pamphlet) form from the TREASURY DEPARTMENT To amend the Immigration S. 591/P.L. 105±77 Superintendent of Documents, and Nationality Act to exempt Comptroller of the Currency U.S. Government Printing To transfer the Dillon Ranger Fees assessment; national internationally adopted children District in the Arapaho Office, Washington, DC 20402 10 years of age or younger and District of Columbia (phone, 202±512±2470). The National Forest to the White banks; comments due by from the immunization River National Forest in the text will also be made requirement in sec tion 11-20-97; published 10-21- available on the Internet from State of Colorado. (Nov. 12, 97 212(a)(1)(A)(ii) of such Act. 1997; 111 Stat. 1465) GPO Access at http:// (Nov. 12, 1997; 111 Stat. TREASURY DEPARTMENT www.access.gpo.gov/suÐdocs/. 1459) H.R. 2264/P.L. 105±78 Internal Revenue Service Some laws may not yet be Income taxes: available. S. 587/P.L. 105±74 Departments of Labor, Health and Human Services, and Farming business, property To require the Secretary of Education, and Related produced; cross-reference; H.R. 2013/P.L. 105±70 the Interior to exchange Agencies Appropriations Act, comments due by 11-20- To designate the facility of the certain lands located in 1998 (Nov. 13, 1997; 111 97; published 8-22-97 United States Postal Service Hinsdale County, Colorado. Stat. 1467) Qualified nonrecourse located at 551 Kingstown (Nov. 12, 1997; 111 Stat. financing; comments due Road in South Kingstown, 1460) Last List November 12, 1997