Pages 49349±49638 Vol. 64 9±13±99 eDt 8JN9 03 e 0 99Jt134 O000Fm001Ft41 ft41 :F\M1SW.X fm1PsN:13SEWS pfrm11 E:\FR\FM\13SEWS.XXX Sfmt4710 Fmt4710 Frm00001 PO00000 Jkt183247 20:35Sep10, 1999 VerDate 18-JUN-99 No. 176 federal register September 13,1999 Monday 1 II Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999
The FEDERAL REGISTER is published daily, Monday through SUBSCRIPTIONS AND COPIES Friday, except official holidays, by the Office of the Federal Register, National Archives and Records Administration, PUBLIC Washington, DC 20408, under the Federal Register Act (44 U.S.C. Subscriptions: Ch. 15) and the regulations of the Administrative Committee of Paper or fiche 202–512–1800 the Federal Register (1 CFR Ch. I). The Superintendent of Assistance with public subscriptions 512–1806 Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official edition. General online information 202–512–1530; 1–888–293–6498 Single copies/back copies: The Federal Register provides a uniform system for making available to the public regulations and legal notices issued by Paper or fiche 512–1800 Federal agencies. These include Presidential proclamations and Assistance with public single copies 512–1803 Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public Paper or fiche 523–5243 interest. Assistance with Federal agency subscriptions 523–5243 Documents are on file for public inspection in the Office of the Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see http://www.nara.gov/ fedreg. The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases on GPO Access, a service of the U.S. Government Printing Office. The online edition of the Federal Register is issued under the authority of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day the Federal Register is published and it includes both text and graphics from Volume 59, Number 1 (January 2, 1994) forward. GPO Access users can choose to retrieve online Federal Register documents as TEXT (ASCII text, graphics omitted), PDF (Adobe Portable Document Format, including full text and all graphics), or SUMMARY (abbreviated text) files. Users should carefully check retrieved material to ensure that documents were properly downloaded. On the World Wide Web, connect to the Federal Register at http:/ /www.access.gpo.gov/nara. Those without World Wide Web access can also connect with a local WAIS client, by Telnet to swais.access.gpo.gov, or by dialing (202) 512-1661 with a computer and modem. When using Telnet or modem, type swais, then log in as guest with no password. For more information about GPO Access, contact the GPO Access User Support Team by E-mail at [email protected]; by fax at (202) 512–1262; or call (202) 512–1530 or 1–888–293–6498 (toll free) between 7 a.m. and 5 p.m. Eastern time, Monday–Friday, except Federal holidays. The annual subscription price for the Federal Register paper edition is $555, or $607 for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $220. Six month subscriptions are available for one-half the annual rate. The charge for individual copies in paper form is $8.00 for each issue, or $8.00 for each group of pages as actually bound; or $1.50 for each issue in microfiche form. All prices include regular domestic postage and handling. International customers please add 25% for foreign handling. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard or Discover. Mail to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250–7954. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 64 FR 12345.
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Contents Federal Register Vol. 64, No. 176
Monday, September 13, 1999
Agricultural Marketing Service Consumer Product Safety Commission RULES NOTICES Cherries (sweet) grown in— Meetings; Sunshine Act, 49470 Washington, 49349–49352 Potatoes (Irish) grown in— Customs Service California and Oregon, 49352–49355 PROPOSED RULES Soybean promotion and research order; referendum, 49349 Merchandise entry: NOTICES Anticounterfeiting Consumer Protection Act; Customs Agency information collection activities: entry documentation, 49423–49424 Proposed collection; comment request, 49438–49439 Defense Nuclear Facilities Safety Board Agriculture Department NOTICES See Agricultural Marketing Service Meetings; Sunshine Act, 49470 See Federal Crop Insurance Corporation Drug Enforcement Administration See Natural Resources Conservation Service NOTICES See Rural Utilities Service Applications, hearings, determinations, etc.: Jackson, Frank D., M.D., 49506–49507 Alcohol, Tobacco and Firearms Bureau KK Pharmacy, 49507–49510 RULES Novartis Pharmaceutical Corp., 49510–49511 Alcoholic beverages: Wine; labeling and advertising— Education Department Johannisberg Riesling; additional grape varieties, NOTICES 49385–49388 Agency information collection activities: Proposed collection; comment request, 49470–49471 Appalachian States Low-Level Radioactive Waste Commission Employment and Training Administration NOTICES NOTICES Meetings, 49440 Agency information collection activities: Proposed collection; comment request, 49512–49513 Christopher Columbus Quincentenary Jubilee Grants and cooperative agreements; availability, etc.: Commission Job Training Partnership Act— RULES Title IV-Pilot and Demonstration Program, 49513– CFR Chapter removed; CFR correction, 49409 49521 Workforce Investment Act— Coast Guard Indian and Native American Employment and Training RULES Programs, 49522–49528 Drawbridge operations: Energy Department Connecticut, 49391–49392 See Federal Energy Regulatory Commission New York, 49391 See Southwestern Power Administration Ports and waterways safety: NOTICES Gulf of Alaska, Narrow Cape, Kodiak Island, AK; safety Meetings: zone, 49394–49395 Environmental Management Site-Specific Advisory Hudson River, NY; safety zone, 49393–49394 Board— New York Harbor, NY, 49392–49393 Los Alamos National Laboratory, NM, 49471 PROPOSED RULES Pantex Plant, TX, 49472–49473 Ports and waterways safety: Savannah River Site, SC, 49472 Detroit River, MI; safety zone Withdrawn, 49424 Environmental Protection Agency RULES Commerce Department Air quality implementation plans; approval and See Export Administration Bureau promulgation; various States: See Foreign-Trade Zones Board California, 49398–49400 See International Trade Administration Illinois, 49400–49403 See National Oceanic and Atmospheric Administration Kentucky, 49404–49409 Tennessee, 49396–49398 Committee for the Implementation of Textile Agreements PROPOSED RULES NOTICES Air quality implementation plans; approval and Textile and apparel categories: promulgation; various States: Illegal transshipment; entry denial Illinois, 49425 Companies list from which Customs shall deny entry to Kentucky, 49425–49426 textiles and textile products; removals, 49469 Tennessee, 49425
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NOTICES Federal Energy Regulatory Commission Agency information collection activities: NOTICES Proposed collection; comment request, 49484–49486 Agency information collection activities: Air quality; prevention of significant deterioration (PSD): Proposed collection; comment request, 49473–49474 Determinations— Hydroelectric applications, 49475–49481 American Ref-Fuel Co. of Essex County, NJ, et al., Meetings; Sunshine Act, 49481–49483 49486–49491 Applications, hearings, determinations, etc.: Clarksdale Public Utilities Commission, 49474 Executive Office of the President Coalition for Fair and Equitable Regulation of Docks on See Trade Representative, Office of United States Lake of the Ozarks, Inc., 49474 Export Administration Bureau Delmarva Power & Light Co., 49474 RULES Texas Gas Transmission Corp., 49474–49475 Export administration regulations: Transcontinental Gas Pipe Line Corp., 49475 Chemical Weapons Convention; implementation Trunkline Gas Co., 49475 States Parties additions; licensing policy clarification, 49380–49382 Federal Mine Safety and Health Review Commission Libya; reexports of foreign registered aircraft subject to NOTICES agency regulations, 49382–49383 Meetings; Sunshine Act, 49528–49529 Federal Aviation Administration Federal Reserve System RULES NOTICES Airworthiness standards: Federal Open Market Committee: Special conditions— Domestic policy directives, 49495 New Piper Aircraft, Inc. Meridian PA-46-400TP airplane, 49365–49367 Fish and Wildlife Service Soloy Corp. Model Pathfinder 21 airplane, 49367– NOTICES 49373 Endangered and threatened species: Class E airspace, 49373–49377 Recovery plans— Standard instrument approach procedures, 49377–49380 Giant garter snake, 49497–49498 PROPOSED RULES Airworthiness directives: Food and Drug Administration Airbus, 49420–49422 RULES Saab, 49418–49420 Animal drugs, feeds, and related products: Airworthiness standards: New drug applications— Special conditions— Nicarbazin and bambermycins, 49383–49385 Cessna Aircraft Co. Model 525A airplane, 49413–49418 Organization, functions, and authority delegations: Center for Drug Evaluation and Research; technical Federal Communications Commission amendment, 49383 PROPOSED RULES NOTICES Common carrier services: Food additive petitions: Telecommunications Act of l996; implementation— American Ingredients Co., 49495–49496 Competitive networks promotion in local Engelhard Corp., 49496 telecommunications markets, 49426–49427 Reports and guidance documents; availability, etc: NOTICES Abbreviated reports and synopses submission in support Meetings: of marketing applications; industry guidance, 49496– North American Numbering Council, 49491–49492 49497 Federal Crop Insurance Corporation Foreign-Trade Zones Board NOTICES Crop insurance: NOTICES Watermelon pilot program; suspension, 49439 Applications, hearings, determinations, etc.: Massachusetts Federal Election Commission J. Baker, Inc.; apparel, footwear, and accessories RULES warehousing/distribution facilities, 49440–49441 Presidential primary and general election candidates; New Jersey public financing: Firmenich, Inc.; flavor and fragrance products Eligibility requirements and funding expenditure and manufacturing facilities, 49441–49442 repayment procedures, 49355–49365 Givaudan Roure Corp.; flavor and fragrance products manufacturing facilities, 49442 Federal Emergency Management Agency NOTICES Health and Human Services Department Disaster and emergency areas: See Food and Drug Administration Illinois, 49492 See Program Support Center Minnesota, 49492 Nebraska, 49492–49493 Immigration and Naturalization Service Texas, 49493–49494 NOTICES Utah, 49494 Temporary protected status program designations: Wisconsin, 49494–49495 Somalia, 49511–49512
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Information Security Oversight Office Mexico and United States, International Boundary and RULES Water Commission Classified national security information: See International Boundary and Water Commission, United Multi-agency declassification issues; uniform referral States and Mexico standard, 49388–49391 Mine Safety and Health Administration Interior Department RULES See Fish and Wildlife Service Coal and metal and nonmetal mine safety and health: See Land Management Bureau Occupational noise exposure— See National Park Service Health standards, 49547–49634 Health standards; correction, 49635–49637 Internal Revenue Service Mine Safety and Health Federal Review Commission NOTICES See Federal Mine Safety and Health Review Commission Agency information collection activities: Proposed collection; comment request, 49538–49540 National Archives and Records Administration Electronic transcript delivery system; agency pilot; See Information Security Oversight Office comment request, 49540–49542 National Highway Traffic Safety Administration International Boundary and Water Commission, United NOTICES States and Mexico Meetings: NOTICES Research and development programs, 49535–49536 Environmental statements; notice of intent: El Paso-Las Cruces regional sustainable water project, National Oceanic and Atmospheric Administration Sierra and Dona Ana Counties, NM, and El Paso PROPOSED RULES County, TX; correction, 49528 Fishery conservation and management: Northeastern United States fisheries— International Trade Administration Northeast multispecies, 49427–49437 NOTICES NOTICES Antidumping: Meetings: Antifriction bearings (other than tapered roller bearings) Gulf of Mexico Fishery Management Council, 49467 and parts from— South Atlantic Fishery Management Council, 49467– Various countries, 49442–49444 49468 Brass sheet and strip from— Permits: Sweden, 49444–49446 Exempted fishing, 49468–49469 Manganese metal from— China, 49447–49460 National Park Service Countervailing duties: NOTICES Industrial phosphoric acid from— Agency information collection activities: Israel, 49460–49464 Proposed collection; comment request, 49500–49501 Sugar from— Environmental statements; availability, etc.: European Community, 49464–49467 Effigy Mounds National Monument, IA, 49501 Whiskeytown-Shasta-Trinity National Recreation Area, Justice Department CA, 49501–49502 See Drug Enforcement Administration Environmental statements; notice of intent: See Immigration and Naturalization Service Channel Islands National Park, CA, 49502–49503 Denali National Park and Preserve, AK, 49503 Mining plans of operations; availability, etc.: Labor Department Lake Meredith National Recreation Area, TX, 49503– See Employment and Training Administration 49504 See Mine Safety and Health Administration National Register of Historic Places: Pending nominations, 49504 Land Management Bureau Native American human remains and associated funerary NOTICES objects: Environmental statements; notice of intent: South Dakota State Archaeological Research Center, SD; Book Cliffs Resource Area, UT, 49498–49499 inventory from Custer County, SD, 49504–49505 Meetings: State Historical Society of Wisconsin, WI— Resource Advisory Councils— Ho-Chunk inventory, 49505 Eastern Montana, 49499 Ho-Chunk Stealer Bundle, 49505–49506 Organization, functions, and authority delegations: University of Pennsylvania Museum of Archaeology and Great Falls, MT; Field Office change to Oil and Gas Field Anthropology, PA— Station, 49499 Inventory, 49506 Realty actions; sales, leases, etc.: Wyoming, 49499–49500 Natural Resources Conservation Service NOTICES Legal Services Corporation Conservation Practices National Handbook: NOTICES Conservation practice standards, new or revised; Meetings; Sunshine Act, 49528 comment request, 49439–49440
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Nuclear Regulatory Commission Textile Agreements Implementation Committee PROPOSED RULES See Committee for the Implementation of Textile Rulemaking petitions: Agreements Nevada, 49410–49413 NOTICES Trade Representative, Office of United States Applications, hearings, determinations, etc.: NOTICES Southern California Edison Co., 49529–49530 Meetings: Vermont Yankee Nuclear Power Corp., 49530 Industry Sector Advisory Committees— Office of United States Trade Representative Small and Minority Business, 49535 See Trade Representative, Office of United States Transportation Department Postal Rate Commission See Coast Guard NOTICES See Federal Aviation Administration Meetings: See National Highway Traffic Safety Administration Technical and settlement conference, 49530 See Research and Special Programs Administration See Surface Transportation Board Program Support Center NOTICES NOTICES Aviation proceedings: Agency information collection activities: Agreements filed; weekly receipts, 49535 Proposed collection; comment request, 49497 Public Debt Bureau Treasury Department NOTICES See Alcohol, Tobacco and Firearms Bureau Agency information collection activities: See Customs Service Proposed collection; comment request, 49542–49543 See Internal Revenue Service See Public Debt Bureau Public Health Service NOTICES See Food and Drug Administration Agency information collection activities: Submission for OMB review; comment request, 49537– Research and Special Programs Administration 49538 NOTICES Hazardous materials: United States Information Agency Exemption applications delayed; list, 49536–49537 NOTICES Art objects; importation for exhibition: Rural Utilities Service Only the Best: Masterpieces of the Calouste Gulbenkian NOTICES Museum, Lisbon, 49543 Environmental statements; availability, etc.: Still-Life Paintings from the Netherlands (1550-1720), Brazos Electric Power Cooperative, Inc., 49440 49543 Securities and Exchange Commission Grants and cooperative agreements; availability, etc.: NOTICES FREEDOM Support Act/Future Leaders Exchange Applications, hearings, determinations, etc.: Program, 49543–49546 LSA Variable Series Trust et al., 49530–49533 Meetings: Public Diplomacy, U.S. Advisory Commission, 49546 Social Security Administration NOTICES Agency information collection activities: Separate Parts In This Issue Proposed collection and submission for OMB review; comment request, 49533–49535 Part II Southwestern Power Administration Mine Safety and Health Administration, Department of NOTICES Labor 49547–49634 Integrated System power rates and opportunities: Rate schedule changes; comment request, 49483–49484 Part III Mine Safety and Health Administration, Department of Surface Transportation Board Labor, 49635–49638 NOTICES Railroad operation, acquisition, construction, etc.: Mildord-Bennington Railroad Co., 49537 Reader Aids Tennessee Valley Authority Consult the Reader Aids section at the end of this issue for NOTICES phone numbers, online resources, finding aids, reminders, Meetings; Sunshine Act, 49535 and notice of recently enacted public laws.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
7 CFR 76...... 49426 923...... 49349 50 CFR 947...... 49352 1220...... 40349 Proposed Rules: 648...... 49427 10 CFR Proposed Rules: 73...... 49410 11 CFR 9003...... 49355 9004...... 49355 9008...... 49355 9032...... 49355 9033...... 49355 9034...... 49355 9035...... 49355 9036...... 49355 14 CFR 23 (2 documents) ...... 49365, 49367 71 (3 documents) ...... 49373, 4974, 49376 97 (2 documents) ...... 49377, 49378 Proposed Rules: 23...... 49413 39 (2 documents) ...... 49418, 49420 15 CFR 742...... 49380 745...... 49380 746...... 49382 19 CFR Proposed Rules: 141...... 49423 21 CFR 5...... 49383 558...... 49383 27 CFR 4...... 49385 30 CFR 56 (2 documents) ...... 49548, 49636 57 (2 documents) ...... 49548, 49636 62 (2 documents) ...... 49548, 49636 70 (2 documents) ...... 49548, 49636 71 (2 documents) ...... 49548, 49636 32 CFR 2001...... 49388 33 CFR 117 (2 documents) ...... 49391 165 (3 documents) ...... 49392, 49393, 49394 Proposed Rules: 165...... 49424 40 CFR 52 (4 documents) ...... 49396, 49398, 49400, 49404 Proposed Rules: 52 (3 documents) ...... 49425 45 CFR Ch. XXII ...... 49409 47 CFR Proposed Rules: 1...... 49426 51...... 49426 68...... 49426
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Rules and Regulations Federal Register Vol. 64, No. 176
Monday, September 13, 1999
This section of the FEDERAL REGISTER 1999. Completed forms must be Producers who certify that they where contains regulatory documents having general returned to FSA offices by fax or in engaged in the production of soybeans applicability and legal effect, most of which person no later than November 16, 1999, anytime between January 1, 1997, and are keyed to and codified in the Code of or if returned by mail must be post November 16, 1999, and who own or Federal Regulations, which is published under marked by November 16, 1999. share the ownership and risk of loss of 50 titles pursuant to 44 U.S.C. 1510. FOR FURTHER INFORMATION CONTACT: those soybeans are eligible to participate The Code of Federal Regulations is sold by Ralph L. Tapp, Chief; Marketing in the Request for Referendum. Only the Superintendent of Documents. Prices of Programs Branch, Room 2627–S; those producers who are in favor of a new books are listed in the first FEDERAL Livestock and Seed Program, AMS, referendum on the Order would REGISTER issue of each week. USDA; STOP 0251; 1400 Independence participate. Forms may be requested in person, by Avenue, SW.; Washington, DC 20250– mail, or by facsimile from October 20, 0251. Telephone number 202/720–1115. DEPARTMENT OF AGRICULTURE 1999, through November 16, 1999. SUPPLEMENTARY INFORMATION: In Individual producers and other Agricultural Marketing Service accordance with the Act (7 U.S.C. 6301 producer entities would request a et. seq.), this Notice announces the dates referendum at the county FSA office 7 CFR Part 1220 when the Request for Referendum will where FSA maintains and processes the [No. LS±99±12] be conducted and the place where producer’s administrative farm records. soybean producers may request a For the producer not participating in Notice of Opportunity to Request a referendum on the Order. The Order FSA programs, the opportunity to Soybean Referendum appears in the Code of Federal request a referendum would be Regulations at 7 CFR Part 1220. The Act AGENCY: Agricultural Marketing Service, provided at the county FSA office provides that the Secretary, 5 years after USDA. serving the county where the producer the conduct of the initial referendum, owns or rents land. Completed forms ACTION: Notice of opportunity to request shall give soybean producers the must be postmarked, faxed, or returned referendum. opportunity to request an additional in person no later than November 16, SUMMARY: The Agricultural Marketing referendum on the Order. Individual 1999. Service (AMS) is announcing that producers and other producer entities The purpose of the Request for soybean producers may request a will be provided the opportunity to Referendum is to determine whether referendum to determine if producers request a referendum, at the county FSA eligible producers favor the conduct of want a referendum on the Soybean office where FSA maintains and a referendum on the Order. Promotion and Research Order (Order) processes the producer’s administrative In accordance with the Paperwork as authorized under the Soybean farm records. For the producer not Reduction Act of 1995 [44 U.S.C. 3501 Promotion, Research, and Consumer participating in FSA programs, the et. seq.], the information collection Information Act (Act). opportunity to request a referendum requirements made in connection with If at least 10 percent (not in excess of will be provided at the county FSA the Request for Referendum have been one-fifth of which may be producers in office serving the county where the approved by the Office of Management any one State) of the 600,813 eligible producer owns or rents land. and Budget (OMB) and assigned OMB producers as determined by the Participation in the Request for control number 0581–0093. Department of Agriculture (Department) Referendum is not mandatory. Authority: 7 U.S.C. 6301–6311. nationwide participate in the Request On August 20, 1999, the Department Dated: September 8, 1999. for Referendum, a referendum will be published in the Federal Register (64 Barry L. Carpenter, held within 1 year from that FR 45413) a final rule that sets forth Deputy Administrator, Livestock and Seed determination. If results of the Request procedures the Department will use in Program. for Referendum indicate that a conducting the Request for Referendum. [FR Doc. 99–23727 Filed 9–8–99; 4:04 pm] The final rule includes definitions, referendum is not supported, a BILLING CODE 3410±02±P referendum would not be conducted. provisions for supervising the process DATES: Soybean producers may request for requesting a referendum, eligibility, a referendum during a 4-week period certification procedures for requesting DEPARTMENT OF AGRICULTURE beginning on October 20, 1999, and the required forms, where the Request ending on November 16, 1999. for Referendum will be conducted, Agricultural Marketing Service Producers who certify that they were counting forms, reporting results, and 7 CFR Part 923 engaged in the production of soybeans disposition of the forms and records. anytime between January 1, 1997, and Since the Request for Referendum will [Docket No. FV99±923±1 FIR] November 16, 1999, and who own or be conducted at the county FSA offices, share the ownership and risk of loss of FSA employees will assist AMS by Sweet Cherries Grown in Designated those soybeans are eligible to participate determining eligibility, counting ballots, Counties in Washington; Change in in the Request for Referendum. and reporting results. Pack Requirements Forms may be obtained by mail, fax, Pursuant to the Act the Department is AGENCY: Agricultural Marketing Service, or in person from the Farm Service conducting the required Request for USDA. Agency (FSA) county offices from Referendum from October 20, 1999, ACTION: Final rule. October 20, 1999, through November 16, through November 16, 1999.
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SUMMARY: The Department of The Department is issuing this rule in percentage of undersize; but the total of Agriculture (Department) is adopting, as conformance with Executive Order undersize of the entire lot shall be a final rule without change, the 12866. within the tolerance specified. provisions of an interim final rule This rule has been reviewed under The following table shows the row changing the pack requirements Executive Order 12988, Civil Justice count/row size designations prior to this currently prescribed under the Reform. This rule is not intended to change: Washington cherry marketing order. The have retroactive effect. This rule will marketing order regulates the handling not preempt any State or local laws, TABLE of sweet cherries grown in designated regulations, or policies, unless they counties in Washington and is present an irreconcilable conflict with Column 2 administered locally by the Washington this rule. Column 1, row count/row size diameter (inches) Cherry Marketing Committee The Act provides that administrative (Committee). This rule finalizes the proceedings must be exhausted before parties may file suit in court. Under 9 ...... 75/64 establishment of two additional row 1 section 608c(15)(A) of the Act, any 9 ¤2 ...... 71/64 count/row size designations for 10 ...... 67/64 handler subject to an order may file Washington cherries when containers 101¤2 ...... 64/64 with the Secretary a petition stating that destined for fresh market channels are 11 ...... 61/64 the order, any provision of the order, or 1 marked with a row count/row size 11 ¤2 ...... 57/64 any obligation imposed in connection designation. The two additional row 12 ...... 54/64 with the order is not in accordance with count/row size designations are 8 row law and request a modification of the (84/64 inches in diameter) and 81⁄2 row The Committee meets prior to and order or to be exempted therefrom. A during each season to consider (79/64 inches in diameter). This change handler is afforded the opportunity for will allow the Washington cherry recommendations for modification, a hearing on the petition. After the suspension, or termination of the industry to further differentiate cherries hearing the Secretary would rule on the by row count/row size. The change is regulatory requirements for Washington petition. The Act provides that the cherries which have been issued on a intended to provide handlers more district court of the United States in any marketing flexibility, clarify the choices continuing basis. Committee meetings district in which the handler is an are open to the public and interested available to buyers, and improve returns inhabitant, or has his or her principal to producers. persons may express their views at these place of business, has jurisdiction to meetings. The Department reviews EFFECTIVE DATE: October 13, 1999. review the Secretary’s ruling on the Committee recommendations and petition, provided an action is filed not information submitted by the FOR FURTHER INFORMATION CONTACT: later than 20 days after the date of the Teresa L. Hutchinson, Northwest Committee and other available entry of the ruling. information, and determines whether Marketing Field Office, Marketing Order This rule continues in effect changes modification, suspension, or Administration Branch, Fruit and to the pack requirements currently termination of the regulatory Vegetable Programs, AMS, USDA, 1220 prescribed under the Washington cherry requirements would tend to effectuate SW Third Avenue, Room 369, Portland, marketing order by establishing two Oregon 97204–2807; telephone: (503) additional row count/row size the declared policy of the Act. 326–2724, Fax: (503) 326–7440; or designations for Washington cherries At its May 13, 1999, meeting, the George Kelhart, Technical Advisor, when containers destined for fresh Committee unanimously recommended Marketing Order Administration market channels are marked with a row changing the pack requirements Branch, Fruit and Vegetable Programs, count/row size designation. prescribed under the Washington cherry AMS, USDA, Room 2525-S, P.O. Box Section 923.52 of the order authorizes marketing order. The Committee 96456, Washington, DC 20090–6456; the issuance of regulations for grade, recommended establishing two telephone: (202) 720–2491, Fax: (202) size, quality, maturity, pack, and additional row count/row size 720–5698. Small businesses may request container for any variety or varieties of designations for Washington cherries information on complying with this cherries grown in any district or when containers are marked with a row regulation by contacting Jay Guerber, districts of the production area during count/row size designation. The Marketing Order Administration any period or periods. Section 923.53 additional row count/row size Branch, Fruit and Vegetable Programs, further authorizes the modification, designations are 8 row (84/64 inches in 1 AMS, USDA, P.O. Box 96456, Room suspension, or termination of diameter) and 8 ⁄2 row (79/64 inches in 2525-S, Washington, DC 20090–6456; regulations issued under 923.52. diameter) and are shown in the telephone: (202) 720–2491, Fax: (202) Minimum grade, size, quality, following revised table from 923.322(e): 720–5698, or E-mail: maturity, container, and pack [email protected]. requirements for cherries regulated TABLE under the order are specified in 923.322. SUPPLEMENTARY INFORMATION: This rule Paragraph (e) of that section provides Column 2 is issued under Marketing Agreement Column 1, row count/row size diameter that when containers of cherries are (inches) No. 134 and Marketing Order No. 923 (7 marked with a row count/row size CFR part 923), regulating the handling designation the row count/row size 8 ...... 84/64 of sweet cherries grown in designated marked shall be one of those shown in 81¤2 ...... 79/64 counties in Washington, hereinafter Column 1 of the following table and that 9 ...... 75/64 referred to as the ‘‘order.’’ The at least 90 percent, by count, of the 91¤2 ...... 71/64 marketing agreement and order are cherries in any lot shall not be smaller 10 ...... 67/64 1 effective under the Agricultural than the corresponding diameter shown 10 ¤2 ...... 64/64 11 ...... 61/64 Marketing Agreement Act of 1937, as in Column 2 of the table: Provided, That 111¤2 ...... 57/64 amended, (7 U.S.C. 601–674), the content of individual containers in 12 ...... 54/64 hereinafter referred to as the ‘‘Act.’’ the lot are not limited as to the
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When the row count/row sizes were producers are defined as those having Committee believes that differentiation modified in 1993, cherry sizes as large annual receipts of less than $500,000. by row count/row size will provide as 8 and 81⁄2 row were not produced. Currently, about 93 percent of the handlers more marketing flexibility and The new varieties developed since that Washington cherry handlers ship under clarify the choices available to buyers. time tend to size larger. Further $5,000,000 worth of cherries and 7 By allowing handlers the opportunity to differentiation by row count/row size percent ship over $5,000,000 worth on differentiate these cherries with the will allow handlers and producers to an annual basis. In addition, based on larger row count/row size designations, benefit from the extra effort and costs acreage, production, and producer the Committee believes that producers’ involved in producing and marketing prices reported by the National returns will improve. larger sized cherries, and accrue the Agricultural Statistics Service, and the The Committee anticipates that this premium prices generally received for total number of Washington cherry rule will not negatively impact small large-sized cherries. producers, the average annual grower businesses. This rule will allow Price data shows an increase of $2 per revenue is approximately $100,000. In handlers to market larger cherries in container for each row count/row size view of the foregoing, it can be containers designated with the larger designation increase. Therefore, it is concluded that the majority of handlers row counts/row sizes. Accurate anticipated that 8 row and 81⁄2 row and producers of Washington cherries identification of the sizes packed in the cherries will receive an additional $2 may be classified as small entities. containers is expected to benefit buyers. and $4 per container, respectively, over This rule continues in effect changes Further, this rule will allow handlers 9 row cherries. While the current to the pack requirements currently greater flexibility in marketing the percentage of larger cherries produced prescribed under the Washington cherry Washington cherry crop. and shipped is small, the production of marketing order by establishing two The Committee did not discuss any large-sized cherry varieties is trending additional row count/row size alternatives to this rule, except not to upward. designations for Washington cherries allow the larger row count/row size when containers are marked with a row designations for larger cherries. This The largest row count/row size count/row size designation. was not acceptable because producers previously designated was 9 row (75/64 At its May 13, 1999, meeting, the and handlers would not be able to reap inches in diameter). Hence, handlers Committee unanimously recommended the benefits expected from further marketing cherries larger than 9 row changing the pack requirements differentiation of the larger sizes. were not able to differentiate their pack prescribed under the Washington cherry This rule will not impose any to receive the higher prices generally marketing order. The Committee additional reporting or recordkeeping received for larger-sized cherries. The recommended establishing two requirements on either small or large Committee believes that differentiation additional row count/row size cherry handlers. As with all Federal by row count/row size will provide designations for Washington cherries marketing order programs, reports and handlers more marketing flexibility and when containers destined for fresh forms are periodically reviewed to clarify the choices available to buyers. market channels are marked with a row reduce information requirements and By allowing handlers the opportunity to count/row size designation. The duplication by industry and public differentiate these cherries with the additional row count/row size sectors. In addition, as noted in the larger row count/row size designations, designations are 8 row (84/64 inches in initial regulatory flexibility analysis, the the Committee believes that producers’ diameter) and 81⁄2 row (79/64 inches in Department has not identified any returns will improve. diameter). relevant Federal rules that duplicate, Pursuant to requirements set forth in When the row count/row sizes were overlap or conflict with this rule. the Regulatory Flexibility Act (RFA), the modified in 1993, cherry sizes as large Further, the Committee’s meeting was Agricultural Marketing Service (AMS) as 8 and 81⁄2 row were not produced. widely publicized throughout the has considered the economic impact of The new varieties developed since that Washington cherry industry and all this action on small entities. time tend to size larger. Further interested persons were invited to Accordingly, the AMS has prepared this differentiation by row count/row size attend the meeting and participate in final regulatory flexibility analysis. cherries will allow handlers and Committee deliberations. Like all The purpose of the RFA is to fit producers to benefit from the extra effort Committee meetings, the May 13, 1999, regulatory actions to the scale of and costs involved in producing and meeting was a public meeting and all business subject to such actions in order marketing larger-sized cherries, and entities, both large and small, were able that small businesses will not be unduly accrue the premium prices generally to express their views on this issue. The or disproportionately burdened. received for large-sized cherries. Committee itself is composed of 15 Marketing orders issued pursuant to the Price data shows an increase of $2 per members, of which 5 are handlers and Act, and the rules issued thereunder, are container for each row count/row size 10 are producers, the majority of whom unique in that they are brought about designation increase. Therefore, it is are small entities. through group action of essentially anticipated that 8 row and 81⁄2 row An interim final rule concerning this small entities acting on their own cherries will receive an additional $2 action was published in the Federal behalf. Thus, both statutes have small and $4 per container, respectively, over Register on June 24, 1999. A copy of the entity orientation and compatibility. 9 row cherries. While the current rule was mailed to the Committee’s There are approximately 70 handlers percentage of larger cherries is small, administrative office for distribution to of Washington cherries who are subject the production of large-sized cherry producers and handlers. In addition, the to regulation under the marketing order varieties is trending upward. rule was made available through the and approximately 1,100 cherry The largest row count/row size Internet by the Office of the Federal producers in the regulated area. Small previously designated was 9 row (75/64 Register. That rule provided for a 60-day agricultural service firms have been inches in diameter). Hence, handlers comment period which ended August defined by the Small Business marketing cherries larger than 9 row 23, 1999. No comments were received. Administration (13 CFR 121.601) as were not able to differentiate their pack A small business guide on complying those having annual receipts of less than to receive the higher prices generally with fruit, vegetable, and specialty crop $5,000,000, and small agricultural received for larger-sized cherries. The marketing agreements and orders may
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.196 pfrm08 PsN: 13SER1 49352 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations be viewed at the following web site: Modoc and Siskiyou Counties, any obligation imposed in connection http://www.ams.usda.gov/fv/ California, and in all Counties in with the order is not in accordance with moab.html. Any questions about the Oregon, except Malheur County, and is law and request a modification of the compliance guide should be sent to Jay administered locally by the Oregon- order or to be exempted therefrom. A Guerber at the previously mentioned California Potato Committee handler is afforded the opportunity for address in the FOR FURTHER INFORMATION (Committee). During this suspension of a hearing on the petition. After the CONTACT section. the handling regulations, reports from hearing the Secretary would rule on the After consideration of all relevant handlers will be required to obtain petition. The Act provides that the material presented, including the information necessary to administer the district court of the United States in any Committee’s recommendation, and marketing order. This rule is expected to district in which the handler is an other information, it is found that reduce industry expenses. inhabitant, or has his or her principal finalizing the interim final rule, without EFFECTIVE DATE: October 13, 1999. place of business, has jurisdiction to change, as published in the Federal FOR FURTHER INFORMATION CONTACT: review the Secretary’s ruling on the Register (64 FR 33741, June 24, 1999) Teresa L. Hutchinson, Northwest petition, provided an action is filed not will tend to effectuate the declared Marketing Field Office, Marketing Order later than 20 days after date of the entry policy of the Act. Administration Branch, Fruit and of the ruling. This rule continues in effect the Vegetable Programs, AMS, USDA, 1220 List of Subjects in 7 CFR Part 923 suspension of the handling regulations SW Third Avenue, room 369, Portland, currently prescribed under the order Cherries, Marketing agreements, Oregon 97204–2807; telephone: (503) from July 1, 1999, to June 30, 2000. This Reporting and recordkeeping 326–2724, Fax: (503) 326–7440 or rule allows the Oregon-California potato requirements. George Kelhart, Technical Advisor, industry to market potatoes without PART 923ÐSWEET CHERRIES Marketing Order Administration minimum grade, size, quality, maturity, GROWN IN DESIGNATED COUNTIES Branch, Fruit and Vegetable Programs, pack, and inspection requirements. The IN WASHINGTON AMS, USDA, room 2525–S, P.O. Box handling regulations will resume July 1, 96456, Washington, DC 20090–6456; 2000, for the 2000–2001 season and Accordingly, the interim final rule telephone: (202) 720–2491, Fax: (202) future seasons. This rule also establishes amending 7 CFR part 923 which was 720–5698. Small businesses may request handler reporting requirements during published at 64 FR 33741 on June 24, information on complying with this the same time period. Reporting 1999, is adopted as a final rule without regulation by contacting Jay Guerber, requirements will allow the Committee change. Marketing Order Administration to obtain information from handlers Dated: September 7, 1999. Branch, Fruit and Vegetable Programs, necessary to administer the order. AMS, USDA, P.O. Box 96456, room Robert C. Keeney, Section 947.52 of the order authorizes 2525–S, Washington, DC 20090–6456; the issuance of regulations for grade, Deputy Administrator, Fruit and Vegetable telephone (202) 720–2491, Fax: (202) Programs. size, quality, maturity, and pack for any 720–5698, or E-mail: variety of potatoes grown in the [FR Doc. 99–23791 Filed 9–10–99; 8:45 am] [email protected]. BILLING CODE 3410±02±P production area during any period. SUPPLEMENTARY INFORMATION: This rule Section 947.51 authorizes the is issued under Marketing Agreement modification, suspension, or DEPARTMENT OF AGRICULTURE No. 114 and Marketing Order No. 947, termination of regulations issued under both as amended (7 CFR part 947), § 947.52. Agricultural Marketing Service regulating the handling of Irish potatoes Section 947.60 provides that grown in Modoc and Siskiyou Counties whenever potatoes are regulated 7 CFR Part 947 in California, and in all counties in pursuant to § 947.52, such potatoes Oregon, except Malheur County, must be inspected by the Federal-State [Docket No. FV99±947±1 FIR] hereinafter referred to as the ‘‘order.’’ Inspection Service, and certified as Irish Potatoes Grown in Modoc and The marketing agreement and order are meeting the applicable requirements of Siskiyou Counties, California, and in effective under the Agricultural such regulations. The cost of inspection All Counties in Oregon, Except Marketing Agreement Act of 1937, as and certification is borne by handlers. Malheur County; Temporary amended, (7 U.S.C. 601–674), Section 947.80 authorizes the Suspension of Handling Regulations hereinafter referred to as the ‘‘Act.’’ Committee, with the approval of the and Establishment of Reporting The Department is issuing this rule in Secretary, to require reports and other Requirements conformance with Executive Order information from handlers that are 12866. necessary for the Committee to perform AGENCY: Agricultural Marketing Service, This rule has been reviewed under its duties. USDA. Executive Order 12988, Civil Justice Minimum grade, size, quality, ACTION: Final rule. Reform. This rule is not intended to maturity, and pack requirements for have retroactive effect. This rule will potatoes regulated under the order are SUMMARY: The Department of not preempt any State or local laws, specified in § 947.340 Handling Agriculture (Department) is adopting, as regulations, or policies, unless they Regulation [7 CFR 947.340]. This a final rule without change, the present an irreconcilable conflict with regulation, with modifications and provisions of an interim final rule this rule. exemptions for different varieties and suspending, for the 1999–2000 season The Act provides that administrative types of shipments, provides that all only, the minimum grade, size, quality, proceedings must be exhausted before potatoes grade at least U.S. No. 2; be at maturity, pack, and inspection parties may file suit in court. Under least 2 inches in diameter or weigh at requirements currently prescribed under section 608c(15)(A) of the Act, any least 4 ounces; and be not more than the Oregon-California potato marketing handler subject to an order may file moderately skinned. Additionally, order. The marketing order regulates the with the Secretary a petition stating that potatoes packed in cartons must be U.S. handling of Irish potatoes grown in the order, any provision of the order, or No. 1 grade or better, with an additional
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.197 pfrm08 PsN: 13SER1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49353 tolerance allowed for internal defects, or California potato industry could lose reporting provisions of the order that are U.S. No. 2 grade weighing at least 10 sales to other potato producing areas applicable to special purpose shipments ounces. Section 947.340 also includes that are covered by quality and when inspection and certification waivers of inspection procedures, inspection requirements. For these requirements are in place. reporting and safeguard requirements reasons, the Committee recommended Contained within § 947.340(i) of the for special purpose shipments, and a that the suspension of handling current handling regulations is a minimum quantity exemption of 19 requirements be effective for the 1999– minimum quantity exemption under hundredweight per day. 2000 season only. This will enable the which a handler may ship not more The Committee meets prior to and Committee to study the impacts of the than 19 hundredweight of potatoes on during each season to consider suspension and consider appropriate any day without regard to the inspection recommendations for modification, actions for ensuing seasons. and assessment requirements issued suspension, or termination of the This rule will enable handlers to ship under the order. The suspension of the regulatory requirements for Oregon- potatoes without regard to the minimum handling regulations removes all California potatoes which have been grade, size, quality, maturity, pack, and inspection requirements. To continue issued on a continuing basis. Committee inspection requirements for the 1999– the current minimum quantity meetings are open to the public and 2000 season only. This rule will allow exemption for assessments, a new interested persons may express their handlers to decrease costs by § 947.125 Minimum quantity exemption views at these meetings. The eliminating the costs associated with is established. This section simply Department reviews Committee inspection. This rule will not restrict continues the current minimum recommendations and information handlers from seeking inspection on a quantity exemption under which a submitted by the Committee and other voluntary basis. The Committee will handler may ship not more than 19 available information, and determines evaluate the effects of removing the hundredweight of potatoes on any day whether modification, suspension, or minimum requirements on marketing without regard to the assessment termination of the regulatory and on producer returns at its meeting requirements issued under the order. requirements would tend to effectuate next spring. Pursuant to requirements set forth in the declared policy of the Act. The suspension of the handling the Regulatory Flexibility Act (RFA), the At its February 23, 1999, meeting, the regulations will result in the elimination Agricultural Marketing Service (AMS) Committee unanimously recommended of the monthly inspection report from has considered the economic impact of suspending the handling regulations the Federal-State Inspection Service this action on small entities. and establishing handler reporting which the Committee used as a basis for Accordingly, the AMS has prepared this requirements for the 1999–2000 season. the collection of assessments from final regulatory flexibility analysis. The Committee met again on May 14, handlers. This inspection report was The purpose of the RFA is to fit 1999, to review the recommendation compiled by the Federal-State regulatory actions to the scale of made at the earlier meeting. After Inspection Service from inspection business subject to such actions in order extensive discussion, the Committee certificates. During the suspension of that small businesses will not be unduly decided not to rescind or modify their the handling regulations, reports from or disproportionately burdened. earlier recommendation to suspend handlers will be needed for the Marketing orders issued pursuant to the handling regulations. The Committee Committee to obtain information on Act, and the rules issued thereunder, are requested that this rule be effective for which to collect assessments. Therefore, unique in that they are brought about the fiscal period beginning July 1, 1999, a new § 947.180 Reports is established through group action of essentially which is also the date shipments of the which requires each handler to submit small entities acting on their own 1999 Oregon-California potato crop a monthly assessment report to the behalf. Thus, both statutes have small began. Committee containing the following entity orientation and compatibility. The objective of the handling information: (a) The date and quantity There are approximately 30 handlers requirements is to ensure that only of fresh potatoes sold including of Oregon-California potatoes who are acceptable quality potatoes enter fresh identification numbers; (b) the name subject to regulation under the market channels, thereby ensuring and address of the producers; (c) the marketing order and approximately 450 consumer satisfaction, increasing sales, assessment payment due; and (d) the potato producers in the regulated area. and improving returns to producers. name and address of the handler. Small agricultural service firms have While the industry continues to believe Authorization to assess handlers enables been defined by the Small Business that quality is an important factor in the Committee to incur expenses that Administration (13 CFR 121.601) as maintaining sales, the Committee are reasonable and necessary to those having annual receipts of less than believes the cost of inspection and administer the program. Although $5,000,000, and small agricultural certification (mandated when minimum adding reporting requirements, this rule producers are defined as those having requirements are in effect) may exceed through the elimination of inspection annual receipts of less than $500,000. the benefits derived. and certification requirements is Currently, about 83 percent of the Potato prices have been at low levels expected to reduce industry expenses. Oregon-California potato handlers ship in recent seasons, and many producers Consistent with the suspension of less that $5,000,000 worth of potatoes have faced difficulty covering their § 947.340, this rule also suspends and 17 percent ship more than production costs. Therefore, the §§ 947.120, 947.123, 947.130, 947.132, $5,000,000 worth on an annual basis. In Committee has been discussing the 947.133, and 947.134 of the rules and addition, based on acreage, production, possibility of reducing costs through the regulations in effect under the order. and producer prices reported by the elimination of mandatory inspection. Sections 947.120 and 947.123 provide National Agricultural Statistics Service, The Committee is concerned, however, authority for hardship exemptions from and the total number of Oregon- that the elimination of current handling inspection and certification, and California potato producers, average and inspection requirements could establish reporting and recordkeeping annual producer receipts are possibly result in lower quality potatoes requirements when such exemptions are approximately $285,000. In view of the being shipped to fresh markets. Also, in place. Sections 947.130, 947.132, foregoing, it can be concluded that the there is some concern that the Oregon- 947.133, and 947.134 are safeguard and majority of handlers and producers of
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Oregon-California potatoes may be suspension and consider appropriate businesses. This rule will suspend classified as small entities. actions for ensuing seasons. minimum grade, size, quality, maturity, This rule suspends the handling This rule will enable handlers to ship pack, and inspection requirements. regulations and establishes reporting potatoes without regard to the minimum Further, this rule will allow handlers requirements from July 1, 1999, through grade, size, quality, maturity, pack, and and producers the choice to obtain June 30, 2000. This rule will allow the inspection requirements for the 1999– inspection for potatoes, as needed, Oregon-California potato industry to 2000 season only. This rule will allow thereby reducing cost to producers and market potatoes without minimum handlers to decrease costs by handlers. The total cost of inspection grade, size, quality, maturity, pack, and eliminating the costs associated with and certification for fresh shipments of inspection requirements. The handling inspection. This rule will not restrict Oregon-California potatoes during the regulations currently specified in handlers from seeking inspection on a 1998–99 marketing season is estimated § 947.340 will resume July 1, 2000, for voluntary basis. The Committee will at $600,000. This is approximately the 2000–2001 season and future evaluate the effects of removing the $20,000 per handler. The Committee seasons. Reporting requirements will minimum requirements on marketing expects, however, that most handlers allow the Committee to obtain and on producer returns at its meeting will continue to have some of their information from handlers necessary to next spring. potatoes inspected and certified by the collect assessments. The suspension of the handling Federal-State Inspection Service. At its February 23, 1999, meeting, the regulations will result in the elimination The Committee investigated the use of Committee unanimously recommended of the monthly inspection report from other types of inspection programs as suspending the handling regulations the Federal-State Inspection Service another option to reduce the cost of and establishing reporting requirements which the Committee used for billing inspection, but believed they were not purposes. This inspection report was for the 1999–2000 season. The viable at this time. With the suspension compiled by the Federal-State Committee met again on May 14, 1999, of handling regulations, there are no Inspection Service from inspection to review the recommendation made at alternatives to reporting requirements to certificates. During this suspension of the earlier meeting. After extensive ensure the collection of assessments the handling regulations, reports from discussion, the Committee decided not needed to administer the order. handlers will be necessary for the This rule will require monthly reports to rescind or modify their earlier Committee to obtain information on from handlers to obtain information recommendation to suspend handling which to collect assessments. This rule necessary to collect assessments. regulations. The Committee requested establishes a new § 947.180 Reports Although this rule establishes new that this rule be effective for the fiscal which requires each handler to submit reporting requirements, the suspension period beginning July 1, 1999, which is a monthly assessment report to the of the handling regulations eliminates also the date shipments of the 1999 Committee containing the following the more frequent reporting Oregon-California potato crop began. information: (a) The date and quantity requirements that were included under The objective of the handling of fresh potatoes sold including the safeguard provisions of the order. requirements is to ensure that only identification numbers; (b) the name Therefore, any additional reporting or acceptable quality potatoes enter fresh and address of the producers; (c) the recordkeeping requirements on either market channels, thereby ensuring assessment payment due; and (d) the small or large potato handlers are consumer satisfaction, increasing sales, name and address of the handler. expected to be offset by the elimination and improving returns to producers. Authorization to assess handlers enables of reporting requirements currently in While the industry continues to believe the Committee to incur expenses that effect. In addition, the elimination of that quality is an important factor in are reasonable and necessary to inspection and certification maintaining sales, the Committee administer the program. Although requirements is expected to further believes the cost of inspection and adding reporting requirements, this rule reduce industry expenses. Finally, as certification (mandated when minimum through the elimination of inspection with all Federal marketing order requirements are in effect) may exceed and certification requirements is programs, reports and forms are the benefits derived. expected to reduce industry expenses. periodically reviewed to reduce Potato prices have been at low levels Contained within § 947.340(i) of the information requirements and in recent seasons, and many producers current handling regulations is a duplication by industry and public have faced difficulty covering their minimum quantity exemption under sectors. production costs. Therefore, the which a handler may ship not more In accordance with the Paperwork Committee has been discussing the than 19 hundredweight of potatoes on Reduction Act of 1995 (44 U.S.C. possibility of reducing costs through the any day without regard to the inspection Chapter 35), the information collection elimination of mandatory inspection. and assessment requirements issued requirements that are contained in this The Committee is concerned, however, under the order. The suspension of the rule have been approved by the Office that the elimination of current handling handling regulations removes all of Management and Budget (OMB) and and inspection requirements could inspection requirements. To continue have been assigned OMB No. 0581– possibly result in lower quality potatoes the current minimum quantity 0178. It is estimated that it will take a being shipped to fresh markets. Also, exemption for assessments, a new handler 20 minutes to complete a there is some concern that the Oregon- 947.125 Minimum quantity exemption monthly assessment report, and that California potato industry could lose is established. This section simply each handler will fill out 12 monthly sales to other potato producing areas continues the current minimum assessment reports each year. This that are covered by quality and quantity exemption under which a creates an estimated total industry inspection requirements. For these handler may ship not more than 19 burden of approximately 120 hours. It is reasons, the Committee recommended hundredweight of potatoes on any day estimated that it currently takes a that the suspension of handling without regard to the assessment handler 5 minutes to complete a requirements be effective for the 1999– requirements issued under the order. safeguard reporting form. With an 2000 season only. This will enable the The Committee anticipates that this estimated 2,000 safeguard reports Committee to study the impacts of the rule will not negatively impact small completed each year, the estimated
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.200 pfrm08 PsN: 13SER1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49355 decrease in burden because of the published at 64 FR 34113 on June 25, 9001 through 9039, to more effectively elimination of safeguard reporting 1999, is adopted as a final rule without administer the public financing program requirements is estimated to be 167 change. during the year 2000 election cycle. hours. Dated: September 7, 1999. These rules implement 26 U.S.C. 9001 The Department has not identified Robert C. Keeney, et. seq. and 26 U.S.C. 9031 et. seq. On any relevant Federal rules that December 16, 1998, the Commission duplicate, overlap or conflict with this Deputy Administrator, Fruit and Vegetable Programs. issued a Notice of Proposed Rulemaking rule. Further, the Committee’s meetings (NPRM) in which it sought comments [FR Doc. 99–23792 Filed 9–10–99; 8:45 am] were widely publicized throughout the on proposed revisions to these Oregon-California potato industry and BILLING CODE 3410±02±P regulations. 63 FR 69524 (Dec. 16, all interested persons were invited to 1998). attend the meetings and participate in In response to the NPRM, written Committee deliberations. Like all FEDERAL ELECTION COMMISSION comments were received from Aristotle Committee meetings, the February 23, Publishing, Inc.; America Online, Inc.; 11 CFR PARTS 9003, 9004, 9008, 9032, 1999, and May 14, 1999, meetings were Philadelphia 2000; Perot for President 9033, 9034, 9035, and 9036 public meetings and all entities, both ’96; James Madison Center for Free large and small, were able to express [Notice 1999±17] Speech; Common Cause and Democracy their views on this issue. The 21 (joint comment); Brennan Center for Committee itself is composed of 14 Public Financing of Presidential Justice; Lyn Utrecht, Eric Kleinfeld, and members, of which 5 are handlers and Primary and General Election Patricia Fiori (joint comment); 9 are producers. Finally, interested Candidates Democratic National Committee; Hervey persons are invited to submit AGENCY: Federal Election Commission. W. Herron (two comments); Republican information on the regulatory and National Committee; the Internal ACTION: Final Rule and Transmittal of informational impacts of this action on Revenue Service, and Carl P. Leubsdorf Regulations to Congress. small businesses. and twenty nine executives of news An interim final rule concerning this SUMMARY: The Commission is revising organizations (joint comment). The action was published in the Federal its regulations governing publicly Internal Revenue Service stated that it Register on June 25, 1999. A copy of the financed Presidential primary and has reviewed the NPRM and finds no rule was mailed to the Committee’s general election candidates. These conflict with the Internal Revenue Code administrative office for distribution to regulations implement the provisions of or regulations thereunder. producers and handlers. In addition, the the Presidential Election Campaign Subsequently, the Commission rule was made available through the Fund Act (‘‘Fund Act’’) and the reopened the comment period and held Internet by the Office of the Federal Presidential Primary Matching Payment a public hearing on March 24, 1999, at Register. That rule provided for a 60- Account Act (‘‘Matching Payment Act’’), which the following eight witnesses day comment period which ended which establish eligibility requirements presented testimony on the issues raised August 24, 1999. No comments were for Presidential candidates seeking in the NPRM: Kim Hume (Fox News), received. public financing, and indicate how George Condon (Copley News Service), A small business guide on complying funds received under the public Lyn Utrecht (Ryan, Phillips, Utrecht & with fruit, vegetable, and specialty crop financing system may be spent. They MacKinnon), Joseph E. Sandler marketing agreements and orders may also require the Commission to audit (Democratic National Committee), be viewed at the following web site: publicly financed campaigns and seek Thomas J. Josefiak (Republican National http://www.ams.usda.gov/fv/ repayment where appropriate. The Committee), David Eisner and Trevor moab.html. Any questions about the revised rules reflect the Commission’s Potter (America Online, Inc.), and James compliance guide should be sent to Jay experience in administering this Bopp, Jr. (James Madison Center for Free Guerber at the previously mentioned program during several previous Speech). address in the FOR FURTHER INFORMATION Presidential election cycles and also Please note that the Commission has CONTACT section. already published separately final rules After consideration of all relevant seek to resolve some questions that may arise during the 2000 Presidential modifying the candidate agreement material presented, including the provisions so that federally-financed election cycle. Further information is Committee’s recommendation, and Presidential committees must provided in the supplementary other information, it is found that electronically file their reports. See information that follows. finalizing the interim final rule, without Explanation and Justification of 11 CFR change, as published in the Federal DATES: Further action, including the 9003.1 and 9033.1, 63 FR 45679 (August Register (64 FR 34113, June 25, 1999) publication of a document in the 27, 1998). Those regulations took effect will tend to effectuate the declared Federal Register announcing an on November 13, 1998. See policy of the Act. effective date, will be taken after these Announcement of Effective Date, 63 FR regulations have been before Congress List of Subjects in 7 CFR Part 947 63388 (November 13, 1998). In addition, for 30 legislative days pursuant to 26 the Commission has issued final rules Marketing agreements, Potatoes, U.S.C. 9009(c) and 9039(c). governing the matchability of Reporting and recordkeeping FOR FURTHER INFORMATION CONTACT: Ms. contributions made by credit and debit requirements. Rosemary C. Smith, Acting Assistant cards, including those transmitted over General Counsel, 999 E Street, NW, PART 947ÐIRISH POTATOES GROWN the Internet. See Explanation and Washington, DC 20463, (202) 694–1650 Justification of 11 CFR 9034.2 and IN MODOC AND SISKIYOU COUNTIES, or toll free (800) 424–9530. CALIFORNIA, AND IN ALL COUNTIES 9034.3, 64 FR 32394 (June 17, 1999). An SUPPLEMENTARY INFORMATION: The IN OREGON, EXCEPT MALHEUR effective date for the matching fund COUNTY Commission is publishing today the rules will be announced once those final text of revisions to its regulations regulations have been before Congress Accordingly, the interim final rule governing the public financing of for thirty legislative days. Final rules amending 7 CFR part 947 which was Presidential campaigns, 11 CFR Parts concerning coordinated party committee
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.202 pfrm08 PsN: 13SER1 49356 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations expenditures in the pre-nomination the GELAC is not improperly used to contributions received by losing period and reimbursement by the news make primary election expenditures. In primary candidates in Congressional media for travel expenses are also particular, this may become an issue races. pending before Congress. See when a candidate secures the The two witnesses who addressed this Explanation and Justification of 11 CFR nomination well in advance of the topic stressed the importance of 110.7, 9004.6 and 9034.6, 64 FR 42579 convention and has almost completely implementing policies that encourage (Aug. 5, 1999). exhausted the spending limits for the candidates to spend money to achieve The NPRM discussed several other primary. To avoid a recurrence of these voluntary compliance with the topics that are not included in the situations, the NPRM sought comments campaign financing laws. Hence, they attached final rules. The Commission on the following five alternative both urged the Commission to make no expects to address the following areas at amendments to paragraph (a)(1)(i) of changes that would create a disincentive a later date: (1) Coordination between section 9003.3: to spend money on compliance. They candidates and party committees on (1) Bar GELAC fundraising prior to urged the Commission to continue to political ads, polling, media production, the candidate’s nomination at the allow candidates to have the discretion consulting services and sharing of party’s national nominating convention. to determine when to form a GELAC employees; (2) Modifications to the Under this approach, a candidate may and begin GELAC solicitations. Thus, audit process; (3) Bases for primary establish a GELAC before the date of they both supported alternative 5, under repayment determinations; 4) The nomination, but only for the limited which losing primary candidates only ‘‘bright line’’ between primary expenses purpose of receiving correctly be required to refund or obtain donor and general election expenses; and (5) redesignated contributions that would redesignation for funds remaining in the Pre-nomination formation of Vice otherwise have to be refunded as account. Presidential committees. excessive primary contributions. The Commission has decided to adopt Sections 9009(c) and 9039(c) of Title (2) Bar GELAC fundraising before a a modified version of alternative 2. 26, United States Code, require that any specified date, such as April 15 of the Under this approach, paragraph (a)(1)(i) rules or regulations prescribed by the Presidential election year. Under this continues to permit GELACs to be Commission to carry out the provisions alternative, starting on April 15 of the established at any time. However, new of Title 26 of the United States Code be Presidential election year, candidates language indicates that before June 1 of transmitted to the Speaker of the House may begin soliciting contributions for the Presidential election year, the of Representatives and the President of the GELAC. However, if the candidate GELAC may only be used for the deposit the Senate 30 legislative days before does not become the nominee, all of primary election contributions that they are finally promulgated. The final contributions accepted for the GELAC, exceed the contributors’ contribution rules that follow were transmitted to including redesignated contributions, limits and are properly redesignated Congress on September 7, 1999. must be refunded within sixty (60) days under 11 CFR 110.1. Please note that of the candidate’s date of ineligibility. overhead and reporting expenses Explanation and Justification (3) Allow GELAC fundraising incurred by the GELAC may be defrayed Part 9003—Eligibility for Payments beginning 90 days before each from interest received on the account. candidate’s date of nomination. This The modifications to these regulations Section 9003.3 Allowable approach means that the nominees of also specify that the GELAC may not Contributions; General Election Legal the two major parties will begin GELAC solicit contributions before June 1 of the and Accounting Compliance Fund fundraising on different dates. Presidential election year. This date has (4) Bar Presidential candidates from 1. Pre-nomination Formation of a been selected because, barring establishing a GELAC until the date of GELAC unforeseen circumstances, this is the the last Presidential primary before the point when a party’s prospective Section 9003.3 contemplates that a national nominating convention. A nominee can be reasonably assured that nominee of a major political party who variation on this approach is to allow he or she will need to raise funds for a accepts public financing for the general the eventual nominee to form a GELAC GELAC. This time frame also gives the election may establish a privately at an earlier point, but to prohibit prospective nominee sufficient time to funded General Election Legal and GELAC fundraising before the last raise the funds that will be needed. Accounting Compliance Fund Presidential primary. Please note that revisions to the rules (‘‘GELAC’’) for certain limited purposes. (5) Allow any Presidential primary governing joint fundraising between the A GELAC may be set up before the candidate to establish and to raise funds primary campaign and the GELAC are candidate is actually nominated for the for a GELAC at any time. Under this discussed below in section 9034.4. office of President or Vice President. approach, those who do not win their Paragraph (a)(1)(i) of this section is The Commission sought comments on party’s nomination do not have to return also being revised to state more clearly several changes to this section to all the funds they raise. Instead, they that a GELAC may be established by an address problems that have arisen when could offset their fundraising and individual who is seeking his or her primary candidates established GELACs administrative expenses, and would party’s nomination, but who is not yet relatively early in the primary campaign only need to refund the amount a general-election candidate as defined but subsequently failed to win their remaining in their account as of the date in section 9002.2. party’s nomination. One difficulty is their party selects a nominee. The The Commission is also amending that candidates who do not receive their NPRM asked whether all contributors paragraph (a)(1)(i) of section 9003.3 to party’s nomination must return all should receive a proportional refund or indicate that if the candidate does not private contributions received by the whether a first-in-first-out method become the nominee, all contributions GELAC. However, if some of those should be used to determine which accepted for the GELAC, including funds have been used to defray contributions have been spent, with redesignated contributions, must be overhead expenses or to solicit refunds going to the most recent refunded within sixty (60) days of the additional contributions for the GELAC, contributors. The NPRM noted that this candidate’s date of ineligibility. Such a total refund has presented difficulties. alternative is significant departure from refunds are consistent with the Another problem has been ensuring that the treatment of general election Commission’s decision in the last
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Presidential election cycle to require comments or testimony addressed these defrayed with public funds. However, refunds within 60 days of the date on changes. the Commission recognizes that there which the political party of the are varying degrees of responsibility in Part 9004—Entitlement of Eligible unsuccessful primary candidate selects this area. Accordingly, the regulation Candidates to Payments; Use of also provides that certain factors should its nominee. These refunds are also Payments consistent with the policies applicable be considered, such as whether the to non-publicly funded Congressional Section 9004.4 committee demonstrates that it made candidates who accept designated 1. Winding Down Costs conscientious efforts to safeguard the general election contributions, but who missing equipment; whether the thereafter lose their parties’ primaries. Two technical changes are being committee sought or obtained insurance See 11 CFR 102.9(e)(2), and Advisory made to the winding down provisions on the items; whether the committee Opinions 1992–15 and 1986–17. Please found in paragraph (a)(4) of section filed a police report; the type of note that if contributors do not cash the 9004.4. First, the ‘‘or’’ at the end of equipment involved; and the number refund checks, the provisions of section paragraph (a)(4)(i) is being changed to and value of items that were lost. This 9007.6 governing stale dated checks will ‘‘and,’’ to clarify that the expenses listed approach is consistent with the apply. in both paragraphs (a)(4)(i) and (a)(4)(ii) Commission’s treatment of items lost or are considered winding down costs. misplaced by, or stolen from, publicly 2. Transfers from the Primary Campaign Second, paragraph (a)(4)(ii) is being funded candidates. See 11 CFR Committee to the GELAC amended to more clearly indicate that 9004.4(b)(8) and 9034.4(b)(8). None of the winding down costs described in The regulations at 11 CFR the public comments or testimony this paragraph are costs associated with 9003.3(a)(1)(i) through (v) place certain specifically addressed this aspect of the the general election campaign. restrictions on transferring funds from a convention regulations. Presidential candidate’s primary 2. Lost, Misplaced, or Stolen Items Section 9008.14 Petitions for committee to a GELAC. The purpose of Paragraph (b)(8) of this section Rehearings; Stays of Repayment these limitations is to ensure that the addresses situations where equipment Determinations GELAC is not used as a way to increase in the possession of general election In section 9008.14, the term ‘‘final a candidate’s entitlement to matching committees is lost or damaged. As a repayment determinations’’ is being funds or to decrease a candidate’s general matter, the cost of lost or replaced by ‘‘repayment repayment obligations. The NPRM misplaced items may not be defrayed determinations.’’ This amendment sought suggestions as to how these with public funds. However, given that conforms with the changes in provisions could be strengthened, and there are varying degrees of terminology made when the rules whether it is advisable to do so. The responsibility in this area, the rules setting out audit and repayment sole comment that addressed this issue provide that certain factors should be stated that the current regulations at 11 considered, such as whether the procedures were last revised in 1995. CFR 9003.3(a)(1) are more than adequate committee demonstrates that it made Section 9008.52 Receipts and to ensure that the GELAC is not used to conscientious efforts to safeguard the Disbursements of Host Committees increase candidate entitlement or missing equipment; whether the decrease repayments. The Commission committee sought or obtained insurance 1. Local Banks and Local Individuals has decided not to amend these transfer on the items; the type of equipment The NPRM sought comments on regulations because it agrees that the involved; and the number and value of amending section 9008.52(c)(1), which current rules adequately fulfill these items that were lost. addresses the receipt of donations by objectives. The Commission has decided to host committees. Specifically, the modify this paragraph to include stolen Section 9003.5 Documentation of NPRM sought to allow local banks to items and to add as another factor Disbursements donate funds and make in-kind whether a police report was filed. There donations for the limited purposes Section 9003.5(b)(1) sets forth the were no public comments on this described in these rules. The two documentation publicly financed portion of the regulations. commenters who addressed this topic general election committees must Section 9004.9 Net Outstanding supported the proposed amendment. provide for disbursements in excess of Qualified Campaign Expenses They found no rationale for the long $200. The documentation includes a standing distinction in the rules canceled check that has been negotiated The amendments to the provisions between donations from local by the payee. However, paragraph governing the disposition of capital corporations and donations from local (b)(1)(iv) of this section refers back to assets in section 9004.9(d)(1) are branches of national banks. One of the this canceled check without specifically discussed below. See the Explanation commenters argued that local branches restating that it must be negotiated by and Justification for 11 CFR of national banks have the same interest the payee. To avoid possible confusion, 9034.5(c)(1). as other local businesses in promoting the Commission is amending section Part 9008—Federal Financing of the city and supporting commerce. 9003.5(b)(1)(iv) by adding the words Presidential Nominating Conventions The Commission agrees with these ‘‘negotiated by the payee.’’ This change and Host Committees comments. Consequently this is consistent with the recent judicial amendment is being included in the decision in Fulani v. Federal Election Section 9008.7 Use of Funds attached final rules that follow. Please Commission, 147 F.3d 924 (D.C. Cir. New paragraph (c) is being added to note that the revised rules supersede, in 1998). A cross reference is also being section 9008.7 to address situations part, Advisory Opinion 1995–31 added to assist the reader in locating the where equipment in the possession of regarding local branches of national reporting regulations that list examples convention committees is lost, banks. of acceptable and unacceptable misplaced, or stolen. The rule indicates The second changes to section descriptions of ‘‘purpose.’’ See 11 CFR that as a general matter, the cost of lost, 9008.52(c)(1) concerns the categories of 104.3(b)(3)(i)(B). None of the public misplaced, or stolen items may not be individuals who may donate funds or
VerDate 18-JUN-99 16:34 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\13SER1.XXX pfrm02 PsN: 13SER1 49358 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations make in-kind donations to host types of credentials used to gain entry follow the revisions to section committees, government agencies and to the convention hall or specific 9008.52(c)(1). Consequently, a separate municipal corporations. The revisions locations within the hall; (2) electronic fund or account of a government agency restrict these donations to individuals vote tabulation systems; and (3) lighting or municipality may accept donations who either maintain a local residence or and rigging costs, including paying from local banks and individuals who who work for a business’s local office, stagehands, riggers, projectionists, either maintain a local residence or who or a labor organization’s local office, or electricians, and producers. The NPRM work for a business’s local office, or a another organization’s local office. This noted that with respect to lighting and labor organization’s local office, or new language is consistent with AO rigging expenses, in particular, it can be another organization’s local office. 1995–32 with respect to donations by difficult to distinguish between the Part 9032—Definitions individuals. costs associated with improving the Two commenters opposed restricting infrastructure of the convention hall and Section 9032.11 State donations to ‘‘local’’ individuals on the costs of producing and broadcasting The definition of ‘‘State’’ in section several grounds. They argued that the the convention proceedings to the 9032.11 is being updated by deleting the Commission misinterpreted its own general public or to those within the Canal Zone and by adding American regulation in AO 1995–32. In addition, convention hall. Specific changes to Samoa, which holds Presidential one commenter stated that the policy these regulations were not included in primaries consisting of caucuses. There concerns regarding corporate the NPRM. is no corresponding provision in the aggregation of wealth are not applicable One host committee and two national general election rules. to individuals. This comment appears to party committees urged the Commission overlook the compelling governmental to defer consideration and Part 9033—Eligibility for Payments purposes—preventing corruption and implementation of any significant Section 9033.11 Documentation of the appearance of corruption—that changes regarding permissible host Disbursements underlie the statutory restrictions on committee expenditures until after the individual contributions. One of the year 2000 Presidential elections because The revisions to section 9033.11 commenters also asserted that this the host committees and national party follow the amendments to section change to the regulation impermissibly committees have already finalized their 9003.5 discussed above. No public infringes upon the First Amendment’s contractual arrangements for the year comments were received regarding these guarantee of freedom of speech. Given 2000 Presidential nominating changes. that the FECA’s contribution limitations conventions. One of these witnesses Part 9034—Entitlements were upheld in Buckley v. Valeo, 424 observed that the purpose and functions U.S. 1 (1976), in the face of a First of host committees are nonpartisan, Section 9034.4 Use of Contributions Amendment challenge, this argument is namely to maximize the economic and Matching Payments not persuasive. In addition, one benefit to the city. This party committee 1. Winding Down Costs commenter also argued that there are witness argued that the current rules are compelling reasons why individuals adequate and provide the flexibility The regulations at 11 CFR 9034.4(a)(3) residing outside the metropolitan area of necessary to accommodate the unique permit candidates to receive the convention city would want to circumstances found in different host contributions and matching funds, and support the host committee. However, cities and in light of swiftly changing to make disbursements, for the purpose the comment failed to indicate what technology. Consequently, this witness of defraying winding down costs over such reasons might be. opposed new restrictions on the goods an extended period after the candidate’s Consequently, the Commission does and services that a host committee may date of ineligibility (‘‘DOI’’). However, not find the commenters’ arguments provide. The other party committee after the implementation of the ‘‘bright persuasive. Therefore, this change is witness indicated that it is line’’ rules in 1995, questions arose as being included in the final rules. contemplating selective use of the to whether all salary and overhead incurred after the date of the candidate’s 2. Permissible Host Committee Expenses advisory opinion process to obtain clarification, as needed, of the existing nomination must be attributed to the During the audits of the 1996 regulations. general election, including those convention and host committees, a Given that the party committees have associated with winding down the number of questions were raised as to already entered into contractual primary campaign. See 11 CFR the scope of expenses that may be paid agreements with the sites selected, the 9034.4(d)(3). Accordingly, the NPRM by a host committee instead of a Commission has decided not to modify sought comments on revising section convention committee. Section the existing regulations at this time with 9034.4(a)(3)(i) and (iii) to indicate that 9008.52(c)(1) enumerates the types of regard to the division of expenses for candidates who win their parties’ expenses that host committees may between convention committees and nominations, no salary and overhead defray with donated funds. Section host committees. Please note also that expenses may be treated as winding 9008.7(a) lists the types of convention the Commission’s decisions regarding down costs until after the end of the expenses that may be paid for using the audits of the 1996 convention and expenditure report period, which is public funds. These two sections of the host committees serve to provide thirty days after the general election regulations are not mutually exclusive. additional guidance for the 2000 takes place. Nor do they cover every conceivable election cycle. The written comments of two type of expense that may arise. witnesses opposed this change. One Consequently, the NPRM sought Section 9008.53 Receipts and witness viewed the proposal as a comments on amending one or both of Disbursements of Government Agencies ‘‘success penalty’’ for winning primary these provisions to provide greater and Municipal Corporations candidates. This witness noted that all specificity regarding allowable or The changes being made to 11 CFR primary candidates, whether they win nonallowable expenses for convention 9008.53(b)(1), which governs the receipt or lose the nomination, must incur wind or host committees. Disputed items have of donations by government agencies down costs. Similarly, the other witness included: (1) Badges, passes or other and municipal corporations, generally stated that general election candidates
VerDate 18-JUN-99 16:34 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\13SER1.XXX pfrm02 PsN: 13SER1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49359 must incur primary campaign wind Revisions are being made to this the recipient committees may not know down costs during the general election paragraph to reflect that not all which of several solicitation letters or period for such activities as paying candidates may accept public funding fundraising events generated a given debts, filing FEC reports, making in both the primary and the general contribution. matching fund submissions, and election. Nevertheless, candidates (3) Treat all expenses incurred by the responding to FEC auditor requests in accepting federal financing for only the GELAC prior to the candidate’s date of preparation for the audit. Consequently, general election will also need guidance ineligibility or date of nomination as this witness argued that the primary in attributing their expenditures qualified campaign expenses for the committees of the candidates who win between their primary election primary election. This approach avoids the nomination should be able to pay committees and their general election GELAC subsidization of the primary these expenses. This comment also committees. Accordingly, paragraph (e) campaign, and is easy to work with. noted that the proposed rule would is being amended to indicate that it (4) Specify in § 9003.3(a)(2)(i)(E) that lower the amount of matching funds applies to Presidential campaign the GELAC may only pay for the that could be received for these committees that accept federal funds for following solicitation costs: printing legitimate primary expenses, thereby either election. invitations and solicitations, mailing, treating winning primary candidates As noted above, the Commission postage and telemarketing expenses. differently from those who lose their expects to address a variety of other This approach excludes GELAC party’s nomination. issues involving the bright line in a payment for catering, facilities rental, The Commission has concluded that separate set of final rules to be issued at fundraising consultants, employee this area needs to be clarified. During a later date. salaries, and travel to the event site. the general election campaign, there are Two witnesses addressed this topic in 4. Joint Primary/GELAC Solicitations significant distinctions between the their written comments. They both winding down activities of candidates Paragraph (e)(6)(i) of section 9034.4 supported the current 50/50 rule for its who win their parties’ nominations and addresses situations where a candidate’s simplicity. One commenter specifically those who do not, particularly with GELAC and his or her primary urged that this rule be expanded to regard to legal and accounting committee issue joint solicitations for cover all types of fundraising costs, compliance expenses. Accordingly, the contributions. Under the revised rules including event and travel costs. The revised rules indicate that a publicly that took effect for the 1996 elections, other witness indicated that it would funded primary candidate who does not the costs of such solicitations were also make sense to follow the already- run in the general election may begin to divided equally between the two established joint fundraising rules. treat 100% of salary and overhead committees, regardless of how much The Commission has decided to expenses as compliance after the money is actually raised for each. One implement the first alternative, which candidate’s date of ineligibility. difficulty with this, however, was that treats joint primary/GELAC fundraising However, federally financed primary in some situations it enabled the GELAC the same as joint fundraising by candidates who continue on to the to absorb a relatively high portion of unaffiliated committees. The joint general election, as well as non- fundraising costs while receiving a fundraising rules in § 9034.8 are well- federally financed primary candidates relatively low proportion of the funds established and have proved to work who accept general election funding, raised. Thus, this provision was at odds well in other contexts. Under the must wait until after the end of the with the joint fundraising rules revisions to 9034.4(e)(6)(i), the GELAC expenditure report period for the applicable to other types of joint and the primary committee must general election before they may begin fundraising conducted by publicly apportion their fundraising costs, treating all salary and overhead funded Presidential primary committees including printing invitations and expenses as compliance expenses. under 11 CFR 9034.8. In effect, section solicitations, mailing, postage, Please note that the 100% figure applies 9034.4(e)(6)(i) could permit the GELAC telemarketing expenses, catering, to the salaries of those who continue to to subsidize fundraising expenses that facilities rental, fundraising consultants, provide substantial services to the would otherwise be paid by the primary and employee salaries, using the committee after the end of the committee and subject to spending percentage of contributions each expenditure report period. Compliance limits. Questions were also raised as to committee receives from the joint expenses between the date of whether the rule should cover only the fundraising effort. Given the unique nomination and the end of the cost of a solicitation, or whether it relationship between the primary expenditure report period are covered would be more appropriate to include campaign and the GELAC, and the fact by the revisions to section 9035.1(c)(1), other fundraising costs, such as staff that the candidate’s primary committee discussed below. salaries, consulting fees, catering, receives public financing in exchange facilities rental, and the candidate’s for voluntary compliance with spending 2. Lost, Misplaced, or Stolen Items travel to the event site. Consequently, limits, it is important to ensure that The revisions to paragraph (b)(8) of the NPRM suggested the following four costs are correctly apportioned and net section 9034.4 follow the changes made alternatives to paragraph (e)(6)(i): proceeds are properly distributed. to section 9004.4(b)(8). None of the (1) Allocate solicitation expenses and Under this new provision, for example, public comments or testimony the distribution of net proceeds from a if the GELAC receives 25% of the net addressed this provision. fundraiser in the same manner as proceeds, it may only pay 25% of the described in 11 CFR 9034.8(c)(8) (i) and fundraising expenses, and no more than 3. ‘‘Bright Line’’ Distinction Between (iii), which are the provisions that apply that amount. Primary and General Election Expenses to unaffiliated committees. Paragraph (e) of section 9034.4 sets (2) Prohibit joint fundraising between Section 9034.5 Net Outstanding forth certain ‘‘bright line’’ distinctions the primary and the GELAC. If each Campaign Obligations as to which expenses should be committee performs its own In determining a Presidential primary attributed to a candidate’s primary fundraising, the difficulties inherent in committee’s net outstanding campaign campaign and which ones should be apportioning expenses do not arise. This obligations (‘‘NOCO’’), § 9034.5(c)(1) considered general election expenses. approach eliminates the problem that permits candidates to deduct 40% of the
VerDate 18-JUN-99 16:34 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\13SER1.XXX pfrm02 PsN: 13SER1 49360 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations original cost of capital assets for The 60% figure is intended to reflect This new language conforms to the depreciation. Similarly, § 9004.9(d)(1) that while some capital assets are worth Commission’s previous interpretation of provides for a straight 40% depreciation less, others are worth more. Sixty its rules. See Explanation and figure for capital assets purchased by percent is reasonable in light of the fact Justification for 11 CFR 9034.5, 60 FR general election campaign committees that capital assets such as computer 31868 (June 16, 1995). The NPRM for purposes of the general election systems or telecommunications systems sought comments on whether computer committee’s statement of net are customized and configured software should be treated as a capital outstanding qualified campaign specifically to meet the needs of that asset. One commenter argued that expenses (‘‘NOQCE’’). At one time, the particular campaign organization. It may software should not be considered to be Commission had permitted federally also be of added value to the campaign a capital asset because the vendors’ financed Presidential campaign staff to continue to work with familiar licensing agreements may bar transfer of committees to demonstrate that a higher equipment, and to avoid the disruption the software. The Commission notes depreciation was appropriate for capital that would occur if new equipment that some software programs may be assets. In 1995, as part of an effort to were obtained, instead. With respect to sold as a package together with a streamline the audit process and to the sale of non-capital assets from the computer system, thus making it establish ‘‘bright lines’’ between primary to the general election impracticable to list them as separate primary expenses and general election committee, new language in paragraph capital assets on a NOCO statement. expenses, the Commission adopted the (d)((1)(iii) indicates that an inventory Lastly, please note that an incorrect straight 40% depreciation figure for all must be prepared. This is needed to reference to the date of ineligibility in assets purchased after the change in the verify the valuation included on the paragraph (d)(1)(i) of section 9004.9 has regulations took effect. It was believed primary committee’s NOCO statement been changed to refer to the end of the that situations where the 40% figure as well as the amount listed on the expenditure report period. was too low would be counterbalanced general election committee’s NOQCE by situations where the figure was too statement. Part 9035—Expenditure Limitations high. Experience during the 1996 The revised regulations in 11 CFR Section 9035.1 Campaign Expenditure Presidential audits has shown that the 9004.9(d) indicate that once the general Limitation; Compliance and 40% depreciation figure is election campaign is over, the value of Fundraising Exemptions unrealistically low for capital assets assets obtained from the primary The rules at 11 CFR 9035.1(c)(1) set such as vehicles, computer systems, campaign committee shall be listed on forth an exemption from the overall telephone systems, and other equipment the NOQCE statement as 20% of the that is heavily used during a original cost to the primary committee. spending limit for legal and accounting Presidential primary campaign. Please note that campaigns do not have compliance costs incurred by federally For this reason, the NPRM sought the option of demonstrating that an financed Presidential primary comments on the amending amount less than 20% is appropriate. committees. In the past, to claim this § 9034.5(c)(1) to allow primary Based on past experience, the exemption, campaign committees have candidates to demonstrate a higher Commission has concluded that a 20% had to keep detailed records of salary depreciation figure through residual value is a realistic figure for and overhead expenses, including documentation of the fair market value. equipment that has been used records indicating which duties are A similar amendment was proposed for throughout both the primary and considered compliance and the the corresponding general election general election campaigns. percentage of time each person spends provision in 11 CFR 9004.9(d). Two The commenters argued that this on such activities. The NPRM sought to comments addressed this proposed figure should also be based on actual amend this regulation to provide a change. Both of them agreed that fair market value, which may be less, simpler and easier method of candidates should be allowed to rather than an artificial percentage calculating the compliance exemption. demonstrate a higher depreciation. As applicable to all types of capital assets. Accordingly, comments were sought on the Commission concurs, this Nevertheless, the Commission has revising this paragraph to state that an amendment is being included in both concluded that this is another area amount equal to 10% of all operating sections of the final rules. where it would be too complex to expenditures for each reporting period The NPRM also contemplated the determine the fair market values of may be treated as compliance expenses establishment of a minimum fair market every capital asset on hand. Some not subject to the candidate’s spending value of 60% of the purchase price in capital assets may be worth less, while limit. The NPRM noted that this amount situations where a candidate’s primary others may be worth more. Accordingly, could be readily derived from line 23, committee transfers or sells capital the revisions to 11 CFR 9004.9(d) Operating Expenses, on the committee’s assets to his or her publicly financed incorporate the 20% residual value reports. general-election committee. Both figure. Please note that the general Several commenters and witnesses comments argued that the price for election committee may, if it wishes, stressed the importance of assets transferred from primary to sell these capital assets to the GELAC implementing policies that encourage general election committee should be for the 20% residual value. candidates to spend money to achieve based on actual fair market value, which Another revision included in 11 CFR voluntary compliance with the may be less, rather than an artificial 9004.9 and 9034.5 is a clarification of campaign financing laws. Consequently, percentage applicable to all types of the term ‘‘capital asset.’’ A new sentence some of these opposed establishing an capital assets. is being added to sections 9004.9(d) and upper limit of 10% of operating costs The final rules include the ‘‘bright 9034.5(c)(1) to indicate that when the that could be spent for compliance line’’ approach, whereby the value of components of a system, such as a costs, arguing that the Commission transferred assets is 60% of original computer system or a should not discourage spending more purchase price. The Commission has telecommunications system, are used money on compliance. They also concluded that it would be too complex together and the total cost of the pointed out that compliance costs may to determine the fair market values of components exceeds $2000, the entire be unrelated to the overall amount of every capital asset actually transferred. system is considered a capital asset. operating costs, and that committees
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.153 pfrm08 PsN: 13SER1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49361 having low operating costs could be Part 9036—Review of Matching Fund 1. Allocation of Presidential Travel disadvantaged. One witness urged the Submissions and Certification of Costs Commission to let committees Payments by Commission The Commission’s regulations at 11 demonstrate that their actual legal and Section 9036.1 Threshold Submission CFR 9004.7 and 9034.7 govern the accounting costs are higher than the allocation of travel expenses when other standard percentage. During the 1996 Presidential election candidates or elected officials The Commission agrees that it is not cycle, the Commission instituted a new accompany a publicly funded sound policy to artificially limit or program whereby primary campaign Presidential candidate, or such discourage compliance spending. committees may submit contributions candidate’s staff, on campaign-related Nevertheless, establishing a ‘‘standard for matching fund payments through the trips. One commenter addressed several deduction’’ for compliance has the use of digital imaging technology such differences between these rules and the advantage of simplicity and ease of as computer CD ROMs, instead of provisions of 11 CFR 106.3 governing application. Consequently, the submitting paper photocopies of checks travel expenses for Congressional Commission has decided to modify the and deposit slips. For the 2000 election candidates and for Presidential candidates who don’t accept federal initial proposal so that an amount equal cycle, the Commission is expanding this funds for their campaigns. to 15% of the candidate’s overall program to permit the use of digital The Commission has concluded that expenditure limit may be excluded as imaging for primary committees’ threshold submissions. See new these proposals are beyond the scope of exempt legal and accounting this rulemaking. At a later date, compliance costs under 11 CFR language in paragraph (b)(3) of section 9036.1. Please note that committees however, they may be included in a new 100.8(b)(15). A review of previous rulemaking addressing possible wishing to submit paper records and Presidential campaigns indicates that revisions to 11 CFR 106.3. Changes in documentation, instead of digital this figure approximates the upper this area would impact all federal images, may do so. The only written set amount publicly funded primary candidates, not just those who have or of comments to address this topic committees have spent in previous are running for President and have election cycles. Unlike the initial supported the submission of this accepted federal funding for their proposal, this approach is not tied to documentation via CD ROM. campaigns. Thus, the Commission monthly operating expenditures. Thus, Section 9036.2 Additional would want to have the benefit of it allows for greater flexibility in earlier Submissions for Matching Fund obtaining comments from non- reporting periods when committees may Payments Presidential candidates before be setting up their legal and accounting promulgating new rules that would systems. A similar approach has worked Paragraph (b)(1)(vi) of this section is affect them. In addition, to the extent well with respect to fundraising being revised to enable primary possible, the Commission would need to expenses. See 11 CFR 100.8(b)(21) and committees to submit digital images of closely consider consistency with 9035.1(c)(2). Note that the final rule contributor redesignations, Congressional guidelines regarding does not permit committees to reattributions and supporting statements travel. and materials needed to establish the demonstrate that they have actually 2. Aircraft Owned by Individuals and matchability of contributions. The incurred a higher amount because the Charter Rates Commission is seeking to move away single set of written comments to address this topic indicated that it The Commission’s regulations at 11 from its previous resource-intensive CFR 114.9(e) create exceptions to the system that required the creation, would be burdensome for committees to maintain paper copies of original definitions of contribution and maintenance, and review of expenditure to allow candidates and considerable paperwork to document documentation other than contributor cards and affidavits. The Commission their campaign staff to travel on aircraft compliance costs. However, as notes that the amendment to the owned by corporations or labor explained above, in addition to the 15% regulations is only intended to give organizations if they provide of the overall spending limits, publicly Presidential primary committees the reimbursement within specified time funded primary candidates may also option, in lieu of paper submissions, of periods. Similarly, 11 CFR 9004.7 and treat 100% of their overhead and salary electronically submitting digital images 9034.7 provide for reimbursement for expenses as exempt compliance costs of contributor redesignations, campaign-related travel on government after their date of ineligibility or after contributor reattributions and the types aircraft such as Air Force One or Air the end of the expenditure report of supporting statements commonly Force Two. However, no comparable provisions cover travel on aircraft period. These changes to the regulations found on contributor cards. The owned by individuals, partnerships or are intended to decrease the time it requirements of 11 CFR 110.1(l) for other unincorporated entities. One takes for the Commission to verify maintaining the original documents are commenter urged the Commission to compliance costs during the audit not being changed. Hence, revised amend its regulations to apply the same process. They should also reduce the section 9036.2 does not impose first-class reimbursement requirement to resources campaign committees must additional recordkeeping burdens on devote to tracking compliance costs. travel on private aircraft regardless of Presidential committees. the nature of the owner of the aircraft. Please note that the title of section Additional Issues With regard to travel between cities not 9035.1 is also being revised and having first class service, the comment subheadings for each paragraph are During the course of this rulemaking, urged the Commission to let authorized being added to assist readers in locating the Commission considered other committees use the ‘‘lowest available’’ the material in this section more easily. possible changes to the regulations that charter rate instead of the ‘‘usual’’ it did not ultimately incorporate into the charter rate. final rules. A summary of these For some of the reasons mentioned proposals follows. above, the Commission has concluded
VerDate 18-JUN-99 16:53 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\13SER1.XXX pfrm02 PsN: 13SER1 49362 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations that these proposals are beyond the PART 9003ÐELIGIBILITY FOR (iv) If the purpose of the disbursement scope of this rulemaking. They could, PAYMENTS is not stated in the accompanying however, be included in a new Notice documentation, it must be indicated on of Proposed Rulemaking at a later date. 1. The authority citation for Part 9003 the canceled check negotiated by the Changes of this nature would impact all continues to read as follows: payee. federal candidates, not just those who Authority: 26 U.S.C. 9003 and 9009(b). * * * * * have are running for President and have 2. In § 9003.3, the headings for (3) * * * accepted federal funding for their paragraphs (a) and (a)(1) are (ii) Purpose means the full name and campaigns. Thus, the Commission republished, and the section heading, mailing address of the payee, the date would want to have the benefit of the introductory text of paragraph and amount of the disbursement, and a obtaining comments from non- (a)(1)(i), and paragraph (a)(1)(i)(A) are brief description of the goods or services Presidential candidates before revised to read as follows: purchased. Examples of acceptable and promulgating new rules that would unacceptable descriptions of goods and affect them. In addition, this complex § 9003.3 Allowable contributions; General services purchased are listed at 11 CFR area is also subject to regulation by the election legal and accounting compliance 104.3(b)(3)(i)(B). fund. Federal Aviation Administration, and * * * * * consultation with that agency would be (a) Legal and accounting compliance advisable before issuing final rules. fund—major party candidates. PART 9004ÐENTITLEMENT OF Similarly, the Commission would need (1) Sources. ELIGIBLE CANDIDATES TO to carefully consider the consistency of (i) A major party candidate, or an PAYMENTS; USE OF PAYMENTS individual who is seeking the its rules with Congressional guidelines 4. The authority citation for part 9004 regarding travel. nomination of a major party, may accept contributions to a legal and accounting continues to read as follows: Certification of No Effect Pursuant to 5 compliance fund if such contributions Authority: 26 U.S.C. 9004 and 9009(b). U.S.C. 605(b) (Regulatory Flexibility are received and disbursed in 5. Section 9004.4 is amended by Act) accordance with this section. A general revising paragraphs (a)(4) and (b)(8) to The attached final rules will not, if election legal and accounting read as follows: promulgated, have a significant compliance fund (‘‘GELAC’’) may be economic impact on a substantial established by such individual prior to § 9004.4 Use of payments. number of small entities. The basis for being nominated or selected as the (a) * * * this certification is that very few small candidate of a political party for the (4) Winding down costs. The entities will be affected by these office of President or Vice President of following costs shall be considered proposed rules, and the cost is not the United States. Before June 1 of the qualified campaign expenses: expected to be significant. Further, any calendar year in which a Presidential (i) Costs associated with the small entities affected have voluntarily general election is held, contributions termination of the candidate’s general election campaign such as complying chosen to receive public funding and to may only be deposited in the GELAC if with the post-election requirements of comply with the requirements of the they are made for the primary and the Act and other necessary Presidential Election Campaign Fund exceed the contributor’s contribution administrative costs associated with Act or the Presidential Primary limits for the primary and are lawfully winding down the campaign, including Matching Payment Account Act in these redesignated by the contributor for the office space rental, staff salaries, and areas. GELAC pursuant to 11 CFR 110.1. (A) All solicitations for contributions office supplies; and List of Subjects to the GELAC shall clearly state that (ii) Costs associated with the candidate’s general election campaign 11 CFR Part 9003 Federal law prohibits private contributions from being used for the and incurred by the candidate prior to Campaign funds, Reporting and candidate’s election and that the end of the expenditure report period recordkeeping requirements contributions will be used solely for for which written arrangement or commitment was made on or before the 11 CFR Part 9004 legal and accounting services to ensure compliance with Federal law, and shall close of the expenditure report period. Campaign funds clearly state how contribution checks * * * * * 11 CFR Part 9008 should be made payable. Contributions (b) * * * shall not be solicited for the GELAC (8) Lost, misplaced, or stolen items. Campaign funds, Political committees before June 1 of the calendar year in The cost of lost, misplaced, or stolen and parties, Reporting and which a Presidential general election is items may be considered a nonqualified recordkeeping requirements held. If the candidate does not become campaign expense. Factors considered 11 CFR Part 9032. the nominee, all contributions accepted by the Commission in making this Campaign funds. for the GELAC, including redesignated determination shall include, but not be 11 CFR Parts 9033—9035 contributions, shall be refunded within limited to, whether the committee Campaign funds, Reporting and sixty (60) days after the candidate’s date demonstrates that it made conscientious recordkeeping requirements. of ineligibility. efforts to safeguard the missing 11 CFR Part 9036 equipment; whether the committee Administrative practice and * * * * * 3. Section 9003.5 is amended by sought or obtained insurance on the procedure, Campaign funds, Reporting items; whether the committee filed a and recordkeeping requirements. revising paragraphs (b)(1)(iv) and (b)(3)(ii) to read as follows: police report; the type of equipment For the reasons set out in the involved; and the number and value of preamble, Subchapters E and F of § 9003.5 Documentation of disbursements. items that were lost. Chapter I of Title 11 of the Code of * * * * * 6. Section 9004.9 is amended by Federal Regulations are amended as (b) * * * revising paragraph (d)(1) to read as follows: (1) * * * follows:
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§ 9004.9 Net outstanding qualified PART 9008ÐFEDERAL FINANCING OF § 9008.53 Receipts and disbursements of campaign expenses. PRESIDENTIAL NOMINATING government agencies and municipal corporations. * * * * * CONVENTIONS * * * * * (d) (1) Capital assets and assets 7. The authority citation for part 9008 (b) Receipt of donations to a separate purchased from the primary election continues to read as follows: fund or account. (1) Local businesses committee. Authority: 2 U.S.C. 437, 438(a)(8); 26 (including banks), local labor (i) For purposes of this section, the U.S.C. 9008 and 9009(b). organizations, and other local term capital asset means any property 8. Section 9008.7 is amended by organizations or individuals who used in the operation of the campaign adding new paragraph (c) to read as maintain a local residence or who work whose purchase price exceeded $2000 follows: for a local business, local labor when acquired by the committee. organization, or local organization may Property that must be valued as capital § 9008.7 Use of funds. donate funds or make in-kind donations assets under this section includes, but is * * * * * to a separate fund or account of a not limited to, office equipment, (c) Lost, misplaced, or stolen items. government agency or municipality to furniture, vehicles and fixtures acquired The cost of lost, misplaced, or stolen pay for expenses listed in 11 CFR 9008.52(c), provided that: for use in the operation of the items may not be defrayed with public candidate’s campaign, but does not funds under certain circumstances. * * * * * Factors considered by the Commission include property defined as ‘‘other PART 9032ÐDEFINITIONS assets’’ under paragraph (d)(2) of this in making this determination shall include, but not be limited to, whether section. Capital assets include items 12. The authority citation for part the committee demonstrates that it such as computer systems and 9032 continues to read as follows: made conscientious efforts to safeguard telecommunications systems, if the the missing equipment; whether the Authority: 26 U.S.C. 9032 and 9039(b). equipment is used together and if the committee sought or obtained insurance 13. Section 9032.11 is revised to read total cost of all components that are on the items; whether the committee as follows: used together exceeds $2000. A list of filed a police report; the type of § 9032.11 State. all capital assets shall be maintained by equipment involved; and the number the committee in accordance with 11 and value of items that were lost. State means each State of the United CFR 9003.5(d)(1). The fair market value 9. Section 9008.14 is revised to read States, Puerto Rico, American Samoa, of capital assets shall be considered to as follows: the Virgin Islands, the District of be 60% of the total original cost of such Columbia, and Guam. items when acquired, except that items § 9008.14 Petitions for rehearing; stays of repayment determinations. PART 9033ÐELIGIBILITY FOR received after the end of the expenditure PAYMENTS report period must be valued at their Petitions for rehearing following the fair market value on the date acquired. Commission’s repayment determination 14. The authority citation for Part and requests for stays of repayment A candidate may claim a lower fair 9033 continues to read as follows: determinations will be governed by the market value for a capital asset by procedures set forth at 11 CFR 9007.5 Authority: 26 U.S.C. 9003(e), 9033 and 9039(b). listing that capital asset on the and 9038.5. The Commission will afford statement separately and demonstrating, convention committees the same rights 15. Section 9033.11 is amended by through documentation, the lower fair as are provided to publicly funded revising paragraphs (b)(1)(iv) and market value. candidates under 11 CFR 9007.5 and (b)(3)(ii) to read as follows: (ii) If capital assets are obtained from 9038.5. § 9033.11 Documentation of the candidate’s primary election 10. Section 9008.52 is amended by disbursements. republishing the heading of paragraph committee, the purchase price shall be * * * * * considered to be 60% of the original (c), and by revising the introductory text (b) * * * cost of such assets to the candidate’s of paragraph (c)(1) to read as follows: (1) * * * primary election committee. For § 9008.52 Receipts and disbursements of (iv) If the purpose of the disbursement purposes of the statement of net host committees. is not stated in the accompanying outstanding qualified campaign * * * * * documentation, it must be indicated on expenses filed after the end of the (c) Receipt of donations from local the canceled check negotiated by the expenditure report period, the fair businesses and organizations. (1) Local payee. market value of capital assets obtained businesses (including banks), local labor * * * * * from the candidate’s primary election organizations, and other local (3) * * * committee shall be considered to be organizations or individuals who (ii) Purpose means the full name and 20% of the original cost of such assets maintain a local residence or who work mailing address of the payee, the date to the candidate’s primary election for a local business, local labor and amount of the disbursement, and a committee. organization, or local organization may brief description of the goods or services donate funds or make in-kind donations purchased. Examples of acceptable and (iii) Items purchased from the primary unacceptable descriptions of goods and election committee that are not capital to a host committee to be used for the following purposes: services purchased are listed at 11 CFR assets, and also are not other assets 104.3(b)(3)(i)(B). * * * * * under paragraph (d)(2) of this section, * * * * * shall be listed on an inventory that 11. Section 9008.53 is amended by states their valuation. republishing the heading of paragraph PART 9034ÐENTITLEMENTS (b), and by revising the introductory * * * * * language of paragraph (b)(1) to read as 16. The authority citation for Part follows: 9034 continues to read as follows:
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Authority: 26 U.S.C. 9034 and 9039(b). the GELAC, depending on the purposes § 9035.1 Campaign expenditure limitation; compliance and fundraising exemptions. 17. Section 9034.4 is amended by of the fundraising. If a candidate raises revising paragraph (a)(3)(iii), paragraph funds for both the primary election and (a) Spending limit. (1) No candidate or (b)(8), the heading and introductory text for the GELAC in a single his or her authorized committee(s) shall of paragraph (e), and paragraph (e)(6)(i) communication or through a single knowingly incur expenditures in to read as follows: fundraising event, the allocation of connection with the candidate’s fundraising costs and the distribution of campaign for nomination, which § 9034.4 Use of contributions and net proceeds will be made in the same expenditures, in the aggregate, exceed matching payments. manner as described in 11 CFR $10,000,000 (as adjusted under 2 U.S.C. (a) * * * 9034.8(c)(8)(i) and (ii). 441a(c)), except that the aggregate (3) * * * * * * * * expenditures by a candidate in any one (iii) In the case of a candidate who State shall not exceed the greater of: 16 does not receive public funding for the 18. Section 9034.5 is amended by cents (as adjusted under 2 U.S.C. general election, for purposes of the revising paragraph (c)(1) to read as 441a(c)) multiplied by the voting age expenditure limitations set forth in 11 follows: population of the State (as certified CFR 9035.1, 100% of salary, overhead § 9034.5 Net outstanding campaign under 2 U.S.C. 441a(e)); or $200,000 (as and computer expenses incurred after a obligations. adjusted under 2 U.S.C. 441a(c)). (2) The Commission will calculate the candidate’s date of ineligibility may be * * * * * treated as exempt legal and accounting amount of expenditures attributable to compliance expenses beginning with (c) (1) Capital assets. For purposes of the overall expenditure limit or to a the first full reporting period after the this section, the term capital asset particular state using the full amounts candidate’s date of ineligibility. For means any property used in the originally charged for goods and candidates who continue to campaign or operation of the campaign whose services rendered to the committee and re-establish eligibility, this paragraph purchase price exceeded $2000 when not the amounts for which such shall not apply to expenses incurred received by the committee. Property that obligations were settled and paid, during the period between the date of must be valued as capital assets under unless the committee can demonstrate ineligibility and the date on which the this section includes, but is not limited that the lower amount paid reflects a candidate either re-establishes eligibility to, office equipment, furniture, vehicles reasonable settlement of a bona fide or ceases to continue to campaign. For and fixtures acquired for use in the dispute with the creditor. purposes of the expenditure limitations operation of the candidate’s campaign, (b) Allocation of expenditures. Each set forth in 11 CFR 9035.1, candidates but does not include property defined as candidate receiving or expecting to who receive public funding for the ‘‘other assets’’ under paragraph (c)(2) of receive matching funds under this general election must wait until the end this section. Capital assets include items subchapter shall also allocate his or her of the expenditure report period such as computer systems and expenditures in accordance with the described in 11 CFR 9002.12 before they telecommunications systems, if the provisions of 11 CFR 106.2. may treat 100% of salary, overhead and equipment is used together and if the (c) Compliance and fundraising computer expenses as exempt legal and total cost of all components that are exemptions. (1) A candidate may accounting compliance expenses. used together exceeds $2000. A list of exclude from the overall expenditure all capital assets shall be maintained by limitation set forth in paragraph (a) of * * * * * the committee in accordance with 11 this section an amount equal to 15% of (b) * * * CFR 9033.11(d). The fair market value of (8) Lost, misplaced, or stolen items. the overall expenditure limitation as capital assets shall be considered to be The cost of lost, misplaced, or stolen exempt legal and accounting 60% of the total original cost of such items may be considered a nonqualified compliance costs under 11 CFR items when acquired, except that items campaign expense. Factors considered 100.8(b)(15). received after the date of ineligibility (2) A candidate may exclude from the by the Commission in making this must be valued at their fair market value overall expenditure limitation of 11 CFR determination shall include, but not be on the date received. A candidate may 9035.1 the amount of exempt limited to, whether the committee claim a lower fair market value for a fundraising costs specified in 11 CFR demonstrates that it made conscientious capital asset by listing that capital asset 100.8(b)(21)(iii). efforts to safeguard the missing on the statement separately and (d) Candidates not receiving matching equipment; whether the committee demonstrating, through documentation, funds. The expenditure limitations of 11 sought or obtained insurance on the the lower fair market value. If the CFR 9035.1 shall not apply to a items; whether the committee filed a candidate receives public funding for candidate who does not receive police report; the type of equipment the general election, a lower fair market matching funds at any time during the involved; and the number and value of value shall not be claimed under this matching payment period. items that were lost. section for any capital assets transferred 21. The title of Part 9036 is revised to * * * * * or sold to the candidate’s general read as follows: (e) Attribution of expenditures election committee. between the primary and the general PART 9036ÐREVIEW OF MATCHING * * * * * election spending limits. The following FUND SUBMISSIONS AND rules apply to candidates who receive PART 9035ÐEXPENDITURE CERTIFICATION OF PAYMENTS BY public funding in either the primary or LIMITATIONS COMMISSION the general election, or both. 22. The authority citation for Part * * * * * 19. The authority citation for part 9036 continues to read as follows: (6) * * * 9035 continues to read as follows: Authority: 26 U.S.C. 9036 and 9039(b). (i) Solicitations and fundraising costs. Authority: 26 U.S.C. 9035 and 9039(b). The costs of fundraising, including that 23. Section 9036.1 is amended by of events and solicitation costs, shall be 20. Section 9035.1 is revised to read revising paragraph (b)(3) to read as attributed to the primary election or to as follows: follows:
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§ 9036.1 Threshold submission. and materials that are submitted for Certification Service, Federal Aviation * * * * * matching as digital images. Administration, 601 East 12th Street, (b) * * * * * * * * Kansas City, Missouri 64106; telephone (3) The candidate shall submit a full- Dated: September 7, 1999. (816) 426–6941. size photocopy of each check or written Scott E. Thomas, SUPPLEMENTARY INFORMATION: The FAA instrument and of supporting Chairman, Federal Election Commission. has determined that notice and documentation in accordance with 11 [FR Doc. 99–23578 Filed 9–10–99; 8:45 am] opportunity for prior public comment CFR 9034.2 for each contribution that hereon are impracticable because these BILLING CODE 6715±01±P the candidate submits to establish procedures would significantly delay eligibility for matching funds. For issuance of the approval design and purposes of the threshold submission, thus delivery of the affected aircraft. In DEPARTMENT OF TRANSPORTATION the photocopies shall be segregated addition, the substance of these special alphabetically by contributor within Federal Aviation Administration conditions has been subject to the each State, and shall be accompanied by public comment process in several prior and referenced to copies of the relevant 14 CFR Part 23 instances with no substantive comments deposit slips. In lieu of submitting received. The FAA, therefore, finds that photocopies, the candidate may submit [Docket No. CE153, Special Condition 23± good cause exists for making these digital images of checks and other 096±SC] special conditions effective upon materials in accordance with the Special Conditions; Meridian PA±46± issuance. procedures specified in 11 CFR 400TP 9036.2(b)(1)(vi). Digital images of Comments Invited contributions do not need to be AGENCY: Federal Aviation Interested persons are invited to segregated alphabetically by contributor Administration (FAA), DOT. submit such written data, views, or within each State. ACTION: Final special conditions; request arguments as they may desire. * * * * * for comments. Communications should identify the 24. Section 9036.2 is amended by regulatory docket or notice number and revising paragraph (b)(1)(vi) to read as SUMMARY: These special conditions are be submitted in duplicate to the address follows: issued to The New Piper Aircraft, Inc., specified above. All communications 2926 Piper Drive, Vero Beach, Florida received on or before the closing date § 9036.2 Additional submissions for 32960 for a type certificate for the for comments will be considered by the matching fund payments. Meridian PA–46–400TP airplane. This Administrator. The special conditions * * * * * airplane will have novel and unusual may be changed in light of the (b) * * * design features when compared to the comments received. All comments (1) * * * state of technology envisaged in the received will be available in the Rules (vi) The photocopies of each check or applicable airworthiness standards. Docket for examination by interested written instrument and of supporting These novel and unusual design persons, both before and after the documentation shall either be features include the installation of closing date for comments. A report alphabetized and referenced to copies of electronic flight instrument system summarizing each substantive public the relevant deposit slip, but not (EFIS) displays for which the applicable contact with FAA personnel concerning segregated by State as required in the regulations do not contain adequate or this rulemaking will be filed in the threshold submission; or such appropriate airworthiness standards for docket. Commenters wishing the FAA to photocopies may be batched in deposits the protection of these systems from the acknowledge receipt of their comments of 50 contributions or less and cross- effects of high intensity radiated fields submitted in response to this notice referenced by deposit number and (HIRF). These special conditions must include a self-addressed, stamped sequence number within each deposit contain the additional safety standards postcard on which the following on the contributor list. In lieu of that the Administrator considers statement is made: ‘‘Comments to submitting photocopies, the candidate necessary to establish a level of safety CE153.’’ The postcard will be date may submit digital images of checks, equivalent to the airworthiness stamped and returned to the written instruments and deposit slips as standards applicable to these airplanes. commenter. specified in the Computerized Magnetic Media Requirements. The candidate DATES: The effective date of these Background special conditions is August 27, 1999. may also submit digital images of On February 12, 1997, The New Piper Comments must be received on or contributor redesignations, Aircraft, Inc., 2926 Piper Drive, Vero before October 13, 1999. reattributions and supporting statements Beach, Florida 32960, made an and materials needed to verify the ADDRESSES: Comments may be mailed application to the FAA for a new Type matchability of contributions. The in duplicate to: Federal Aviation Certificate for the Meridian PA–46– candidate shall provide the computer Administration, Regional Counsel, 400TP airplane. The Meridian is a equipment and software needed to ACE–7, Attention: Rules Docket Clerk, derivative of the PA–46–350P Malibu retrieve and read the digital images, if Docket No. CE153, Room 1558, 601 East Mirage currently approved under TC necessary, at no cost to the Commission, 12th Street, Kansas City, Missouri No. A25SO. The proposed modification and shall include digital images of every 64106. All comments must be marked: incorporates a novel or unusual design contribution received and imaged on or Docket No. CE153. Comments may be feature, such as digital avionics after the date of the previous matching inspected in the Rules Docket consisting of an EFIS, that is vulnerable fund request. Contributions and other weekdays, except Federal holidays, to HIRF external to the airplane. documentation not imaged shall be between 7:30 a.m. and 4:00 p.m. submitted in photocopy form. The FOR FURTHER INFORMATION CONTACT: Type Certification Basis candidate shall maintain the originals of Ervin Dvorak, Aerospace Engineer, Under the provisions of 14 CFR part all contributor redesignations, Standards Office (ACE–110), Small 21, § 21.101, The New Piper Aircraft, reattributions and supporting statements Airplane Directorate, Aircraft Inc., must show that the Meridian PA–
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46–400TP meets the following electronic systems that perform Field strength provisions, or the applicable regulations functions required for continued safe Frequency (volts per meter) in effect on the date of application for flight and landing. Due to the use of Peak Average the change to the Meridian PA–6– sensitive solid state advanced 400TP: components in analog and digital 10 kHzÐ100 kHz ...... 50 50 Federal Aviation Regulations part 23 electronics circuits, these advanced 100 kHzÐ500 kHz ...... 50 50 effective February 1, 1965, as amended systems are readily responsive to the 500 kHzÐ2 MHz ...... 50 50 by Amendments 23–1 through 23–52; transient effects of induced electrical 2 MHzÐ30 MHz ...... 100 100 Federal Aviation Regulations part 34 current and voltage caused by the HIRF. 30 MHzÐ70 MHz ...... 50 50 effective September 10, 1990, as The HIRF can degrade electronic 70 MHzÐ100 MHz ...... 50 50 amended by the amendment in effect on 100 MHzÐ200 MHz ..... 100 100 systems performance by damaging 200 MHzÐ400 MHz ..... 100 100 the date of certification; Federal components or upsetting system Aviation Regulations part 36 effective 400 MHzÐ700 MHz ..... 700 50 functions. 700 MHzÐ1 GHz ...... 700 100 December 1, 1969, as amended by 1 GHzÐ2 GHz ...... 2000 200 amendment 36–1 through the Furthermore, the HIRF environment has undergone a transformation that was 2 GHzÐ4 GHz ...... 3000 200 amendment in effect on the day of 4 GHzÐ6 GHz ...... 3000 200 certification; The Noise Control Act of not foreseen when the current 6 GHzÐ8 GHz ...... 1000 200 1972; exemptions, if any; and the requirements were developed. Higher 8 GHzÐ12 GHz ...... 3000 300 special conditions adopted by this energy levels are radiated from 12 GHzÐ18 GHz ...... 2000 200 rulemaking action. transmitters that are used for radar, 18 GHzÐ40 GHz ...... 600 200 radio, and television. Also, the number Discussion The field strengths are expressed in terms of transmitters has increased of peak root-mean-square (rms) values. If the Administrator finds that the significantly. There is also uncertainty applicable airworthiness standards do concerning the effectiveness of airframe or, (2) The applicant may demonstrate by not contain adequate or appropriate shielding for HIRF. Furthermore, a system test and analysis that the safety standards because of novel or coupling to cockpit-installed equipment electrical and electronic systems that unusual design features of an airplane, through the cockpit window apertures is perform critical functions can withstand special conditions are prescribed under undefined. a minimum threat of 100 volts per the provisions of § 21.16 to establish a The combined effect of the level of safety equivalent to that meter, peak electrical field strength, technological advances in airplane from 10 kHz to 18 GHz. When using this established in the regulations. design and the changing environment Special conditions are normally test to show compliance with the HIRF has resulted in an increased level of issued in accordance with § 11.49, after requirements, no credit is given for public notice, as required by §§ 11.28 vulnerability of electrical and electronic signal attenuation due to installation. and 11.29(b), and become a part of the systems required for the continued safe A preliminary hazard analysis must type certification basis in accordance flight and landing of the airplane. be performed by the applicant, for with § 21.101(b)(2). Effective measures against the effects of approval by the FAA, to identify either Special conditions are initially exposure to HIRF must be provided by electrical or electronic systems, or both, applicable to the model for which they the design and installation of these that perform critical functions. The term are issued. Should the type certificate systems. The accepted maximum energy ‘‘critical’’ means those functions whose for that model be amended later to levels in which civilian airplane system failure would contribute to, or cause, a include any other model that installations must be capable of failure condition that would prevent the incorporates the same novel or unusual operating safely are based on surveys continued safe flight and landing of the design feature, or should any other and analysis of existing radio frequency airplane. The systems identified by the model already included on the same emitters. These special conditions hazard analysis that perform critical type certificate be modified to require that the airplane be evaluated functions are candidates for the incorporate the same novel or unusual under these energy levels for the application of HIRF requirements. A design feature, the special conditions protection of the electronic system and system may perform both critical and would also apply to the other model its associated wiring harness. These non-critical functions. Primary under the provisions of § 21.101(a)(1). external threat levels, which are lower electronic flight display systems, and than previous required values, are their associated components, perform Novel or Unusual Design Features believed to represent the worst case to critical functions such as attitude, The New Piper Aircraft, Inc., plans to which an airplane would be exposed in altitude, and airspeed indication. The incorporate certain novel and unusual the operating environment. HIRF requirements apply only to critical functions. design features into an airplane for These special conditions require which the airworthiness standards do Compliance with HIRF requirements qualification of systems that perform may be demonstrated by tests, analysis, not contain adequate or appropriate critical functions, as installed in aircraft, safety standards for protection from the models, similarity with existing to the defined HIRF environment in systems, or any combination of these. effects of HIRF. These features include paragraph 1 or, as an option to a fixed EFIS, which are susceptible to the HIRF Service experience alone is not value using laboratory tests, in acceptable since normal flight environment, that were not envisaged paragraph 2, as follows: by the existing regulations for this type operations may not include an exposure of airplane. (1) The applicant may demonstrate to the HIRF environment. Reliance on a that the operation and operational system with similar design features for Protection of Systems From High capability of the installed electrical and redundancy as a means of protection Intensity Radiated Fields (HIRF) electronic systems that perform critical against the effects of external HIRF is Recent advances in technology have functions are not adversely affected generally insufficient since all elements given rise to the application in aircraft when the aircraft is exposed to the HIRF of a redundant system are likely to be designs of advanced electrical and environment defined below: exposed to the fields concurrently.
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Applicability and operational capabilities of these City, Missouri 64106; 816–426–5688, As discussed above, these special systems to perform critical functions, fax 816–426–2169. conditions are applicable to The New are not adversely affected when the SUPPLEMENTARY INFORMATION: airplane is exposed to high intensity Piper Aircraft, Inc., Meridian PA–46– Background 400TP. Should The New Piper Aircraft, radiated electromagnetic fields external Inc., apply at a later date for a change to the airplane. On February 6, 1992, Soloy to the type certificate to include any 2. For the purpose of these special Corporation applied for a supplemental other model incorporating the same conditions, the following definition type certificate (STC) for the Model novel or unusual design feature, the applies: Pathfinder 21 airplane, which would special conditions would apply to that Critical Functions: Functions whose modify the Cessna Model 208B airplane model as well under the provisions of failure would contribute to, or cause, a by installing the Soloy Dual Pac § 21.101(a)(1). failure condition that would prevent the propulsion system. This propulsion continued safe flight and landing of the system consists of two Pratt & Whitney Conclusion airplane. Canada (PWC) Model PT6D–114A This action affects only certain novel Issued in Kansas City, Missouri on August turboprop engines driving a single, or unusual design features on one model 27, 1999. Hartzell, five-blade propeller through a of airplane. It is not a rule of general Michael Gallagher, combining gearbox. Soloy Corporation applicability and affects only the Manager, Small Airplane Directorate, Aircraft is seeking approval for this airplane, applicant who applied to the FAA for Certification Service. equipped with a Soloy Dual Pac approval of these features on the [FR Doc. 99–23720 Filed 9–10–99; 8:45 am] propulsion system, as a normal category multiengine airplane. Title 14 CFR part airplane. BILLING CODE 4910±13±P The substance of these special 23 is not adequate to address a conditions has been subjected to the multiengine airplane with a single notice and comment period in several DEPARTMENT OF TRANSPORTATION propeller. Hence, the requirement for prior instances and has been derived these proposed special conditions, without substantive change from those Federal Aviation Administration which will be applied in addition to the previously issued. It is unlikely that applicable sections of part 23. prior public comment would result in a 14 CFR Part 23 The Soloy Dual Pac propulsion significant change from the substance [Docket No. CE149; Special Condition 23± system is mounted in the nose of the contained herein. For this reason, and 097±SC] Model Pathfinder 21 airplane. With this because a delay would significantly arrangement, an engine failure does not affect the certification of the airplane, Special Conditions: Soloy Corporation cause an asymmetric thrust condition which is imminent, the FAA has Model Pathfinder 21 Airplane; that would exist with a conventional determined that prior public notice and Airframe. twin turboprop airplane. This comment are unnecessary and asymmetric thrust compounds the AGENCY: Federal Aviation flightcrew workload following an engine impracticable, and good cause exists for Administration (FAA), DOT. adopting these special conditions upon failure. The Model Pathfinder 21 ACTION: Final special conditions. issuance. The FAA is requesting airplane configuration has the potential to substantially reduce this workload. comments to allow interested persons to SUMMARY: These special conditions are Since the Model Pathfinder 21 submit views that may not have been issued for the Soloy Corporation Model airplane produces only centerline submitted in response to the prior Pathfinder 21 airplane. The Model thrust, the only direct airplane control opportunities for comment described Pathfinder 21 airplane is a Cessna implications of an engine failure are the above. Model 208B airplane as modified by change in torque reaction and propeller List of Subjects in 14 CFR Part 23 Soloy Corporation to be considered as a slipstream effect. These transient multiengine, part 23, normal category characteristics require substantially less Aircraft, Aviation safety, Signs and airplane. The Model Pathfinder 21 symbols. crew action to correct than an airplane will have a novel or unusual asymmetric thrust condition and do not Citation design features associated with require constant effort by the flightcrew installation of the Soloy Dual Pac The authority citation for these to maintain control of the airplane for propulsion system, which consists of the remainder of the flight. special conditions is as follows: two Pratt & Whitney Canada Model Authority: 49 U.S.C. 106(g), 40113 and PT6D–114A turboprop engines driving a Safety Analysis 44701; 14 CFR part 21, §§ 21.16 and 21.17; single, Hartzell, five-blade propeller. and 14 CFR part 11, §§ 11.28 and 11.49. The FAA has conducted a safety The applicable airworthiness analysis that recognizes both the The Special Conditions regulations do not contain adequate or advantages and disadvantages of the Accordingly, pursuant to the appropriate safety standards for this proposed Model Pathfinder 21 airplane. authority delegated to me by the design feature. These special conditions The scope of this safety analysis was Administrator, the following special contain the additional safety standards limited to the areas affected by the conditions are issued as part of the type that the Administrator considers unique propulsion system installation certification basis for The New Piper necessary to establish a level of safety and assumes compliance with the Aircraft, Inc., Meridian PA–46–400TP equivalent to that established by the design-related requirements of these airplane: existing airworthiness standards. proposed special conditions. The FAA 1. Protection of Electrical and EFFECTIVE DATE: October 13, 1999. examined the accident and incident Electronic Systems from High Intensity FOR FURTHER INFORMATION CONTACT: history of small twin turboprop Radiated Fields (HIRF). Dave Keenan, Federal Aviation operations for the years of 1983 to 1994 Each system that performs critical Administration, Aircraft Certification in the United States and the United functions must be designed and Service, Small Airplane Directorate, Kingdom. The FAA evaluated each installed to ensure that the operations, ACE–111, 601 East 12th Street, Kansas event and determined if the outcome,
VerDate 18-JUN-99 16:34 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\13SER1.XXX pfrm02 PsN: 13SER1 49368 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations given the same pilot, weather, and regulations incorporated by reference feature, special conditions are airplane except with centerline thrust are commonly referred to as the prescribed under the provisions of and one propeller, would have been ‘‘original type certification basis.’’ The § 21.16. more favorable, less favorable, or regulations incorporated by reference in Special conditions, as appropriate, are unchanged. Examination of the incident TC No. A37CE are as follows: issued in accordance with § 11.49 after data revealed a number of failure modes The type certification basis for Cessna public notice, as required by § 11.28 and that, if not addressed as part of the Model 208B airplanes shown on TC § 11.29(b), and become part of the type Model Pathfinder 21 airplane design, Data Sheet A37CE for parts not changed certification basis in accordance with could result in a potential increase in or not affected by the changes proposed § 21.101(b)(2). the number of accidents for the Model by Soloy Corporation is part 23 of the Special conditions are initially Pathfinder 21 airplane compared to the Federal Aviation Regulations dated applicable to the model for which they current fleet. Examples of such failure February 1, 1965, as amended by are issued. Should the applicant apply modes include loss of a propeller blade Amendments 23–1 through 23–28; part for an STC to modify any other model tip or failure of the propeller control 36 dated December 1, 1969, as amended included on the same TC to incorporate system. Although these proposed by Amendments 36–1 through 36–18; the same novel or unusual design special conditions contain provisions to Special Federal Aviation Regulations feature, the special conditions would prevent catastrophic failures of the (SFAR) 27 dated February 1, 1974, as also apply to the other model under the remaining non-fail-safe components of amended by Amendments 27–1 through provisions of § 21.101(a)(1). the Model Pathfinder 21 airplane after 27–4. Soloy Corporation must show that The Soloy Dual Pac was certified as compliance with the design related the Model Pathfinder 21 airplane meets a propulsion system under part 33 and requirements, the analysis assumes that the applicable provisions of part 23, special conditions in Docket No. 93– these components will fail in a similar including multiengine designated ANE–14; No. 33–ANE–01 (62 FR 7335, manner to the failures contained in the sections, as amended by Amendment February 19, 1997) under STC No. incident data. Given these assumptions, 23–42 (the Pathfinder 21 type SE00482SE to the PWC Model PT6 the FAA determined that the projected certification basis is based on the date engine TC E4EA. Those special accident rate of the Model Pathfinder 21 of STC application: February 6, 1992) conditions were created in recognition airplane would be equal to or lower for parts changed or affected by the of the novel and unusual features of the than the current small twin turboprop change. Soloy Corporation has also proposal, specifically the combining airplane fleet. Considering that analysis, elected to comply with § 23.561, gearbox. the FAA has determined that the Emergency Landing Conditions— Novel or Unusual Design Features advantages of centerline thrust General (Amendment 23–48); § 23.731, compensate for the disadvantages of the Wheels (Amendment 23–45); § 23.733, The Model Pathfinder 21 will non-fail-safe design features. Once that Tires (Amendment 23–45); § 23.783, incorporate a novel or unusual design determination was made, these Doors (Amendment. 23–49); § 23.807, feature by installing the Soloy Dual Pac proposed special conditions were Emergency Exits (Amendment 23–49); propulsion system, which consists of formulated with the objective of § 23.811, Emergency Exit Marking two PWC Model PT6D–114A engines substantially reducing or eliminating (Amendment 23–46); § 23.901, driving a single, Hartzell, five-blade risks associated with the non-redundant Installation (Amendment 23–51); propeller through a Soloy-designed systems and components of the Model § 23.955, Fuel Flow (Amendment 23– combining gearbox. The combining Pathfinder 21 airplane design that have 51); § 23.1041, Cooling—General gearbox incorporates redundant been identified and providing a level of (Amendment 23–51); § 23.1091, Air freewheeling, drive, governing, and safety equivalent to that of conventional Induction System (Amendment 23–51); lubricating systems. A system of one- multiengine airplanes. § 23.1181, Designated Fire Zones; way clutches both prevents the The FAA data review conducted to Regions Included (Amendment 23–51); propeller shaft from driving the engine prepare these proposed special § 23.1189, Shutoff Means (Amendment input shafts and allows either engine to conditions is applicable only to the 23–43); § 23.1305, Powerplant drive the propeller should the other Model Pathfinder 21 airplane. For the Instruments (Amendment 23–52); and engine fail. concept of a single-propeller, § 23.1351, Electrical Systems and Propulsion System multiengine airplane to be extended to Equipment—General (Amendment 23– other projects, a separate analysis of the 49). The type certification basis for the The propulsion drive system includes accident and incident data for similarly Model Pathfinder 21 airplane also all parts necessary to transmit power sized airplanes would be required. If the includes parts 34 and 36, each as from the engines to the propeller shaft. advantages of centerline thrust amended at the time of certification. This includes couplings, universal compensated for the disadvantages of Soloy Corporation may also elect to joints, drive shafts, supporting bearings the non-fail-safe components, based on comply with subsequent part 23 for shafts, brake assemblies, clutches, the service history of similarly sized requirements to facilitate operators’ gearboxes, transmissions, any attached airplanes, development of separate compliance with corresponding part 135 accessory pads or drives, and any special conditions would be required. requirements. The type certification cooling fans that are attached to, or basis for this airplane will include mounted on, the propulsion drive Type Certification Basis exemptions, if any; equivalent level of system. The propulsion drive system for Under the provisions of 14 CFR part safety findings, if any; and the special this multiengine installation must be 21, § 21.101, Soloy Corporation must conditions adopted by this rulemaking designed with a ‘‘continue to run’’ show that the Model Pathfinder 21 action. philosophy. This means that it must be airplane continues to meet the If the Administrator finds that the able to power the propeller after failure applicable provisions of the regulations applicable airworthiness regulations of one engine or failure in one side of incorporated by reference in Type (part 23, as amended) do not contain the drive system, including any gear, Certificate (TC) Data Sheet A37CE or the adequate or appropriate safety standards bearing, or element expected to fail. applicable regulations in effect on the for the Model Pathfinder 21 airplane Common failures, such as oil pressure date of application for change. The because of a novel or unusual design loss or gear tooth failure, in the
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.206 pfrm08 PsN: 13SER1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49369 propulsion drive system must not the capability to burn through the failures would be equally catastrophic; prevent the propulsion system from firewall mandated by § 23.1191; therefore, steps must be taken to reduce providing adequate thrust. These design therefore, § 23.903(b)(1) requires that the potential for propeller system requirements, and other propulsion design precautions must be taken to structural failures. drive system requirements, are included minimize the hazards to the airplane in As discussed earlier, the FAA has in the part 33 special conditions, and, the event of a fire originating in the determined additional testing is therefore, are required as part of these engine that burns through the engine required for non-redundant components proposed special conditions. case. Similar to uncontained engine to ensure that equivalency to the fail- Section 23.903(b)(1) states, in part, failures, the conventional multiengine safe and isolation requirements of ‘‘Design precautions must be taken to airplane arrangement provides inherent § 23.903(c) is met. The Model Pathfinder minimize the hazards to the airplane in protection from engine-to-engine 21 airplane’s single propeller system the event of a rotor failure.’’ Part 33 damage associated with engine case must be installed and maintained in containment requirements address blade burn-through by placing the engines on such a manner as to substantially reduce failures but do not require containment opposite sides of the fuselage. The or eliminate the occurrence of failures of failed rotor disks; therefore, Model Pathfinder 21 airplane that would preclude continued safe § 23.903(b)(1) requires that airplane propulsion system does not have this flight and landing. To ensure the manufacturers minimize the hazards in inherent isolation; therefore, the FAA is propeller installation and production the event of a rotor failure. This is done requiring that engine type in a relevant and maintenance programs are by locating critical systems and installation to have either at least ten sufficient to achieve the fail-safe components out of impact areas as million hours of service time without an equivalency requirement, these much as possible. The separation engine case burn-through, or a firewall proposed special conditions include a inherent in conventional twin engine able to protect the operating engine from 2,500 cycle validation test. This arrangements by locating the engines on engine case burn-through installed corresponds to the FAA’s estimated opposite sides of the fuselage provides between the engines. annual usage for a turboprop airplane good protection from engine-to-engine Soloy Corporation is not required to operating in scheduled service. An damage. Although most multiengine show compliance to § 21.35, per airplane cycle includes idle, takeoff, installations have the potential for an § 21.115 because the Model Pathfinder climb, cruise, descent, and reverse. The uncontained failure of one engine 21 airplane certification is being test must utilize production parts damaging the other engine, service conducted under an STC project. installed on the engine and should history has shown that the risk of Section 21.35(f)(1), Flight Tests, requires include a wide range of ambient and striking the opposite engine is extremely aircraft incorporating turbine engines of wind conditions, several full stops, and low. a type not previously used in a type validation of scheduled and The Model Pathfinder 21 airplane certificated aircraft to operate for at least unscheduled maintenance practices. propulsion system installation does not 300 hours with a full complement of Furthermore, these special conditions have the inherent engine-to-engine engines that conform to a type require identification of the critical isolation of a conventional twin certificate as part of the certification parts of the propeller assembly, which turboprop airplane. For the Model flight test. The propulsion system are components whose failure during Pathfinder 21 airplane to obtain a level installation is, however, different from ground or flight operation could cause of safety equivalent to that of a any other airplane previously certified; a catastrophic effect on the airplane, conventional multiengine airplane, the therefore, the FAA is requiring as part including loss of the ability to produce effects of rotor failure must be of these special conditions that Soloy controllable thrust. The FAA is addressed. Soloy Corporation must Corporation show compliance with proposing to require that a critical parts demonstrate that the engine type in § 21.35(f)(1). plan, modeled after plans required by relevant installations has at least ten Joint Aviation Requirements 27 and 29 million hours of service time without a Propeller Installation for critical rotorcraft components, be high energy rotor failure (for example, As demonstrated by the data established and implemented for the disks, hubs, compressor wheels, and so discussed in the Safety Analysis section, critical components of the propeller forth). Additionally, for any lower propeller blade failures near the hub assembly. This plan draws the attention energy fragments released during this result in substantial airplane damage on of the personnel involved in the design, extensive service life of the engine (for a conventional twin turboprop airplane. manufacture, maintenance, and example, blades), a barrier must be One of the eight events was overhaul of a critical part to the special placed between the engines to contain catastrophic. Blade debris has damaged nature of the part. The plan should these low energy fragments. Even after critical components and structure of the define the details of relevant special installation of a barrier, engine-to- airplane, and large unbalance loads in instructions to be included in the engine isolation following failure of the propeller have led to engine, mount, Instructions for Continued either engine could be compromised and wing structural failure. In contrast, Airworthiness. The Instructions for through the common mount system or service history has demonstrated that Continued Airworthiness, required by shared system interfaces such as blade tip failures are not necessarily § 23.1529, should contain life limits, firewalls, electrical busses, or cowlings. catastrophic on a conventional mandatory overhaul intervals, and Soloy Corporation must, therefore, multiengine airplane because the conservative damage limits for return to demonstrate any loads transmitted flightcrew is able to secure the engine service and repair, as appropriate, for through the common mount system as a with the failed propeller and safely land the critical parts identified in result of an engine failure do not the airplane. However, if the Model accordance with these special prevent continued safe flight and Pathfinder 21 airplane’s single propeller conditions. landing with the operating engine. failed near the tip, the failure would be On a conventional multiengine Section 23.903(b)(1) also addresses likely to result in a catastrophic airplane, the flightcrew will secure an damage caused by engine case burn- accident caused by the total loss of engine to minimize effects of propeller through. Engine case burn-through thrust capability and severe vibration. imbalance. Most of these airplanes also results in a concentrated flame that has Other propeller system structural incorporate quick acting manual or
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.207 pfrm08 PsN: 13SER1 49370 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations automatic propeller feathering systems oil pressure, and the means to indicate adequate for multiengine, single that further reduce the time the airplane to the flightcrew when the propeller is propeller airplanes. In these special is exposed to the effects of propeller at the default fixed-pitch position. conditions, the airplane configuration imbalance. In addition to the propeller requirements specified in § 23.53(b)(1), Propulsion Instrumentation blade failures discussed earlier, the § 23.67(c)(1), § 23.69(b), and § 23.75(g) unbalanced condition could be caused On a conventional multiengine have been adapted to accommodate the by a propeller system failure such as airplane, the pilot has positive propeller system of the Model loss of a de-icing boot, malfunction of a indication of an inoperative engine Pathfinder 21 airplane to ensure a level de-icing boot in icing conditions, an oil created by the asymmetric thrust of safety equivalent to that of leak into a blade butt, asymmetric blade condition. The airplane will not yaw conventional multiengine airplanes. pitch, or a failure in a counterweight when an engine or a portion of the Airspeed Indicator attachment. The Model Pathfinder 21 propulsion drive system fails because of airplane design does not provide any the centerline thrust of the Model Section 23.1545(b)(5) provides one- means to reduce the vibration produced Pathfinder 21 airplane propulsion engine-inoperative marking by an unbalanced propeller; therefore, system installation. The flightcrew will requirements for the airspeed indicator. these proposed special conditions have to rely on other means to This rule is not adequate to address require that the engines, propulsion determine which engine or propulsion critical propeller control system failures drive system, engine mounts, primary drive system element has failed so as to on the Model Pathfinder 21 airplane. As airframe structure, and critical systems secure the correct engine; therefore, a result, these special conditions require must be designed to function safely in these special conditions require that a that the airspeed markings required by the high vibration environment positive indication of an inoperative § 23.1545(b)(5) be based on the most generated by those less severe propeller engine or a failed portion of the critical flight condition between one failures. In addition, the degree of flight propulsion drive system must be engine inoperative or a failed propeller deck vibration must not jeopardize the provided. control system in order to ensure a level crew’s ability to continue to operate the Section 23.1305 requires instruments of safety equivalent to that of airplane in a safe manner. Component for the fuel system, engine oil system, conventional multiengine airplanes. failures that generate vibrations beyond fire protection system, and propeller Airplane Flight Manual the capability of the airplane must be control system. This rule is intended for addressed as a critical part in the same powerplants consisting of a single- Sections 23.1585 and 23.1587 require manner as required for propeller blade engine, gearbox, and propeller. To pertinent information to be included in failures. protect the portions of the propulsion the Airplane Flight Manual (AFM). drive system that are independent of the These rules are not adequate to address Propeller Control System engines, additional instrumentation, critical propeller control system failures Propeller control system failures on a which includes oil pressure, oil on the Model Pathfinder 21 airplane. As conventional twin engine airplane may quantity, oil temperature, propeller a result, these special conditions require result in a one-engine-inoperative speed, gearbox torque, and chip that the critical procedures and configuration. To ensure an equivalent detection, is required. information required by § 23.1585, level of safety in the event of a propeller paragraph (c), and § 23.1587, paragraphs Fire Protection System control system failure, these special (c)(2) and (c)(4), include consideration conditions require that the Model On a conventional twin engine of these critical propeller control system Pathfinder 21 airplane propulsion airplane, the engines are sufficiently failures in order to ensure a level of system be designed such that the separated to eliminate the possibility of safety equivalent to that of conventional airplane meets the one-engine- a fire spreading from one engine to multiengine airplanes. inoperative requirements of § 23.53 and another. Since the Soloy Dual Pac § 23.67 after the most critical propeller propulsion system is installed in the Discussion of Comments control system failure. nose of the airplane, the engines are Notice of proposed special conditions, There are several means to separated only by a firewall. The fire Notice No. 23–98–05–SC, Docket No. accomplish these special condition protection system of the Model CE149, for the Soloy Corporation Model elements. Soloy Corporation plans to Pathfinder 21 airplane must include Pathfinder 21 airplane was published in address them by providing a mechanical features to isolate each fire zone from the Federal Register on March 25, 1999 high-pitch stop, which would be set to any other zone and the airplane to (64 FR 14401). On April 21, 1999, Soloy a ‘‘get home’’ pitch position, thereby maintain isolation of the engines during Corporation requested that the comment preventing the propeller blades from a fire; therefore, these special conditions period be extended to allow them rotating to a feather-pitch position when mandate that the firewall required by sufficient time to comment on the oil pressure is lost in the propeller § 23.1191 be extended to provide proposals. The FAA reopened the control system. This would allow the firewall isolation between either engine comment period in the Federal Register propeller to continue to produce a and the propulsion drive system. These dated June 1, 1999 (64 FR 29247). The minimum amount of thrust as a fixed- special conditions require that heat new comment period closed July 1, pitch propeller. These special radiating from a fire originating in any 1999. The following is a summary of the conditions provide design requirements fire zone must not affect components in comments received and a response to that the FAA has determined are critical adjacent compartments in such a way as each comment. to a default fixed-pitch position feature. to endanger the airplane. Only one commenter, Hartzell These include maintaining engine and Propeller, Inc., responded to the notice propeller limits following an automatic Airplane Performance of proposed special conditions. Their or manual pitch change, the ability to Section 23.67, and paragraphs in comments are summarized below: manually select and deselect the default § 23.53, § 23.69 and § 23.75, provide 1. Comment: This requirement has no fixed-pitch position in flight in the performance requirements for clearly stated objectives. Is the purpose event of a propeller control system multiengine airplanes with one engine of each cycle to exercise the blade pitch failure that does not result in a loss of inoperative. These rules are not mechanism or to subject the propeller to
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Each airplane must be able to Authority: 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR apparent benefit in adding 2,500 cycles maintain at least the following climb 11.28 and 49. to this experience. gradients with the airplane in the FAA Response: The purpose of this configuration prescribed in paragraph The Special Conditions test is not only for the propeller alone, (a) of this section: 1.5 percent at a Accordingly, pursuant to the but also for the entire propulsion system pressure altitude of 5,000 feet and a authority delegated to me by the of the Pathfinder 21 airplane. The object speed not less than 1.2 VS1, and at Administrator, the following special of this test is to establish the reliability standard temperature (41°F); and 0.75 conditions are issued as part of the type of the engines, combining gearbox, and percent at a pressure altitude of 5,000 certification basis for Cessna Model the propeller system together, as feet at a speed not less than 1.2 VS1 and 208B airplanes modified by the Soloy installed on the Pathfinder 21 airplane. 81°F (standard temperature plus 40°F). Corporation. This propulsion system reliability is The minimum climb gradient specified 1. Propulsion System. being imposed due to a multiengine in paragraphs (c)(2)(i) and (ii) of this (a) Engine Requirements. The aircraft having only a single propeller. section must vary linearly between 41°F propulsion system must comply with 2. Comment: Balance criteria is very and 81°F and must change at the same the Soloy Corporation Soloy Dual Pac subjective. While most could agree rate up to the maximum operating Engine Special Conditions (Docket No. when something is within acceptable temperature approved for the airplane.’’ 93–ANE–14; No. 33–ANE–01), limits, people’s tolerance for unbalance 4. Comment: Any means to provide a published in Federal Register, Volume can vary widely, making this 62, Number 33, dated February 19, requirement difficult to quantify. The secondary method to select blade angle would affect the type design of the 1997. ability of the propeller and airframe (b) Engine Rotor Failure. In addition structure to withstand unbalance far propeller and introduce unconventional features which could adversely affect to showing compliance with exceeds that of the crew and passengers 23.903(b)(1) (Amendment 23–40), the established reliability of the to tolerate it. compliance must be shown with the propeller. FAA Response: Since this design is following: being classified as a multiengine FAA Response: The FAA agrees and (1) The engine type to be installed aircraft, the flight crew will not have the this requirement has been removed from must be shown to have demonstrated a ability to shutdown and feather an the special conditions. minimum of ten million hours of actual engine that is running rough due to 5. Comment: The special conditions service experience in installations of some form of imbalance and continue state that ‘‘a means to indicate to the equivalent or higher disk rotation on with the remaining powerplant. A flight crew when the propeller is at the loading without an uncontained high Pathfinder 21 flightcrew may be default fixed-pitch position must be energy rotor failure; and a shield required to operate the propulsion provided.’’ The obvious signal that the capable of preventing all fragments of an system at higher levels of imbalance propeller has defaulted to a fixed-pitch energy level that have been released than might be required of a condition is a reduction in RPM. during uncontained engine failures conventional twin-engine airplane. This FAA Response: The FAA agrees and experienced in service from impacting special condition is an attempt to this requirement has been removed from the adjacent engine must be installed; quantify those levels of imbalance. the special conditions. and 3. Comment: There is no (2) It must be shown that the adjacent § 23.53(b)(1)(ii). The text of § 23.53(b)(1) Applicability engine is not affected following any specifically states both engines are expected engine failure. As discussed above, these special operative. Section 23.67 makes specific (c) Engine case Burn-Through. In conditions are applicable to the Soloy reference to reciprocating engines and addition to showing compliance with Corporation Model Pathfinder 21 weights below 6,000 pounds, neither of § 23.903(b)(1) (Amendment 23–40), the airplane . Should Soloy Corporation which apply to the Pathfinder 21. engine type to be installed must be apply at a later date for a supplemental FAA Response: Section 23.53(b)(1)(ii), shown to have demonstrated a type certificate to modify any other Takeoff speeds, in Amendment 23–34 minimum of ten million hours of actual model included on TC No. A37CE, the specifically states, ‘‘Each normal, utility, service experience in installations of same novel or unusual design feature, and acrobatic category airplane, upon equivalent or higher combustor the special conditions would apply to reaching a height of 50 feet above the pressures and temperatures without an that model as well under the provisions takeoff surface, must have a speed of not engine case burn-through event; or a of § 21.101(a)(1). less than the following: For multiengine firewall capable of containing a fire airplanes, the higher of 1.3 VS1, or any Conclusion originating in the engine that burns lesser speed, not less than VX plus 4 through the engine case must be knots, that is shown to be safe under all This action affects only certain novel installed between the engines. conditions, including turbulence and or unusual design features on one model (d) Propulsion System Function and complete engine failure.’’ of airplanes. It is not a rule of general Reliability Testing. The applicant must Section 23.67(c), Climb: one engine applicability, and it affects only the complete the testing required by inoperative, in Amendment 23–42 applicant who applied to the FAA for § 21.35(f)(1) (Amendment 21–51). specifically states, ‘‘For normal, utility, approval of these features on the 2. Propeller Installation. and acrobatic category turbine engine- airplane. (a) The applicant must complete a powered multiengine airplanes the List of Subjects in 14 CFR Part 23 2,500 airplane cycle evaluation of the following apply: The steady climb propeller installation. This evaluation gradient must be determined at each Aircraft, Aviation safety, Signs and may be accomplished on the airplane in weight, altitude, and ambient symbols. a combination of ground and flight
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If the indicate when an engine is no longer any configuration that is not extremely testing is accomplished on a ground test able to provide torque to the propeller. improbable. facility, the test configuration must This means may consist of (b) In lieu of § 23.67(c)(1) include sufficient interfacing system instrumentation required by other (Amendment 23–42), the steady climb hardware to simulate the actual airplane sections of part 23 or these special gradient must be determined at each installation, including the engines, conditions if it is determined that those weight, altitude, and ambient propulsion drive system, and mount instruments will readily alert the temperature within the operational system. flightcrew when an engine is no longer limits established by the applicant, with (b) Critical Parts. (1) The applicant able to provide torque to the propeller. the airplane in the following must define the critical parts of the (b) Propulsion Drive System configurations: propeller assembly. Critical parts are Instrumentation. In addition to the (1) Critical engine inoperative, those parts whose failure during ground requirements of § 23.1305 (Amendment remaining engine at not more than or flight operation could cause a 23–52), the following instruments must maximum continuous power or thrust, catastrophic effect to the airplane, be provided for any power gearbox or wing flaps in the most favorable including loss of the ability to produce transmission: position, and means for controlling the controllable thrust. In addition, parts, of (1) An oil pressure warning means engine cooling air supply in the position which failure or probable combinations and indicator for each pressure- used in the engine cooling tests required of failures would result in a propeller lubricated gearbox; by § 23.1041 (Amendment 23–7) unbalance greater than that defined (2) A low oil quantity indicator for through § 23.1045 (Amendment 23–7); under paragraph (c), are classified as each gearbox, if lubricant is self- critical parts. contained; (2) Both engines operating normally (2) The applicant must develop and (3) An oil temperature indicator; and the propeller control system failed implement a plan to ensure that the (4) A tachometer for the propeller; in any configuration that is not critical parts identified in paragraph (5) A torquemeter for the transmission extremely improbable, the engines at (b)(1) are controlled during design, driving a propeller shaft if the sum of not more than maximum continuous manufacture, and throughout their the maximum torque that each engine is power or thrust, wing flaps in the most service life so that the risk of failure in capable of producing exceeds the favorable position, and means for service is minimized. maximum torque for which the controlling the engine cooling air (c) Propeller Unbalance. The propulsion drive system has been supply in the position used in the applicant must define the maximum certified under 14 CFR part 33; and engine cooling tests required by allowable propeller unbalance that will (6) A chip detecting and indicating § 23.1041 (Amendment 23–7) through not cause damage to the engines, system for each gearbox. § 23.1045 (Amendment 23–7). propulsion drive system, engine 5. Fire Protection System. (c) Enroute climb/descent. mounts, primary airframe structure, or (a) In addition to § 23.1191(a) and (b) (1) Compliance to § 23.69(a) to critical equipment that would (not amended), (Amendment 23–50) must be shown. jeopardize the continued safe flight and (1) Each engine must be isolated from (2) The steady gradient and rate of landing of the airplane. Furthermore, the other engine and the propulsion climb/descent must be determined at the degree of flight deck vibration drive system by firewalls, shrouds, or each weight, altitude, and ambient caused by this unbalance condition equivalent means; and temperature within the operational must not jeopardize the crew’s ability to (2) Each firewall or shroud, including limits established by the applicant continue to operate the airplane in a applicable portions of the engine with— safe manner. cowling, must be constructed so that no (i) The critical engine inoperative, the 3. Propeller Control System. hazardous quantity of liquid, gas, or engines at not more than maximum (a) The propeller control system must flame can pass from the isolated continuous power, the wing flaps be independent of the turbine engines compartment to the other engine or the retracted, and a climb speed not less propulsion drive system and so that such that a failure in either turbine than 1.2 VS1. firewall temperatures under all normal engine or an engine control system will (ii) Both engines operating normally or failure conditions would not result in not result in loss of propeller control. and the propeller control system failed auto-ignition of flammable fluids and (b) The propeller control system must in any configuration that is not vapors present in the other engine and be designed so that the occurrence of extremely improbable, the engines at any single failure or probable the propulsion drive system. (b) Components, lines, and fittings not more than maximum continuous combination of failures in the system power, the wing flaps retracted, and a which would prevent the propulsion located in the engine and propulsion drive system compartments must be climb speed not less than 1.2 VS1. system from producing thrust at a level (d) In addition to § 23.75 (Amendment required to meet § 23.53(b)(1)(ii) constructed of such materials and located at such distances from the 23–42), the horizontal distance (Amendment 23–34) and § 23.67(c) necessary to land and come to a (Amendment 23–42) is extremely firewall that they will not suffer damage sufficient to endanger the airplane if a complete stop from a point 50 feet above improbable. the landing surface must be determined (c) The propeller control system must fire is present in an adjacent engine as required in § 23.75 (Amendment 23– be designed to implement a default compartment. 42) with both engines operating fixed-propeller pitch position in the 6. Airplane Performance. normally and the propeller control event of a propeller control system system failed in any configuration that failure: (a) In addition to § 23.53(b)(1) (1) A pitch change to the default (Amendment 23–34), the airplane, upon is not extremely improbable. fixed-pitch position must not exceed reaching a height of 50 feet above the 7. Airspeed Indicator. any limitation established as part of the takeoff surface level, must have reached engine and propeller type certificates; a speed of not less than 1.3 VS1, or any In lieu of the requirements of lesser speed, not less than VX plus 4 § 23.1545(b)(5) (Amendment 23–23), for 4. Propulsion Instrumentation. knots, that is shown to be safe under all one—engine inoperative or the propeller (a) Engine Failure Indication. A conditions, including turbulence and control system failed in any positive means must be provided to the propeller control system failed in configuration that
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Airspace Branch, ACE–520C, Federal of 5,000 feet, if VY is less than 100 feet [FR Doc. 99–23721 Filed 9–10–99; 8:45 am] Aviation Administration, 601 East 12th per minute, or the highest 1,000-foot BILLING CODE 4910±13±P Street, Kansas City, MO 64106; altitude (at or above 5,000 feet) at which telephone: (816) 426–3408. the VY is 100 feet per minute or more. SUPPLEMENTARY INFORMATION: This Each side of the sector must be labeled DEPARTMENT OF TRANSPORTATION amendment to 14 CFR 71 revises the to show the altitude for the Federal Aviation Administration Class E airspace at Sikeston, MO. A corresponding VY. review of the Class E airspace for 8. Airplane Flight Manual. (a) In 14 CFR Part 71 Sikeston Memorial Municipal Airport, addition to the requirements of MO, indicates it does not meet the § 23.1585(c) (Amendment 23–34), the [Airspace Docket No. 99±ACE±43] criteria for 700 feet AGL airspace following information must be included required for diverse departures as in the Airplane Flight Manual (AFM): Amendment to Class E Airspace; specified in FAA Order 7400.2D. The (1) Procedures for maintaining or Sikeston, MO criteria in FAA Order 7400.2D for an recovering control of the airplane at aircraft to reach 1200 feet AGL is based AGENCY: Federal Aviation speeds above and below VS1 with the on a standard climb gradient of 200 feet Administration (FAA), DOT. propeller control system failed in any per mile plus the distance from the configuration that is not extremely ACTION: Direct final rule; request for Airport Reference Point (ARP) to the improbable. comments. end of the outermost runway. Any fractional part of a mile is converted to (2) Procedures for making a landing SUMMARY: This action amends Class E the next higher tenth of a mile. The with the propeller control system failed airspace area at Sikeston Memorial amendment at Sikeston Memorial in any configuration that is not Municipal Airport, Sikeston, MO. A Municipal Airport, MO, will provide extremely improbable and procedures review of the Class E airspace are for additional controlled airspace for for making a go-around with the Sikeston Memorial Municipal Airport aircraft operating under IFR, include the propeller control system failed in any indicates it does not comply with the Sikeston NDB and coordinates, and configuration that is not extremely criteria for 700 feet Above Ground Level comply with the criteria of FAA Order improbable, if this latter maneuver can (AGL) airspace required for diverse 7400.2D. The area will be depicted on be performed safely; otherwise, a departures as specified in FAA Order appropriate aeronautical charts. Class E warning against attempting the 7400.2D. The Class E airspace has been airspace areas extending upward from maneuver. enlarged to conform to the criteria of 700 feet or more above the surface of the (3) Procedures for obtaining the best FAA Order 7400.2D. earth are published in paragraph 6005 of performance with the propeller control In addition, the Sikeston FAA Order 7400.9F, dated September system failed in any configuration that Nondirectional Radio Beacon (NDB) and 10, 1998, and effective September 16, is not extremely improbable, including coordinates have been added to the text 1998, which is incorporated by the effects of the airplane configuration. header and reference to the NDB is reference in 14 CFR 71.1. The Class E (b) In lieu of the requirements of included in the airspace description. airspace designation listed in this § 23.1587 (c)(2) and (c)(4) (Amendment The intended effect of this rule is to document will be published 23–39), the following information must provide additional controlled Class E subsequently in the Order. be furnished in the Airplane Flight airspace for aircraft operating under Manual: Instrument Flight Rules (IFR), add the The Direct Final Rule Procedure (1) The best rate-of-climb speed or the Sikeston NDB and coordinates, and The FAA anticipates that this minimum rate-of-descent speed with comply with the criteria of FAA Order regulation will not result in adverse or one engine inoperative or the propeller 7400.2D. negative comment and, therefore, is control system failed in any DATES: Effective date: 0901 UTC, issuing it as a direct final rule. Previous configuration that is not extremely December 30, 1999. actions of this nature have not been improbable, whichever is more critical. Comments for inclusion in the Rules controversial and have not resulted in (2) The steady rate or gradient of Docket must be received on or before adverse comments or objections. The climb determined in Special Condition October 20, 1999. amendment will enhance safety for all # 6, Airplane Performance, paragraph ADDRESSES: Send comments regarding flight operations by designating an area (b)(1) or paragraph (b)(2), whichever is the rule in triplicate to: Manager, where VFR pilots may anticipate the more critical, and the airspeed, power, Airspace Branch, Air Traffic Division, presence of IFR aircraft at lower and airplane configuration. ACE–520, Federal Aviation altitudes, especially during inclement (c) The steady rate and gradient of Administration, Docket Number 99– weather conditions. A greater degree of climb determined in Special Condition ACE–43, 601 East 12th Street, Kansas safety is achieved by depicting the area #6, Airplane Performance, paragraph (c), City, MO 64106. on aeronautical charts. Unless a written must be furnished in the Airplane Flight The official docket may be examined adverse or negative comment, or a Manual. in the Office of the Regional Counsel for written notice of intent to submit an (d) The landing distance determined the Central Region at the same address adverse or negative comment is received under § 23.75 (Amendment 23–42) or in between 9:00 a.m. and 3:00 p.m., within the comment period, the Special Condition #6, Airplane Monday through Friday, except Federal regulation will become effective on the Performance, paragraph (d) of these holidays. date specified above. After the close of proposed special conditions, whichever An informal docket may also be the comment period, the FAA will is more critical. examined during normal business hours publish a document in the Federal
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Register indicating that no adverse or implications to warrant the preparation Issued in Kansas City, MO, on September negative comments were received and of a Federalism Assessment. 3, 1999. confirming the date on which the final The FAA has determined that this Herman J. Lyons, Jr., rule will become effective. If the FAA regulation is noncontroversial and Manager, Air Traffic Division, Central Region. does receive, within the comment unlikely to result in adverse or negative [FR Doc. 99–23724 Filed 9–10–99; 8:45 am] period, an adverse or negative comment, comments. For the reasons discussed in BILLING CODE 4910±13±M or written notice of intent to submit the preamble, I certify that this such a comment, a document regulation (1) is not a ‘‘significant withdrawing the direct final rule will be regulatory action’’ under Executive DEPARTMENT OF TRANSPORTATION published in the Federal Register, and Order 12866; (2) is not a ‘‘significant a notice of proposed rulemaking may be rule’’ under Department of Federal Aviation Administration published with a new comment period. Transportation (DOT) Regulatory 14 CFR Part 71 Comments Invited Policies and Procedures (44 FR 11034, [Airspace Docket No. 99±ACE±42] Although this action is in the form of February 26, 1979); and (3) if a final rule and was not preceded by a promulgated, will not have a significant economic impact, positive or negative, Amendment to Class E Airspace; notice of proposed rulemaking, Malden, MO comments are invited on this rule. on a substantial number of small entities Interested persons are invited to under the criteria of the Regulatory AGENCY: Federal Aviation comment on this rule by submitting Flexibility Act. Administration (FAA), DOT. such written data, views, or arguments List of Subjects in 14 CFR Part 71 ACTION: Direct final rule; request for as they may desire. Communications comments. should identify the Rules Docket Airspace, Incorporation by reference, number and be submitted in triplicate to Navigation (air). SUMMARY: This action amends Class E the address specified under the captain airspace area at Malden Municipal Adoption of the Amendment ADDRESSES. All communications Airport, Malden, MO. A review of the Class E airspace area for Malden received on or before the closing date Accordingly, the Federal Aviation for comments will be considered, and Municipal Airport indicates it does not Administration amends 14 CFR part 71 comply with the criteria for 700 feet this rule may be amended or withdrawn as follows: in light of the comments received. Above Ground Level (AGL) airspace required for diverse departures as Factual information that supports the PART 71ÐDESIGNATION OF CLASS A, specified in FAA Order 7400.2D. The commenter’s ideas and suggestions is CLASS B, CLASS C, CLASS D, AND Class E airspace has been enlarged to extremely helpful in evaluating the CLASS E AIRSPACE AREAS; conform to the criteria of FAA Order effectiveness of this action and AIRWAYS; ROUTES; AND REPORTING determining whether additional 7400.2D. POINTS The intended effect of this rule is to rulemaking action would be needed. provide additional controlled Class E Comments are specifically invited on 1. The authority citation for part 71 airspace for aircraft operating under the overall regulatory, economic, continues to read as follows: environmental, and energy-related Instrument Flight Rules (IFR) and Authority: 49 U.S.C. 106(g), 40103, 40113, aspects of the rule that might suggest a comply with the criteria of FAA Order 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 7400.2D. need to modify the rule. All comments 1963 Comp., p. 389. submitted will be available, both before DATES: Effective date: 0901 UTC, and after the closing date for comments, § 71.1 [Amended] December 30, 1999. in the Rules Docket for examination by Comments for inclusion in the Rules interested persons. A report that 2. The incorporation by reference in Docket must be received on or before summarizes each FAA-public contact 14 CFR 71.1 of Federal Aviation October 20, 1999. concerned with the substance of this Administration Order 7400.9F, Airspace ADDRESSES: Send comments regarding action will be filed in the Rules Docket. Designations and Reporting Points, the rule in triplicate to: Manager, Commenters wishing the FAA to dated September 10, 1998, and effective Airspace Branch, Air Traffic Division, acknowledge receipt of their comments September 16, 1998, is amended as ACE–520, Federal Aviation submitted in response to this rule must follows: Administration, Docket Number 99– submit a self-addressed, stamped Paragraph 6005 Class E airspace areas ACE–42, 601 East 12th Street, Kansas postcard on which the following extending upward from 700 feet or more City, MO 64106. statement is made: ‘‘Comments to above the surface of the earth. The official docket may be examined Docket No. 99–ACE–43.’’ The postcard * * * * * in the Office of the Regional Counsel for will be date stamped and returned to the the Central Region at the same address commenter. ACE MO E5 Sikeston, MO [Revised] between 9:00 a.m. and 3:00 p.m., Sikeston Memorial Municipal Airport, MO Monday through Friday, except Federal Agency Findings [Lat. 36°53′56′′N., long. 89°33′42′′W.) holidays. The regulations adopted herein will Sikeston NDB An informal docket may also be not have substantial direct effects on the [Lat. 36°53′16′′N., long. 89°33′53′′W.) examined during normal business hours States, on the relationship between the That airspace extending upward from 700 in the Air Traffic Division at the same national government and the States, or feet above the surface within a 6.5-mile address listed above. on the distribution of power and radius of Sikeston Memorial Municipal FOR FURTHER INFORMATION CONTACT: responsibilities among the various Airport and within 2.6 miles each side of the Kathy Randolph, Air Traffic Division, levels of government. Therefore, in 021° bearing from the Sikeston NDB Airspace Branch, ACE–520C, Federal accordance with Executive Order 12612, extending from the 6.5-mile radius to 7 miles Aviation Administration, 601 East 12th it is determined that this final rule does north of the airport. Street, Kansas City, MO 64106; not have sufficient federalism * * * * * telephone: (816) 426–3408.
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SUPPLEMENTARY INFORMATION: This a notice of proposed rulemaking may be rule’’ under Department of amendment to 14 CFR 71 revises the published with a new comment period. Transportation (DOT) Regulatory Class E airspace at Malden, MO. A Comments Invited Policies and Procedures (44 FR 11034, review of the Class E airspace for February 26, 1979); and (3) if Malden Municipal Airport, MO, Although this action is in the form of promulgated, will not have a significant indicates it does not meet the criteria for a final rule and was not preceded by a economic impact, positive or negative, notice of proposed rulemaking, 700 feet AGL airspace required for on a substantial number of small entities comments are invited on this rule. diverse departures as specified in FAA under the criteria of the Regulatory Interested persons are invited to Order 7400.2D. The criteria in FAA Flexibility Act. Order 7400.2D for an aircraft to reach comment on this rule by submitting 1200 feet AGL is based on a standard such written data, views, or arguments List of Subjects in 14 CFR Part 71 climb gradient of 200 feet per mile plus as they may desire. Communications the distance from the Airport Reference should identify the Rules Docket Airspace, Incorporation by reference, Point (ARP) to the end of the outermost number and be submitted in triplicate to Navigation (air). the address specified under the caption runway. Any fractional part of a mile is Adoption of the Amendment converted to the next higher tenth of a ADDRESSES. All communications mile. The amendment at Malden received on or before the closing date Accordingly, the Federal Aviation Municipal Airport, MO, will provide for comments will be considered, and Administration amends 14 CFR part 71 additional controlled airspace for this rule may be amended or withdrawn as follows: aircraft operating under IFR, and in light of the comments received. comply with the criteria of FAA Order Factual information that supports the PART 71ÐDESIGNATION OF CLASS A, 7400.2D. The area will be depicted on commenter’s ideas and suggestions is CLASS B, CLASS C, CLASS D, AND appropriate aeronautical charts. Class E extremely helpful in evaluating the CLASS E AIRSPACE AREAS; airspace areas extending upward from effectiveness of this action and AIRWAYS; ROUTES; AND REPORTING 700 feet or more above the surface of the determining whether additional POINTS earth are published in paragraph 6005 of rulemaking action would be needed. FAA Order 7400.9F, dated September Comments are specifically invited on 1. The authority citation for part 71 the overall regulatory, economic, 10, 1998, and effective September 16, continues to read as follows: environmental, and energy-related 1998, which is incorporated by Authority: 49 U.S.C. 106(g), 40103, 40113, reference in 14 CFR 71.1. The Class E aspects of the rule that might suggest a need to modify the rule. All comments 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– airspace designation listed in this 1963 Comp., p. 389. document will be published submitted will be available, both before and after the closing date for comments, subsequently in the Order. § 71.1 [Amended] in the Rules Docket for examination by The Direct Final Rule Procedure interested persons. A report that 2. The incorporation by reference in summarizes each FAA-public contact 14 CFR 71.1 of Federal Aviation The FAA anticipates that this concerned with the substance of this Administration Order 7400.9F, Airspace regulation will not result in adverse or action will be filed in the rules Docket. Designations and Reporting Points, negative comment and, therefore, is Commenters wishing the FAA to dated September 10, 1998, and effective issuing it as a direct final rule. Previous acknowledge receipt of their comments actions of this nature have not been September 16, 1998, is amended as submitted in response to this rule must follows: controversial and have not resulted in submit a self-addressed, stamped adverse comments or objections. The postcard on which the following Paragraph 6005 Class E airspace areas amendment will enhance safety for all statement is made: ‘‘Comments to extending upward from 700 feet or more flight operations by designating an area Docket No. 99–ACE–42.’’ The postcard above the surface of the earth. where VFR pilots may anticipate the will be date stamped and returned to the * * * * * presence of IFR aircraft at lower commenter. altitudes, especially during inclement ACE MO E5 Malden, MO [Revised] weather conditions. A greater degree of Agency Findings Malden Municipal Airport, MO safety is achieved by depicting the area The regulations adopted herein will (Lat. 36°36′02′′N., long. 89°59′32′′W.) on aeronautical charts. Unless a written not have substantial direct effects on the Malden VORTAC adverse or negative comment, or a States, on the relationship between the (Lat. 36°33′18′′N., long. 89°54′41′′W.) written notice of intent to submit an national government and the States, or That airspace extending upward from 700 adverse or negative comment is received on the distribution of power and feet above the surface within a 6.7-mile within the comment period, the responsibilities among the various radius of Malden Municipal Airport and regulation will become effective on the levels of government. Therefore, in within 2.6 miles each side of the 121° radial date specified above. After the close of accordance with Executive Order 12612, of the Malden VORTAC extending from the the comment period, the FAA will it is determined that this final rule does 6.7-mile radius to 7 miles southeast of the publish a document in the Federal not have sufficient federalism VORTAC. Register indicating that no adverse or implications to warrant the preparation * * * * * negative comments were received and of a Federalism Assessment. Issued in Kansas City, MO, on September confirming the date on which the final The FAA has determined that this 3, 1999. rule will become effective. If the FAA regulation is noncontroversial and Herman J. Lyons, Jr., does receive, within the comment unlikely to result in adverse or negative period, an adverse or negative comment, comments. For the reasons discussed in Manager, Air Traffic Division, Central Region. or written notice of intent to submit the preamble, I certify that this [FR Doc. 99–23723 Filed 9–10–99; 8:45 am] such a comment, a document regulation (1) is not a ‘‘significant BILLING CODE 4910±13±M withdrawing the direct final rule will be regulatory action’’ under Executive published in the Federal Register, and Order 12866; (2) is not a ‘‘significant
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DEPARTMENT OF TRANSPORTATION description of the Class E airspace. After Adoption of the Amendment careful review of all available In consideration of the foregoing, the Federal Aviation Administration information related to the subject Federal Aviation administration amends presented above, the FAA has 14 CFR Part 71 14 CFR part 71 as follows: determined that air safety and the [Airspace Docket No. 98±ACE±34] public interest require adoption of the PART 71ÐDESIGNATION OF CLASS A, rule. The FAA has determined that this CLASS B, CLASS C, CLASS D, AND Amendment to Class E Airspace; correction will not change the meaning CLASS E AIRSPACE AREAS; Kansas City, MO of the action nor add any additional AIRWAYS; ROUTES; AND REPORTING AGENCY: Federal Aviation burden on the public beyond that POINTS Administration [FAA], DOT. already published. 1. The authority citation for Part 71 ACTION: Final rule. Interested parties were invited to continues to read as follows: participate in this rulemaking SUMMARY: Authority: 49 U.S.C. 106(g), 40103, 40113, This notice amends the Class proceeding by submitting written E airspace area at Kansas City 40120; E.O. 10854, 24 FR 9565, 3 CFR 1959– comments on the proposal to the FAA. International Airport, MO. The Kansas 1963 Comp., p. 389. No comments objecting to the proposal City VHF Omnidirectional Range/ were received. Class E airspace areas § 71.1 [Amended] Tactical Air Navigation (VORTAC) has 2. The incorporation by reference in been relocated from its present position extending upward from 700 feet or more above the surface of the earth are 14 CFR 71.1 of Federal Aviation to the Kansas City International airport, Administration Order 7400.9F, Airspace MO. Relocating the Kansas City published in paragraph 6005 of FAA order 7400.9F, dated September 10, Designations and Reporting Points, VORTAC requires amending the radial dated September 10, 1998, and effective for the VHF Omnidirectional Range/ 1998, and effective September 16, 1998, which is incorporated by reference in 14 September 16, 1998, is amended as Distance Measuring Equipment (VOR/ follows: DME) or Tactical Air Navigation CFR 71.1. The Class E airspace (TACAN) Runway (RWY) 27, Standard designation listed in this document will Paragraph 6005 Class E airspace areas Instrument Approach Procedure (SIAP). be published subsequently in the Order. extending upward from 700 feet or more above the surface of the earth. Also, a review of the Class E airspace The Rule area for Kansas City International * * * * * Airport indicates it does not comply This amendment to part 71 of the ACE MO E5 Kansas City International with the criteria for 700 feet Above Federal Regulations (14 CFR part 71) Airport, MO Ground Level (AGL) airspace required amends the Class E airspace area at Kansas City International Airport, MO for diverse departures as specified in Kansas city, MO, by providing (Lat. 39°17′51′′N., long. 94°42′50′′W.) FAA Order 7400.2D. This notice additional controlled airspace for Kansas City Downtown Airport, MO enlarges the Class E airspace to conform aircraft executing the VOR/DME or (Lat. 39°07′24′′N., long. 94°35′34′′W.) to the criteria of FAA Order 7400.2D. TACAN RWY 27 SIAP to the Kansas Fort Leavenworth, Sherman Army Airfield (AAF), KS The review indicated the Instrument City International airport, and comply ° ′ ′′ ° ′ ′′ Landing System (ILS) localizer RWY (Lat. 39 22 06 N., long. 94 54 53 W.) with the criteria of FAA Order 7400.2D. Kansas City, VORTAC 19R, ILS RWY 19L, ILS RWY 1L, ILS This action also corrects the legal (Lat. 39°17′07′′N., long. 94°44′13′′W.) RWY 1R, and coordinates should be description of the airspace. The area DOTTE LOM included in the text header for the will be depicted on appropriate (Lat. 39°13′15′′N., long. 94°45′00′′W.) Kansas City International Airport, MO. aeronautical charts. Riverside VOR/DME Minor corrections are also being made (Lat. 39°07′14′′N., long. 94°35′48′′W.) to the legal description of the Kansas The FAA has determined that this ILS RWY 19R localizer ° ′ ′′ ° ′ ′′ City International Airport Class E regulation only involves an established (Lat. 39 17 24 N., long. 94 43 49 W.) airspace. body of technical regulations for which ILS RWY 19L localizer frequent and routine amendments are (Lat. 39°16′44′′N., long. 94°42′35′′W.) EFFECTIVE DATE: 0901 UTC November 4, ILS RWY 1L localizer 1999. necessary to keep them operationally ° ′ ′′ ° ′ ′′ current. Therefore, this regulation (1) is (Lat. 39 19 30 N., long. 94 43 12 W.) FOR FURTHER INFORMATION CONTACT: ILS RWY 1R localizer not a ‘‘significant regulatory action’’ Kathy Randolph, Air Traffic Division, (Lat. 39°18′34′′N., long. 94°42′03′′W.) under Executive Order 12866; (2) is not Airspace Branch, ACE–520C, Federal That airspace extending upward from 700 a ‘‘significant rule’’ under DOT Aviation Administration, 601 E. 12th feet above the surface within a 7.6-mile Regulatory Policies and Procedures (44 Street, Kansas City, MO 64106; radius of the Kansas City International FR 11034; February 26, 1979); and (3) telephone: (816) 426–3408. Airport and within 4.4 miles each side of the does not warrant preparation of a Kansas City International Runway 19R ILS SUPPLEMENTARY INFORMATION: Regulatory Evaluation as the anticipated localizer north course and within 4.4 miles History impact is so minimal. Since this is a east of the Kansas City International Runway routine matter that will only affect air 19L ILS localizer north course extending On July 19, 1999, the FAA proposed from the 7.6-mile radius to 21.7 miles north to amend part 71 of the Federal traffic procedures and air navigation, it of the DOTTE LOM and within 4.4 miles Regulations (14 CFR part 71) by is certified that this rule will not have each side of the 093° radial of the Kansas City amending the Class E airspace area at a significant economic impact on a VORTAC extending from the Kansas City Kansas City, MO (64 FR 38607). This substantial number of small entities International Airport 7.6-mile radius to 12 action will provide additional under the criteria of the Regulatory miles east of the Kansas City VORTAC, and Flexibility Act. within 2.5 miles west of the Kansas City controlled airspace to accommodate the International Runway 1L ILS localizer south VOR/DME or TACAN RWY 27 SIAP and List of Subjects in 14 CFR Part 71 course and within 2.6 miles each side of the comply with the criteria of FAA Order Kansas City International Runway 1R ILS 7400.2D. Minor corrections are also Aviation, Incorporation by reference, localizer course extending from the 7.6-mile being made to the text header and legal Navigation (air). radius to 9.5 miles south of the DOTTE LOM
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.219 pfrm08 PsN: 13SER1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49377 and within a 6.7-mile radius of the Kansas 1. FAA Public Inquiry Center (APA– previously issued by the FAA in a City Downtown Airport and within 3 miles 200). FAA Headquarters Building, 800 National Flight Data Center (NFDC) ° each side of the 210 radial of the Riverside Independence Avenue, SW., Notice to Airmen (NOTAM) as an VOR/DME extending from the 6.7-mile radius to 12.6 miles southwest of the Washington, DC 20591; or emergency action of immediate flight Downtown Airport, and within a 6.5-mile 2. The FAA Regional Office of the safety relating directly to published radius of the Sherman AAF. region in which the affected airport is aeronautical charts. The circumstances * * * * * located. which created the need for some SIAP Issued in Kansas City, MO on September By Subscription—Copies of all SIAPs, amendments may require making them 3, 1999. mailed once every 2 weeks, are for sale effective in less than 30 days. For the Herman J. Lyons, Jr., by the Superintendent of Documents, remaining SIAPs, an effective date at Manager, Air Traffic Division, Central Region. U.S. Government Printing Office, least 30 days after publication is Washington, DC 20402. provided. [FR Doc. 99–23725 Filed 9–10–99; 8:45 am] FOR FURTHER INFORMATION CONTACT: BILLING CODE 4910±13±M Further, the SIAPs contained in this Donald P. Pate, Flight Procedure amendment are based on the criteria Standards Branch (AMCAFS–420), contained in the U.S. Standard for DEPARTMENT OF TRANSPORTATION Flight Technologies and Programs Terminal Instrument Procedures Division, Flight Standards Service, (TERPS). In developing these SIAPs, the Federal Aviation Administration Federal Aviation Administration, Mike TERPS criteria were applied to the Monroney Aeronautical Center, 6500 conditions existing or anticipated at the 14 CFR Part 97 South MacArthur Blvd. Oklahoma City, affected airports. Because of the close [Docket No. 29733; Amdt. No. 1948] OK. 73169 (Mail Address: P.O. Box and immediate relationship between 25082, Oklahoma City, OK. 73125) these SIAPs and safety in air commerce, Standard Instrument Approach telephone: (405) 954–4164. I find that notice and public procedure Procedures; Miscellaneous SUPPLEMENTARY INFORMATION: This before adopting these SIAPs are Amendments amendment to part 97 of the Federal impracticable and contrary to the public AGENCY: Federal Aviation Aviation Regulations (14 CFR part 97) interest and, where applicable, that Administration (FAA), DOT. establishes, amends, suspends, or good cause exists for making some revokes Standard Instrument Approach SIAPs effective in less than 30 days. ACTION: Final rule. Procedures (SIAPs). The complete Conclusion SUMMARY: This amendment establishes, regulatory description of each SIAP is amends, suspends, or revokes Standard contained in official FAA form The FAA has determined that this Instrument Approach Procedures documents which are incorporated by regulation only involves an established (SIAPs) for operations at certain reference in this amendment under 5 body of technical regulations for which airports. These regulatory actions are U.S.C. 552(a), 1 CFR part 51, and § 97.20 frequent and routine amendments are needed because of the adoption of new of the Federal Aviation Regulations necessary to keep them operationally or revised criteria, or because of changes (FAR). The applicable FAA Forms are current. It, therefore—(1) is not a occurring in the National Airspace identified as FAA Forms 8260–3, 8260– ‘‘significant regulatory action’’ under System, such as the commissioning of 4, and 8260–5. Materials incorporated Executive Order 12866; (2) is not a new navigational facilities, addition of by reference are available for ‘‘significant rule’’ under DOT new obstacles, or changes in air traffic examination or purchase as stated Regulatory Policies and Procedures (44 requirements. These changes are above. FR 11034; February 26, 1979); and (3) designed to provide safe and efficient The large number of SIAPs, their does not warrant preparation of a use of the navigable airspace and to complex nature, and the need for a regulatory evaluation as the anticipated promote safe flight operations under special format make their verbatim impact is so minimal. For the same instrument flight rules at the affected publication in the Federal Register reason, the FAA certifies that this airports. expensive and impractical. Further, amendment will not have a significant DATES: An effective date for each SIAP airmen do not use the regulatory text of economic impact on a substantial is specified in the amendatory the SIAPs, but refer to their graphic number of small entities under the provisions. depiction on charts printed by criteria of the Regulatory Flexibility Act. Incorporation by reference-approved publishers of aeronautical materials. List of Subjects in 14 CFR Part 97 by the Director of the Federal Register Thus, the advantages of incorporation on December 31, 1980, and reapproved by reference are realized and Air traffic control, Airports, as of January 1, 1982. publication of the complete description Navigation (air). ADDRESSES: Availability of matters of each SIAP contained in FAA form documents is unnecessary. The Issued in Washington, DC on September 3, incorporated by reference in the 1999. provisions of this amendment state the amendment is as follows: L. Nicholas Lacey, For Examination affected CFR (and FAR) sections, with 1. FAA Rules Docket, FAA the types and effective dates of the Director, Flight Standards Service. Headquarters Building, 800 SIAPs. This amendment also identifies Adoption of the Amendment Independence Avenue, SW., the airport, its location, the procedure Washington, DC 20591; identification and the amendment Accordingly, pursuant to the 2. The FAA Regional Office of the number. authority delegated to me, part 97 of the Federal Aviation Regulations (14 CFR region in which the affected airport is The Rule located; or part 97) is amended by establishing, 3. The Flight Inspection Area Office This amendment to part 97 is effective amending, suspending, or revoking which originated the SIAP. upon publication of each separate SIAP Standard Instrument Approach For Purchase—Individual SIAP copies as contained in the transmittal. Some Procedures, effective at 0901 UTC on may be obtained from: SIAP amendments may have been the dates specified, as follows:
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PART 97ÐSTANDARD INSTRUMENT Joplin, MO, Joplin Regional, NDB RWY 13, DEPARTMENT OF TRANSPORTATION APPROACH PROCEDURES Amdt 24 Joplin, MO, Joplin Regional, ILS RWY 13, Federal Aviation Administration 1. The authority citation for part 97 is Amdt 23 revised to read as follows: Joplin, MO, Joplin Regional, ILS/DME RWY 14 CFR Part 97 18, Amdt 1 Authority: 49 U.S.C. 106(g), 40103, 40113, Joplin, MO, Joplin Regional, GPS RWY 13, [Docket No. 29709; Amdt. No. 1947] 40120, 44701; and 14 CFR 11.49(b)(2). Orig Joplin, MO, Joplin Regional, GPS RWY 18, Standard Instrument Approach 2. Part 97 is amended to read as Procedures; Miscellaneous follows: Orig Joplin, MO, Joplin Regional, GPS RWY 36, Amendments §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33 Orig AGENCY: Federal Aviation and 97.35 [Amended] Hartington, NE, Hartington Muni, GPS RWY 13, Orig Administration (FAA), DOT. By amending: § 97.23 VOR, VOR/ Hartington, NE, Hartington Muni, GPS RWY ACTION: Final rule. DME, VOR or TACAN, and VOR/DME 31, Orig or TACAN; § 97.25 LOC, LOC/DME, Thedford, NE, Thomas County, VOR RWY SUMMARY: This amendment establishes, LDA, LDA/DME, SDF,SDF/DME; § 97.27 11, Orig amends, suspends, or revokes Standard NDB, NDB/DME; § 97.29 ILS, ILS/DME, Thedford, NE, Thomas County, GPS RWY 11, Instrument Approach Procedures ISMLS, MLS, MLS/DME, MLS/RNAV; Orig (SIAPs) for operations at certain § 97.31 RADAR SIAPs; § 97.33 RNAV Thedford, NE, Thomas County, GPS RWY 29, airports. These regulatory actions are SIAPs; and § 97.35 COPTER SIAPs, Orig needed because of changes occurring in identified as follows: Albany, NY, Albany Intl, VOR OR GPS RWY the National Airspace System, such as 28, Amdt 6, CANCELLED .. .Effective October 7, 1999 the commissioning of new navigational Albany, NY, Albany Intl, VOR/DME OR GPS facilities, addition of new obstacles, or Storm Lake, IA, Storm Lake Muni, GPS RWY RWY 1, Amdt 10, CANCELLED changes in air traffic requirements. 35, Amdt 1 Albany, NY, Albany Intl, VOR/DME RWY 28, These changes are designed to provide El Paso, TX, El Paso Intl, GPS RWY 4, Orig Orig El Paso, TX, El Paso Intl, GPS RWY 22, Orig safe and efficient use of the navigable Albany, NY, Albany Intl, ILS RWY 1, Amdt airspace and to promote safe flight El Paso, TX, El Paso Intl, GPS RWY 26L, Orig 9 operations under instrument flight rules .. .Effective November 4, 1999 Albany, NY, Albany Intl, ILS RWY 19, Amdt 21 at the affected airports. Kenai, AK, Kenai Muni, ILS RWY 19R, Orig DATES: An effective date for each SIAP Kenai, AK, Kenai Muni, ILS/DME RWY 19R, Albany, NY, Albany Intl, COPTER ILS RWY Orig, CANCELLED 1, Orig is specified in the amendatory St. George, AK, St. George, GPS–B, Orig Albany, NY, Albany Intl, GPS RWY 1, Orig provisions. Avon Park, FL, Avon Park Muni, GPS RWY Albany, NY, Albany Intl, GPS RWY 10, Orig Incorporation by reference—approved 4, Orig Albany, NY, Albany Intl, GPS RWY 19, Orig by the Director of the Federal Register Avon Park, FL, Avon Park Muni, GPS RWY Albany, NY, Albany Intl, GPS RWY 28, Orig on December 31, 1980, and reapproved 9, Orig Bryan, OH, Williams County, NDB–A, Amdt as of January 1, 1982. Marco Island, FL, Marco Island, GPS RWY 6 ADDRESSES: Availability of matter 35, Orig Bryan, OH, Williams County, GPS RWY 7, incorporated by reference in the Canton, GA, Cherokee County, GPS RWY 4, Orig Amdt 1 amendment is as follows: Bryan, OH, Williams County, GPS RWY 25, For Examination— Belvidere, IL, Belvidere LTD, VOR or Orig GPS–A, Amdt 1, CANCELLED Pottstown, PA, Pottstown-Limerick, VOR/ 1. FAA Rules Docket, FAA Chicago/Aurora, IL, Aurora Muni, VOR or DME–A, Amdt 3 Headquarters Building, 800 GPS RWY 2/36, Amdt 2 Pottstown, PA, Pottstown-Limerick, LOC Independence Avenue, SW., Poplar Grove, IL, Poplar Grove, VOR–A, Orig RWY 28, Amdt 1 Washington, DC 20591; Harlan, IA, Harlan Muni, NDB RWY 33, Pottstown, PA, Pottstown-Limerick, NDB 2. The FAA Regional Office of the Amdt 5 RWY 28, Amdt 1 region in which affected airport is Harlan, IA, Harlan Muni, GPS RWY 15, Orig Harlan, IA, Harlan Muni, GPS RWY 33, Orig Pottstown, PA, Pottstown-Limerick, GPS located; or Minneapolis, MN, Minneapolis-St. Paul Intl RWY 28, Orig 3. The Flight Inspection Area Office (World-Chamberlain), ILS PRM RWY Mayaguez, PR, Eugenio Maria De Hostos, which originated the SIAP. 12L, Amdt 3 VOR OR GPS RWY 9, Amdt 9 For Purchase—Individual SIAP Minneapolis, MN, Minneapolis-St. Paul Intl Arlington, TN, Arlington Muni, LOC RWY copies may be obtained from: (World-Chamberlain), ILS RWY 12L, 15, Amdt 2, CANCELLED 1. FAA Public Inquiry Center (APA– Amdt 5 Arlington, TN, Arlington Muni, NDB OR GPS 200), FAA Headquarters Building, 800 Gulfport, MS, Gulfport-Biloxi Regional, GPS RWY 15, Amdt 8A, CANCELLED Independence Avenue, SW., RWY 14, Orig Arlington, TN, Arlington Muni, NDB OR GPS Washington, DC 20591; or Gulfport, MS, Gulfport-Biloxi Regional, GPS RWY 33, Amdt 8, CANCELLED 2. The FAA Regional Office of the RWY 18, Orig Memphis, TN, Memphis Intl, Radar-1, Amdt Gulfport, MS, Gulfport-Biloxi Regional, GPS 38 region in which the affected airport is RWY 32, Orig Nashville, TN, John C. Tune, GPS RWY 19, located. Gulfport, MS, Gulfport-Biloxi Regional, GPS Orig By Subscription—Copies of all SIAPs, RWY 36, Orig Richmond/Ashland, VA, Hanover County mailed once every 2 weeks, are for sale Boonville, MO, Jesse Viertel Memorial, NDB Muni, GPS RWY 16, Amdt 1 by the Superintendent of Documents, RWY 18, Amdt 10 South Hill, VA, Meckleburg-Brunswick U.S. Government Printing Office, Boonville, MO, Jesse Viertel Memorial, GPS Regional, GPS RWY 19, Orig Washington, DC 20402. RWY 18, Orig Omak, WA, Omak, GPS RWY 35, Orig Boonville, MO, Jesse Viertel Memorial, GPS FOR FURTHER INFORMATION CONTACT: RWY 36, Orig [FR Doc. 99–23803 Filed 9–10–99; 8:45 am] Donald P. Pate, Flight Procedure Joplin, MO, Joplin Regional, LOC BC RWY BILLING CODE 4910±13±M Standards Branch (AMCAFS–420), 31, Amdt 20 Flight Technologies and Programs
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Division, Flight Standards Service, timeliness of change considerations, this FR 11034; February 26, 1979); and (3) Federal Aviation Administration, Mike amendment incorporates only specific does not warrant preparation of a Monroney Aeronautical Center, 6500 changes contained in the content of the regulatory evaluation as the anticipated South MacArthur Blvd. Oklahoma City, following FDC/P NOTAMs for each impact is so minimal. For the same OK 73169 (Mail Address: P.O. Box SIAP. The SIAP information in some reason, the FAA certifies that this 25082 Oklahoma City, OK 73125) previously designated FDC/Temporary amendment will not have a significant telephone: (405) 954–4164. (FDC/T) NOTAMs is of such duration as economic impact on a substantial SUPPLEMENTARY INFORMATION: This to be permanent. With conversion to number of small entities under the amendment to part 97 of the Federal FDC/P NOTAMs, the respective FDC/T criteria of the Regulatory Flexibility Act. Aviation Regulations (14 CFR part 97) NOTAMs have been canceled. List of Subjects in 14 CFR Part 97 establishes, amends, suspends, or The FDC/P NOTAMs for the SIAPs revokes Standard Instrument Approach contained in this amendment are based Air traffic control, Airports, Procedures (SIAPs). The complete on the criteria contained in the U.S. Navigation (air). regulatory description on each SIAP is Standard for Terminal Instrument Issued in Washington, DC on August 20, contained in the appropriate FAA Form Procedures (TERPS). In developing 1999. 8260 and the National Flight Data these chart changes to SIAPs by FDC/P L. Nicholas Lacey, NOTAMs, the TERPS criteria were Center (FDC)/Permanent (P) Notices to Director, Flight Standards Service. Airmen (NOTAM) which are applied to only these specific conditions incorporated by reference in the existing at the affected airports. All Adoption of the Amendment SIAP amendments in this rule have amendment under 5 U.S.C. 552(a), 1 Accordingly, pursuant to the been previously issued by the FAA in a CFR part 51, and § 97.20 of the Federal authority delegated to me, part 97 of the National Flight Data Center (FDC) Aviation’s Regulations (FAR). Materials Federal Aviation Regulations (14 CFR Notice to Airmen (NOTAM) as an incorporated by reference are available part 97) is amended by establishing, for examination or purchase as stated emergency action of immediate flight amending, suspending, or revoking above. safety relating directly to published Standard Instrument Approach The large number of SIAPs, their aeronautical charts. The circumstances Procedures, effective at 0901 UTC on complex nature, and the need for a which created the need for all these the dates specified, as follows: special format make their verbatim SIAP amendments requires making publication in the Federal Register them effective in less than 30 days. PART 97ÐSTANDARD INSTRUMENT expensive and impractical. Further, Further, the SIAPs contained in this APPROACH PROCEDURES airmen do not use the regulatory text of amendment are based on the criteria the SIAPs, but refer to their graphic contained in the TERPS. Because of the 1. The authority citation for part 97 is depiction of charts printed by close and immediate relationship revised to read as follows: publishers of aeronautical materials. between these SIAPs and safety in air Authority: 49 U.S.C. 40103.40113, 40120, Thus, the advantages of incorporation commerce, I find that notice and public 44701; 49 U.S.C. 106(g); and 14 CFR by reference are realized and procedure before adopting these SIAPs 11.49(b)(2). publication of the complete description are impracticable and contrary to the of each SIAP contained in FAA form public interest and, where applicable, 2. Part 97 is amended to read as documents is unnecessary. The that good cause exists for making these follows: provisions of this amendment state the SIAPs effective in less than 30 days. §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, affected CFR (and FAR) sections, with Conclusion and 97.35 [Amended] the types and effective dates of the The FAA has determined that this By amending: § 97.23 VOR, VOR/ SIAPs. This amendment also identifies DME, VOR or TACAN, and VOR/DME the airport, its location, the procedure regulation only involves an established body of technical regulations for which or TACAN; § 97.25 LOC, LOC/DME, identification and the amendment LDA, LDA/DME, SDF, SDF/DME; number. frequent and routine amendments are necessary to keep them operationally § 97.27 NDB, NDB/DME; § 97.29 ILS, The Rule current. It, therefore—(1) is not a ILS/DME, ISMLS, MLS, MLS/DME, This amendment to part 97 of the ‘‘significant regulatory action’’ under MLS/RNAV; § 97.31 RADAR SIAPs; Federal Aviation Regulations (14 CFR Executive Order 12866; (2) is not a § 97.33 RNAV SIAPs; and § 97.35 part 97) establishes, amends, suspends, ‘‘significant rule’’ under DOT COPTER SIAPs, identified as follows: or revokes SIAPs. For safety and Regulatory Policies and Procedures (44 .. . EFFECTIVE UPON PUBLICATION
FDC date State City Airport FDC No. SIAP
06/07/99 ...... CO. STEAMBOAT SPRINGS BOB ADAMS FIELD ...... 9/3928 VOR/DME±C, AMDT 1A ... 07/06/99 ...... DE. MIDDLETON ...... SUMMIT ...... 9/4695 VOR OR GPS±B, AMDT 1A ... 07/06/99 ...... DE. WILMINGTON ...... NEW CASTLE COUNTY ...... 9/4697 VOR OR GPS RWY 1 AMDT 3A ... 07/06/99 ...... DE. WILMINGTON ...... NEW CASTLE COUNTY ...... 9/4698 VOR RWY 27 AMDT 3A ... 07/06/99 ...... DE. WILMINGTON ...... NEW CASTLE COUNTY ...... 9/4699 GPS RWY 9 ORIG ... 07/07/99 ...... VA. FREDERICKSBURG ...... SHANNON ...... 9/4728 VOR RWY 24 AMDT 7 ... 07/07/99 ...... VA. LYNCHBURG ...... LYNCHBURG REGIONAL/PRESTON 9/4727 VOR OR GPS RWY 3 AMDT GLENN FIELD. 11A ... 07/07/99 ...... VA. MELFA ...... ACCOMACK COUNTY ...... 9/4729 VOR/DME OR GPS RWY 3 ORIG ... 07/07/99 ...... VA. MELFA ...... ACCOMACK COUNTY ...... 9/4730 NDB RWY 3 AMDT 8 ... 07/07/99 ...... VA. WAKEFIELD ...... WAKEFIELD MUNI ...... 9/4731 NDB OR GPS RWY 20 AMDT 4A ... 07/13/99 ...... VA. HOT SPRINGS ...... INGALLS FIELD ...... 9/4918 ILS RWY 24 AMDT 2B ...
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FDC date State City Airport FDC No. SIAP
08/03/99 ...... WA. ELLENSBURG ...... BOWERS FIELD ...... 9/5610 VOR OR GPS±A, AMDT 2A ... 08/04/99 ...... KY. LONDON ...... LONDON-CORBIN ARPT-MAGEE 9/5644 VOR RWY 5, AMDT 12B ... FLD. 08/04/99 ...... KY. LONDON ...... LONDON-CORBIN ARPT-MAGEE 9/5645 GPS RWY 23, ORIG ... FLD. 08/04/99 ...... KY. LONDON ...... LONDON-CORBIN ARPT-MAGEE 9/5646 GPS RWY 5, ORIG ... FLD. 08/05/99 ...... GA. DUBLIN ...... W.H. ``BUD'' BARROW ...... 9/5681 NDB RWY 2, AMDT 2 ... 08/05/99 ...... GA. DUBLIN ...... W.H. ``BUD'' BARROW ...... 9/5682 ILS RWY 2, ORIG ... 08/05/99 ...... KY. LONDON ...... LONDON-CORBIN ARPT-MAGEE 9/5674 VOR/DME RNAV RWY 5, AMDT FLD. 3A ... 08/05/99 ...... NM. ALBUQUERQUE ...... DOUBLE EAGLE II ...... 9/5680 ILS RWY 22, AMDT 2 ... 08/05/99 ...... SC. LAURENS ...... LAURENS COUNTY ...... 9/5661 NDB RWY 8, AMDT 1A ... 08/09/99 ...... IL. PONTIAC ...... PONTIAC MUNICIPAL ...... 9/5813 VOR RWY 24, AMDT 1 ... 08/09/99 ...... VA. RICHMOND ...... RICHMOND INTL ...... 9/5815 VOR OR GPS RWY 25 AMDT 15 ... 08/09/99 ...... WV. BLUEFIELD ...... MERCER COUNTY ...... 9/5810 ILS RWY 23 AMDT 14C ... 08/11/99 ...... OH. RAVENNA ...... PORTAGE COUNTY ...... 9/5864 VOR/DME RNAV OR GPS RWY 27, AMDT 2 ... 08/12/99 ...... KS. PITTSBURG ...... ATKINSON MUNI ...... 9/5902 NDB OR GPS RWY 16, AMDT 3A ... 08/13/99 ...... MO. ST. JOSEPH ...... ROSECRANS MEMORIAL ...... 9/5932 NDB OR GPS RWY 35, AMDT 28B ... 08/13/99 ...... MO. ST JOSEPH ...... ROSECRANS MEMORIAL ...... 9/5933 NDB RWY 17, AMDT 8 ... 08/13/99 ...... MO. ST JOSEPH ...... ROSECRANS MEMORIAL ...... 9/5934 VOR/DME RNAV OR GPS RWY 17, AMDT 4 ... 08/13/99 ...... OK. OKMULGEE ...... OKMULGEE MUNI ...... 9/5930 NDB RWY 17, AMDT 3 ... 08/13/99 ...... OK. OKMULGEE ...... OKMULGEE MUNI ...... 9/5931 ILS RWY 17, ORIG ... 08/13/99 ...... VA. LYNCHBURG ...... LYNCHBURG REGIONAL/PRESTON 9/5937 VOR OR GPS RWY 3 AMDT GLENN FIELD. 11B ... 08/16/99 ...... FL. FORT MYERS ...... PAGE FIELD ...... 9/5994 GPS RWY 23, ORIG ... 08/17/99 ...... WY. EVANSTON ...... EVANSTON-UINTA COUNTY BURNS 9/6003 VOR/DME OR GPS±A ORIG ... FIELD. 08/17/99 ...... WY. EVANSTON ...... EVANSTON-UINTA COUNTY BURNS 9/6004 VOR/DME OR GPS RWY 23, FIELD. AMDT 2 ...
[FR Doc. 99–23802 Filed 9–10–99; 8:45 am] Schedule 3 chemicals. Finally, this rule the export licensing policy for Hong BILLING CODE 4910±13±M also adds the addresses of the Kong. authorized agencies in Taiwan This rule also amends § 742.18(b) of responsible for issuing End-Use the EAR to clarify the licensing policy DEPARTMENT OF COMMERCE Certificates, and removes the previously for exports and reexports of Schedule 2 listed office. and Schedule 3 chemicals to non-States Bureau of Export Administration DATES: This rule is effective September Parties. Specifically, § 742.18(b) is 13, 1999. amended by removing the presumption 15 CFR Parts 742 and 745 FOR FURTHER INFORMATION CONTACT: of approval language with regard to [Docket No. 990416098±9237±02] Nancy Crowe or Sharron Cook, exports and reexports of Schedule 2 and Regulatory Policy Division, Bureau of Schedule 3 chemicals to CWC States RIN 0694±AB67 Export Administration, at (202) 482– Parties as well as non-States Parties. 2440. Chemical Weapons Conventions; This language is being removed because SUPPLEMENTARY INFORMATION: Revisions to the Export Administration On May no license is required for exports and Regulations; States Parties; Licensing 18, 1999, the Bureau of Export reexports of Schedule 2 and Schedule 3 Policy Clarification Administration published an interim chemicals to States Parties for the rule (64 FR 27138) implementing the Chemical Weapons (‘‘CW’’) reason for AGENCY: Bureau of Export export control and certain reporting control. Further, no license is required Administration, Commerce provisions of the Convention on the for exports of Schedule 2 chemicals to ACTION: Interim rule. Prohibition of the Development, non-States Parties prior to April 29, Production, Stockpiling, and Use of 2000, for the CW reason for control SUMMARY: On May 18, 1999, the Bureau Chemical Weapons and on Their unless the exporter is not able to obtain of Export Administration published an Destruction (Convention or CWC). This an End-Use Certificate prior to the interim rule (64 FR 27138) rule amends Supplement No. 2 to Part export. Finally, no license is required implementing the export control and 745 of the Export Administration for exports of Schedule 3 chemicals to reporting provisions of the Chemical Regulations (EAR) to add Estonia, Holy non-States Parties for the CW reason for Weapons Convention. This rule adds See, Micronesia, Nigeria and Sudan to control unless the exporter is not able to Estonia, Holy See, Micronesia, Nigeria the list of States Parties to the obtain an End-Use Certificate prior to and Sudan to the list of States Parties to Convention. This rule also clarifies that the export. Applications for exports of the Convention, and makes for CWC States Parties status only, Hong Schedule 2 and Schedule 3 chemicals to clarifications in the licensing policy for Kong is treated like the People’s non-States Parties when no End-Use exports and reexports of Schedule 2 and Republic of China. This does not change Certificate is obtained will generally be
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.194 pfrm08 PsN: 13SER1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49381 denied. Note that the revisions to analytical requirements of the § 745.2 EndÐUse Certificate reporting § 742.18(b) do not change current Regulatory Flexibility Act, 5 U.S.C. 601 requirements under the Chemical Weapons licensing policy. et seq., are inapplicable. Convention. Finally, this rule also amends * * * * * Supplement No. 3 to Part 745 to add the List of Subjects (a)(1) * * * Supplement No. 3 to this addresses of the authorized agencies in 15 CFR Parts 742 part includes foreign authorized Taiwan responsible for issuing End-Use agencies responsible for issuing End- Certificates and remove the Taiwan Exports, Foreign trade. Use Certificates pursuant to this section. office previously listed. Three offices in 15 CFR Part 745 Additional foreign authorized agencies Taiwan have the responsibility for responsible for issuing End-Use issuing End-Use Certificates. Two of the Administrative practice and Certificates will be included in three offices (Export Processing Zone procedure, Exports, Foreign trade, Supplement No. 3 to this part when Administration and the Science-Based Reporting and recordkeeping known. * * * requirements. Industrial Park Administration) are in * * * * * special economic zones and are Accordingly, parts 742 and 745 of the 5. Supplement No. 2 to part 745 is responsible for the activity in their Export Administration Regulations (15 revised to read as follows: respective zones only. CFR Parts 730–799) are amended as Supplement No. 2 to Part 745—States Although the Export Administration follows: Parties to the Convention on the Act (EAA) expired on August 20, 1994, 1. The authority citation for 15 CFR Prohibition of the Development, the President invoked the International part 742 is revised to read as follows: Production, Stockpiling, and Use of Emergency Economic Powers Act and Authority: 50 U.S.C. app. 2401 et seq.; 50 Chemical Weapons and on Their continued in effect the EAR, and, to the U.S.C. 1701 et seq.; 18 U.S.C. 2510 et seq.; Destruction extent permitted by law, the provisions 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; E.O. of the EAA in Executive Order 12924 of List of States Parties as of September 13, 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 1999 August 19, 1994, extended by 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Presidential notice of August 13, 1998 Comp., p. 608; E.O. 12924, 59 FR 43437, 3 Albania (63 FR 55121, August 17, 1998). CFR, 1994 Comp., p. 917; E.O. 12938, 59 FR Algeria 59099, 3 CFR, 1994 Comp., p. 950; E.O. Argentina Rulemaking Requirements 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. Armenia Australia 1. This interim rule has been 228; Notice of November 12, 1998, 63 FR 63589, 3 CFR, 1998 Comp., p. 305; Notice of Austria determined to be not significant for Bahrain purposes of E.O. 12866. August 10, 1999, 64 FR 44101 (August 13, 1999). Bangladesh 2. Notwithstanding any other Belarus provision of law, no person is required 2. The authority citation for 15 CFR Belgium to, nor shall any person be subject to a part 745 is revised to read as follows: Benin Bolivia penalty for failure to comply with a Authority: 50 U.S.C. 1701 et seq.; E.O. collection of information, subject to the Bosnia-Herzegovina 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. Botswana Paperwork Reduction Act (PRA), unless 950; Notice of November 12, 1998, 63 FR Brazil that collection of information displays a 63589, 3 CFR, 1998 Comp., p. 305; Notice of Brunei Darussalam currently valid OMB Control Number. August 10, 1999, 64 FR 44101 (August 13, Bulgaria This rule involves collections of 1999). Burkina Faso information subject to the Paperwork Burundi PART 742ÐAMENDED Reduction Act of 1995 (44 U.S.C. 3501 Cameroon et seq.). These collections have been Canada 3. Section 742.18 is amended by Chile approved by the Office of Management removing paragraph (b)(2)(i), and Budget under control numbers China* redesignating paragraphs (b)(2)(ii) and Cook Islands 0694–0088 and 0694–0117. (iii) as (b)(2)(i) and (ii), and revising Costa Rica 3. This rule does not contain policies newly redesignated paragraph Cote d’Ivoire (Ivory Coast) with Federalism implications sufficient (b)(2)(i)(A) to read as follows: Croatia to warrant preparation of a Federalism Cuba assessment under Executive Order § 742.18 Chemical Weapons Convention Cyprus 12612. (CWC or Convention). Czech Republic 4. The provisions of the * * * * * Denmark Ecuador Administrative Procedure Act (5 U.S.C. (b) * * * 553) requiring notice of proposed El Salvador (1) * * * Equatorial Guinea rulemaking, the opportunity for public (2) Schedule 2 and Schedule 3 Estonia participation, and a delay in effective chemicals. (i)(A) ECCN 1C350. Ethiopia date, are inapplicable because this Applications to export Schedule 2 Fiji regulation involves a military and chemicals prior to April 29, 2000, and Finland foreign affairs function of the United Schedule 3 chemicals controlled under France States (Sec. 5 U.S.C. 553(a)(1)). Further, Gambia ECCN 1C350 to CWC non-States parties Georgia no other law requires that a notice of will generally be denied. proposed rulemaking and an Germany * * * * * Ghana opportunity for public comment be Greece given for this rule. Because a notice of PART 745ÐAMENDED Guinea proposed Rulemaking and an Guyana opportunity for public comment are not 4. Section 745.2 is amended by required to be given for this rule by 5 revising the third and fourth sentences * For CWC purposes only, China includes Hong U.S.C. 553, or by any other law, the in paragraph (a)(1), to read as follows: Kong.
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Holy See Uzbekistan Trade and Foreign Policy Controls, Hungary Venezuela Bureau of Export Administration, Iceland Vietnam Telephone: (202) 482–4196. India Zimbabwe Indonesia SUPPLEMENTARY INFORMATION: 6. Supplement No. 3 to part 745 is Iran Background Ireland amended by revising the title to the Italy supplement, and the entry for Taiwan, On April 5, 1999, the United Nations Japan to read as follows: Security Council (UNSC) suspended the Jordan sanctions against Libya set forth in Kenya Supplement No. 3 to Part 745—Foreign UNSC resolutions 748 and 883. In light Korea (Republic of) Authorized Agencies Responsible for of this suspension, the United States has Kuwait Issuing End-Use Certificates Pursuant taken action that will allow, under Laos (P.D.R.) to § 745.2 License Exception AVS, the temporary Latvia Lesotho * * * * * reexport to Libya of foreign registered 1 Lithuania Taiwan aircraft subject to the EAR. Foreign Luxembourg Board of Foreign Trade, Ministry of registered aircraft meeting all the Macedonia Economic Affairs, 1 Hukou St., Taipei, temporary sojourn requirements of Malawi Tel: (02) 2351–0271, Fax: (02) 2351–3603 License Exception AVS may fly from Maldives Export Processing Zone Administration, foreign countries to Libya without Mali Ministry of Economic Affairs, 600 obtaining prior written authorization Chiachang Rd., Nantze, Kaohsiung, Tel: Malta from BXA. This action is limited in Mauritius (07) 361–1212, Fax: (07) 361–4348 Science-Based Industrial Park scope and in no way impacts other U.S. Mauritania sanctions against Libya. Note that Mexico Administration, National Science Micronesia Council, Executive Yuan, 2 Hsin-an Rd., License Exception AVS remains Moldova (Republic of) Hsinchu, Tel: (03) 577–3311, Fax: (03) unavailable for U.S. registered aircraft. Monaco 577–6222 Although the Export Administration Mongolia Dated: September 1, 1999. Act (EAA) expired on August 20, 1994, Morocco R. Roger Majak, the President invoked the International Namibia Assistant Secretary for Export Emergency Economic Powers Act and Nepal Administration. continued in effect the EAR, and to the Netherlands extent permitted by law, the provisions New Zealand [FR Doc. 99–23309 Filed 9–10–99; 8:45 am] BILLING CODE 3510±33±P of the EAA, as amended, in Executive Niger Order 12924 of August 19, 1994, as Nigeria Norway extended by the President’s notices of Oman DEPARTMENT OF COMMERCE August 15, 1995 (60 FR 42767), August Pakistan 14, 1996 (61 FR 42527) August 13, 1997 Panama Bureau of Export Administration (62 FR 43629), August 13, 1998 (63 FR Papua New Guinea 44121), and August 10, 1999 (64 FR Paraguay 15 CFR Part 746 44101). Peru [Docket No. 990827238±9238±01] Philippines Rule Making Requirements Poland RIN 0694±AB94 1. This final rule has been determined Portugal to be non-significant for purposes of Qatar Reexports to Libya of Foreign E.O. 12866. Romania Registered Aircraft Subject to the 2. Notwithstanding any other Russian Federation Export Administration Regulations Saint Lucia provision of law, no person is required Saudi Arabia AGENCY: Bureau of Export to respond to nor be subject to a penalty Senegal Administration, Commerce. for failure to comply with a collection Seychelles of information subject to the ACTION: Singapore Final rule. requirements of the Paperwork Slovak Republic SUMMARY: The Bureau of Export Reduction Act unless that collection of Slovenia information displays a current valid South Africa Administration (BXA) is amending the Export Administration Regulations OMB Control Number. This regulation Spain does not involve any paperwork Sri Lanka (EAR) by reinstating provisions of Sudan License Exception AVS for temporary collections. Suriname reexports to Libya of foreign registered 3. This rule does not contain policies Swaziland aircraft subject to the EAR. This limited with Federalism implications sufficient Sweden action is taken in response to suspended to warrant preparation of a Federalism Switzerland United Nations sanctions. assessment under Executive Order Tajikistan 12612. Tanzania DATES: This rule is effective April 5, 4. The provisions of the Togo 1999. Administrative Procedure Act requiring Trinidad and Tobago FOR FURTHER INFORMATION CONTACT: notice of proposed rulemaking, the Tunisia James A. Lewis, Office of Strategic opportunity for public participation, Turkey Turkmenistan and a delay in effective date, are 1 Two of the three offices (Export Processing Zone inapplicable because this regulation United Kingdom Administration and the Science-Based Industrial Ukraine Park Administration) are in special economic zones involves a military or foreign affairs United States and are responsible for the activity in their function of the United States (see 5 Uruguay respective zones. U.S.C. 553(a)(1)). Further, no other law
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.228 pfrm08 PsN: 13SER1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49383 requires that a notice of proposed DEPARTMENT OF HEALTH AND PART 5ÐDELEGATIONS OF rulemaking and an opportunity for HUMAN SERVICES AUTHORITY AND ORGANIZATION public comment be given for this rule. Because a notice of proposed rule Food and Drug Administration 1. The authority citation for 21 CFR making and opportunities for public part 5 continues to read as follows: comment are not required to be given 21 CFR Part 5 Authority: 5 U.S.C. 504, 552, App. 2; 7 for this rule by 5 U.S.C. 553, or by any U.S.C. 138a, 2271; 15 U.S.C. 638, 1261–1282, Delegations of Authority and 3701–3711a; 15 U.S.C. 1451–1461; 21 U.S.C. other law, the analytical requirements of Organization; Technical Amendment the Regulatory Flexibility Act, 5 U.S.C. 41–50, 61–63, 141–149, 321–394, 467f, 679(b), 801–886, 1031–1309; 35 U.S.C. 156; 601 et seq., are inapplicable. Therefore, AGENCY: Food and Drug Administration, 42 U.S.C. 241, 242, 242a, 242l, 242n 243, 262, this regulation is issued in final form. HHS. 263, 264, 265, 300u–300u–5, 300aa–1; 1395y, Although there is no formal comment ACTION: Final rule; technical 3246b, 4332, 4831(a), 10007–10008; E.O. period, public comments on this amendment. 11921, 41 FR 24294, 3 CFR, 1977 Comp., p. regulation are welcome on a continuing 124–131; E.O. 12591, 52 FR 13414, 3 CFR, basis. Comments should be submitted to SUMMARY: The Food and Drug 1988 Comp., p. 220–223. Frank J. Ruggiero, Office of Exporter Administration (FDA) is amending the § 5.22 [Amended] Services, Bureau of Export regulations for delegations of authority Administration, Department of to correct position titles for delegates in 2. Section 5.22 Certification of true Commerce, P.O. Box 273, Washington, the Center for Drug Evaluation and copies and use of Departmental seal is D.C. 20044. Research (CDER). This action is amended by removing paragraph (a) (13) necessary to ensure the continued (viii). List of Subjects in 15 CFR Parts 746 accuracy of the regulations. 3. Section 5.31 is amended by revising paragraph (f) (3) to read as follows: Embargoes, Exports, Foreign trade, EFFECTIVE DATE: September 13, 1999. FOR FURTHER INFORMATION CONTACT Reporting and recordkeeping : § 5.31 Petitions under part 10. requirements. Leanne Cusumano, Center for Drug Evaluation and Research (HFD– (f) * * * (3) The Director and Deputy Director, Accordingly, Part 746 of the Export 007), Food and Drug Office of Generic Drugs, Office of Administration Regulations (15 CFR Administration, 5600 Fishers Lane, Pharmaceutical Science, CDER, except Parts 730–774) is amended to read as Rockville, MD 20857, 301–594– for those drug products listed in follows: 2041, or § 314.440(b) of this chapter, are 1. The authority citation for 15 CFR Donna G. Page, Division of authorized to issue responses to citizen Part 746 is revised to read as follows: Management Programs (HFA–340), petitions submitted under § 10.30 of this Food and Drug Administration, Authority: 50 U.S.C. app. 2401 et seq.; 50 chapter seeking a determination of the 5600 Fishers Lane, Rockville, MD U.S.C. 1701 et seq.; 22 U.S.C. 287c; 22 U.S.C. suitability of an abbreviated new drug 20857, 301–827–4816. 6004; E.O. 12854, 58 FR 36587, 3 CFR 1993 application for a drug product. SUPPLEMENTARY INFORMATION: FDA is Comp., p. 614; E.O. 12918, 59 FR 28205, 3 * * * * * correcting its regulations in subpart B of CFR, 1994 Comp., p. 899; E.O. 12924, 59 FR 4. Section 5.93 is amended by revising part 5 (21 CFR part 5) in two sections 43437, 3 CFR, 1994 Comp., p.917; E.O. paragraph (b) to read as follows: 13088, 63 FR 32109, 3 CFR, 1998 Comp., p. that reflect incorrect position titles for delegates within CDER. In the Federal 191; E.O. 13121 of April 30, 1999, 64 FR § 5.93 Submission of and effective 24021 (May 5, 1999); Notice of August 10, Register of January 17, 1997 (62 FR approval dates for abbreviated new drug 1999, 64 FR 44101 (August 13, 1999). 2554), FDA amended the regulations for applications and certain new drug delegations of authority to update titles applications. PART 746Ð[AMENDED] of CDER delegates and organizational * * * * * components to reflect organizational (b) The Director and Deputy Director, 2. Section 746.4 is amended by restructuring. In two instances, the Office of Generic Drugs, Office of revising paragraph (b)(2)(ii)(G) to read as position titles for the Director and Pharmaceutical Science, CDER. follows: Deputy Director, Office of Generic Drugs * * * * * (OGD), Office of Pharmaceutical Science § 746.4 Libya (OPS), CDER were inadvertently Dated: September 7, 1999. * * * * * changed to reflect the Director and William K. Hubbard, (b) * * * Deputy Director, Division of Senior Associate Commissioner for Policy, Planning and Legislation. (2) * * * Bioequivalence, OGD, OPS, CDER. Previously, the Director and Deputy [FR Doc. 99–23683 Filed 9–10–99; 8:45 am] (ii) * * * Director, OGD, OPS, CDER held those BILLING CODE 4160±01±F (G) Aircraft and vessels (AVS) for authorities. The Director and Deputy vessels only (see § 740.15 (c)(1) of the Division Director of Bioequivalence EAR), and temporary reexports of titles should be removed. DEPARTMENT OF HEALTH AND HUMAN SERVICES foreign registered aircraft (see § 740.15 List of Subjects in 21 CFR Part 5 (a)(4) of the EAR). Authority delegations (Government Food and Drug Administration * * * * * agencies), Imports, Organization and Dated: September 7, 1999. functions (Government agencies). 21 CFR Part 558 Iain S. Baird, Therefore, under the Federal Food, Deputy Assistant Secretary for Export New Animal Drugs for Use in Animal Drug, and Cosmetic Act and under Feeds; Nicarbazin and Bambermycins Administration. authority delegated to the Commissioner [FR Doc. 99–23785 Filed 9–10–99; 8:45 am] of Food and Drugs, 21 CFR part 5 is AGENCY: Food and Drug Administration, BILLING CODE 3510±33±P amended as follows: HHS.
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ACTION: Final rule. (c) by adding an entry, to reflect the it is a rule of ‘‘particular applicability.’’ approval. Also, the introductory text of Therefore, it is not subject to the SUMMARY: The Food and Drug § 558.95(d)(5) is revised to better reflect congressional review requirements in 5 Administration (FDA) is amending the the combination approvals. U.S.C. 801–808. animal drug regulations to reflect In accordance with the freedom of approval of a new animal drug information provisions of 21 CFR parts List of Subjects in 21 CFR Part 558 application (NADA) filed by Hoechst 20 and 514.11(e)(2)(ii), a summary of Animal drugs, Animal feeds. Roussel Vet. The NADA provides for safety and effectiveness data and Therefore, under the Federal Food, combining approved single ingredient information submitted to support Drug, and Cosmetic Act and under nicarbazin and bambermycins Type A approval of this application may be seen authority delegated to the Commissioner medicated articles to make Type C in the Dockets Management Branch of Food and Drugs and redelegated to medicated broiler chicken feeds to be (HFA–305), Food and Drug the Center for Veterinary Medicine, 21 used as an aid in preventing outbreaks Administration, 5630 Fishers Lane, rm. CFR part 558 is amended as follows: of cecal and intestinal forms of 1061, Rockville, MD 20852, between 9 coccidiosis, and for increased rate of a.m. and 4 p.m., Monday through weight gain and improved feed PART 558ÐNEW ANIMAL DRUGS FOR Friday. USE IN ANIMAL FEEDS efficiency. This approval is for use of single EFFECTIVE DATE: September 13, 1999 ingredient Type A medicated articles to 1. The authority citation for 21 CFR FOR FURTHER INFORMATION CONTACT: make combination drug Type C part 558 continues to read as follows: Charles J. Andres, Center for Veterinary medicated feeds. One ingredient, Authority: 21 U.S.C. 360b, 371. Medicine (HFV–128), Food and Drug nicarbazin, is a Category II drug as Administration, 7500 Standish Pl., defined in 21 CFR 558.3(b)(1)(ii). As 2. Section 558.95 is amended by Rockville, MD 20855, 301–827–1600. provided in 21 CFR 558.4(b), an revising the introductory text of SUPPLEMENTARY INFORMATION: Hoechst approved form FDA 1900 is required to paragraph (d)(5) and by adding Roussel Vet, 30 Independence Blvd., make Type C medicated feed from a paragraph (d)(5)(iv) to read as follows: P.O. Box 4915, Warren, NJ 07059, filed Category II drug. Under section 512(m) NADA 140–339 that provides for of the act (21 U.S.C. 360b(m)), as § 558.95 Bambermycins. combining approved single ingredient amended by the Animal Drug * * * * * Nicarb (nicarbazin) and Flavomycin Availability Act of 1996 (Public Law (d) * * * (bambermycins) Type A medicated 104–250), medicated feed applications (5) Bambermycins may be used in articles to make Type C medicated have been replaced by a requirement for chickens as in paragraph (d)(1) of this broiler chicken feeds containing 113.5 feed mill licenses. Therefore, use of section in combination with: grams per ton (g/t) nicarbazin and 1 to Type A medicated articles to make Type * * * * * 2 g/t bambermycins. The Type C C medicated feeds as provided in NADA medicated broiler chicken feeds are 140–339 is limited to manufacture in a (iv) Nicarbazin as in § 558.366. used as an aid in preventing outbreaks licensed feed mill. 3. Section 558.366 is amended in the of cecal (Eimeria tenella) and intestinal The agency has determined under 21 table in paragraph (c) under the entry (E. acervulina, E. maxima, E. necatrix, CFR 25.33(a)(2) that this action is of a for ‘‘113.5 (0.0125 pct)’’ by and E. brunetti) coccidiosis, and for type that does not individually or alphabetically adding an item for increased rate of weight gain and cumulatively have a significant effect on ‘‘Bambermycins 1 to 2’’ and revising the improved feed efficiency in broiler the human environment. Therefore, item for ‘‘Lincomycin 2’’ to read as chickens. The NADA is approved as of neither an environmental assessment follows: August 6, 1999, and the regulations are nor an environmental impact statement § 558.366 Nicarbazin. amended in § 558.95 (21 CFR 558.95) by is required. adding paragraph (d)(5)(iv), and in 21 This rule does not meet the definition * * * * * CFR 558.366 in the table in paragraph of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because (c) * * *
Nicarbazin in grams per Combination in grams per ton ton Indications for use Limitations Sponsor
*******
113.5 (0.0125 pct) ********* *******
Bambermycins 1 to 2 Broiler chickens; aid in Feed continuously as sole 012799 preventing outbreaks of ration from time chicks cecal (Eimeria tenella) are placed on litter until and intestinal (E. past the time when coc- acervulina, E. maxima, cidiosis is ordinarily a E. necatrix, and E. hazard; do not use as a brunetti) coccidiosis, for treatment for coccidiosis; increased rate of weight do not use in flushing gain and improved feed mashes; do not feed to efficiency. laying hens; withdraw 4 days before slaughter. Nicarbazin as provided by 063271.
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Nicarbazin in grams per Combination in grams per ton ton Indications for use Limitations Sponsor
Lincomycin 2 (0.00044 pct) Broiler chickens; aid in Feed continuously as sole 060728 063271 preventing outbreaks of ration from time chicks secal (Eimeria tenella) are placed on litter until and intestinal (E. past the time when coc- acervulina, E. maxima, cidiosis is ordinarily a E. necatrix, and E. hazard; do not use as a brunetti) coccidiosis; for treatment for coccidiosis; increased rate of weight do not use in flushing gain. mashes; do not feed to laying hens; withdraw 4 days before slaughter. *******
Dated: August 30, 1999. Background the Director for the addition of names to Stephen F. Sundlof, the list of prime grape names. Law and Regulations Director, Center for Veterinary Medicine. Johannisberg Riesling [FR Doc. 99–23665 Filed 9–10–99; 8:45 am] Section 105(e) of the Federal Alcohol In T.D. ATF–370, ATF announced BILLING CODE 4160±01±F Administration Act (FAA Act), 27 U.S.C. 205(e), vests broad authority in that the name ‘‘Johannisberg Riesling’’ the Director, as a delegate of the should no longer be permitted as a grape Secretary of the Treasury, to prescribe variety designation on American wines. DEPARTMENT OF THE TREASURY regulations intended to prevent The true name for this grape variety is deception of the consumer, and to simply ‘‘Riesling.’’ However, in the Bureau of Alcohol, Tobacco and provide the consumer with adequate United States, wineries had long used Firearms information as to the identity and the terms ‘‘Johannisberg Riesling’’ and ‘‘White Riesling’’ to distinguish the true 27 CFR Part 4 quality of the product. Regulations which implement the provisions of Riesling grape from other grapes that section 105(e) as they relate to wine are were incorrectly designated as [T.D. ATF±417; Ref. Notice No. 871] set forth in title 27, Code of Federal ‘‘Riesling.’’ Regulations, part 4. The final rule listed ‘‘Riesling’’ as the RIN: 1512±AB80 prime name for this grape. The term The regulations at § 4.23(b) provide ‘‘White Riesling’’ was listed as a that a grape variety name may be used Extension for Johannisberg Riesling; synonym for ‘‘Riesling.’’ This term is as the type designation of a grape wine Additional Grape Varieties (98R±406P) used internationally as a designation for if not less than 75 percent of the wine this wine, and is also the botanical AGENCY: Bureau of Alcohol, Tobacco is derived from grapes of that variety. name for this grape. and Firearms (ATF), Department of the The wine must be labeled with an Treasury. The final rule placed the name appellation of origin. Under § 4.23(d), a ‘‘Johannisberg Riesling’’ as an ACTION: Treasury Decision, final rule. bottler may use two or more grape alternative name that could be used variety names as the type designation of SUMMARY: This final rule amends the only to label American wines bottled a grape wine if all the wine is made prior to January 1, 1999. ATF noted that wine labeling regulations to allow use of from grapes of the labeled varieties, and the term ‘‘Johannisberg Riesling’’ on ‘‘Johannisberg Riesling’’ is not the the percentage of the wine derived from correct name for this grape variety. American wine labels for an additional each grape variety is shown on the label. seven years. The effect of this Furthermore, ‘‘Johannisberg’’ is a amendment allows American wineries T.D. ATF–370 German geographic term, and the name additional time to educate consumers of a specific winegrowing region within In 1996, ATF issued a final rule Germany. Since the final rule regarding the name change and allow containing a list of approved prime for transitional time regarding the authorized use of the name Riesling, grape variety names which may be used standing by itself, as the prime name for labeling, packaging and merchandising as the designation for American wines. of Johannisberg Reisling. Additionally, wine made from this grape, ATF The purpose of creating a list of prime determined that there was no longer the ATF is adding two new names, grape variety names was to help Traminette and Aglianico, to the list of necessity to distinguish wine made from standardize wine label terminology and the true Riesling grape by use of the prime grape variety names for use in prevent consumer confusion by designating American varietal wines. term ‘‘Johannisberg Riesling.’’ Owing to reducing the large number of synonyms the necessity to prepare new packaging EFFECTIVE DATE: October 1, 1999. for grape varieties that were previously and marketing materials, its use was FOR FURTHER INFORMATION CONTACT: Ms. used for labeling American wines. authorized for wines bottled prior to Teri Byers, Regulations Division, 650 The rule contained two other lists of January 1, 1999. Massachusetts Avenue, NW, alternative names that could be used as Washington, DC 20226; Telephone (202) grape wine designations until January 1, Petition 927–8195, or alcohol/ 1997, or January 1, 1999. Finally, the ATF subsequently received a petition [email protected]. rule also contained a procedure by from the law firm of Buchman & SUPPLEMENTARY INFORMATION: which interested persons could petition O’Brien, filed on behalf of trade
VerDate 18-JUN-99 16:53 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\13SER1.XXX pfrm02 PsN: 13SER1 49386 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations associations representing United States illustrating the negative impact on example, the comment from CAWG wineries. The petition asked ATF to wineries and consumers should ATF stated that the proposed extension was extend the phase-out period for the term restrict the Johannisberg Riesling phase- consistent with actions taken by ATF Johannisberg Riesling for an additional out period to three years. ELGIN drew with respect to other labeling terms, seven years to January 1, 2006. a comparison between Johannisberg such as Gamay Beaujolais, and that The petition provided several reasons Riesling and the 1982 Nissan ‘‘[g]iven the huge investment made by for extending the phase-out date. Corporation’s decision to change the growers and vintners in developing Despite the fact that ATF made it clear Datsun brand name to Nissan. ELGIN markets for our products, we believe the in the notices issued prior to T.D. ATF– asserted that this change in brand name transition time provided by this 370 that there was significant was implemented in the United States proposal is appropriate and fair.’’ controversy surrounding the term over a six-year period; however, Nissan A comment on behalf of the Johannisberg Riesling, the petition still saw its share drop in the first two Washington Wine Institute and alleged that ATF failed to provide the years from 5.9 percent to 4.5 percent Washington Wine Commission noted industry with notice that it was phasing due to the name change. the ‘‘serious economic consequences’’ to out the term. The petitioner also cited Notice No. 871 Washington growers and vintners that the 10 year phase-out period in the would result from a shorter phase-out recently published Treasury decision In response to the petition, ATF period. The comment stated that relating to Gamay Beaujolais as support issued Notice No. 871 on January 6, ‘‘Because 95% of all Riesling wine has for extending the period. The petition 1999 (64 FR 813). In the notice, ATF been sold in the U.S. as Johannisberg asserted that because the Johannisberg proposed extending the phase-out Riesling, we need every minute of the Riesling designation had been in period for an additional seven years. We proposed extension period to educate documented commercial use for over sought comments on the addition of our consumers in the hope that we can 100 years, an additional seven years four grape variety names to the list of minimize ultimate damages to the would provide enough transitional time prime names. Riesling category.’’ to educate the consuming public ATF also issued a rule that Other wineries also commented that it regarding the designation change. temporarily extended the effective date would take several years to do the type Finally, the petition states that the for phasing out the use of ‘‘Johannisberg of consumer education necessary to abrupt elimination of Johannisberg Riesling’’ on American wine labels. See avoid major defections from their Riesling would cause material economic T.D. ATF–405 (64 FR 753). The date was brands. Stimson Lane reiterated in its harm and hardship to the United States deferred until September 30, 1999, so comment the serious economic wine industry. that ATF would have time to evaluate consequences that would be associated The petitioners also submitted a letter the comments received in response to from the Deutsches Weininstitut GmbH with having to ‘‘jettison this name the notice of proposed rulemaking. ATF without the necessary transition period in support of the extension. Letters were stated that the proposed extension of the also submitted from several wineries, requested in our petition.’’ A comment phase-out period did not signify any from Sand Castle Winery reiterated the including Stimson Lane Vineyards & change in ATF’s position regarding the Estates (‘‘Stimson Lane’’) setting forth need to educate the public on the new eventual removal of ‘‘Johannisberg terminology. the reasons for an extension. Stimson Riesling’’ from the list of prime names. Lane noted that in the 1960s and 1970s, The President’s Forum of the ‘‘many inferior riesling products were Comments Received in Response to Beverage Alcohol Industry reiterated its being produced in the United Notice No. 871 prior support of the extension, and States. * * * To overcome the stigma ATF received nine comments in stated that extension would be in the that had become associated with these response to Notice No. 871. Six best interests of consumers and the U.S. various rieslings, we and other comments were in favor of allowing the wine industry. producers focused our attention and continued use of the designation JBC International submitted a brand investments on the term ‘‘Johannisberg Riesling’’ on American comment on behalf of CAWG and the Johannisberg Riesling to refer to a wine labels for an additional seven Wine Institute. In this comment, it was medium-dry, highly complex wine.’’ years. One comment flatly opposed any noted that Wine Institute supported the Stimson Lane argued that it would extension, while another comment extension of the phase-out of the term take several years to educate American suggested that a two-year extension ‘‘Johannisberg Riesling.’’ However, the consumers that the term ‘‘Riesling’’, would be more appropriate. The ninth comment stressed that the industry’s standing alone, now designates the same comment addressed semigeneric position with respect to the term wine previously known as designations. ‘‘Johannisberg Riesling,’’ which is not a ‘‘Johannisburg Riesling.’’ In fact, semigeneric designation, ‘‘does not Stimson Lane suggested that the mere Comments in Favor of the Proposed indicate any future positions the U.S. prospect was so ‘‘overwhelming and Extension industry might take with regard to the complex that the industry has not even Comments in favor of the proposed use of semi-generic terms.’’ begun to agree how they are going to extension were received from the Comments in Opposition to Proposed accomplish this.’’ They noted that the President’s Forum of the Beverage Extension term ‘‘Johannisberg Riesling’’ had been Alcohol Industry, Sand Castle Winery, used for more than 100 years, and has Stimson Lane Vineyards and Estates, the ATF received two comments in sales of 36,000,000 bottles per year. California Association of Winegrape opposition to the proposed seven year Accordingly, an additional seven years Growers (CAWG), the Washington Wine extension. The National Association of would provide a more reasonable phase- Institute and the Washington Wine Beverage Importers, Inc. (NABI) out period. Commission, and Buchman & O’Brien. suggested that a two year extension The petition also included a letter Several commenters stated that an would be more appropriate. Coudert from ELGIN, a marketing insufficient phase-out period would Brothers, on behalf of the Deutscher communications company, which have a significant economic impact on Weinfonds, opposed any extension of provided marketing information many growers and vintners. For the phase-out period.
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NABI suggested that further use of the ATF’s statutory mandate under the of approved prime names for grape term ‘‘Johannisberg Riesling’’ would be FAA Act is to regulate the use of terms varieties. misleading to consumers, since on wine labels so as to ensure that Vernaccia and Counoise Johannisberg is a place of origin, and the consumers are not misled, but instead wine does not come from Johannisberg. are adequately informed as to the In Notice No. 871, ATF also sought While they supported a ‘‘reasonable’’ identity of the wine. We stand behind additional comments regarding the phase-out period for U.S. winemakers, the reasons set forth in T.D. ATF–370 inclusion of ‘‘Vernaccia’’ and NABI suggested that a 10 year phase-out for discontinuing the use of ‘‘Counoise’’ as prime names in § 4.91. (the original three years provided by the ‘‘Johannisberg Riesling’’ as a prime No comments were received on either of final rule, plus the proposed seven year name for a grape variety. It is not the these names. extension) was too long. correct name for the variety, and there Millbrook Winery petitioned ATF for The NABI comment also supported are two better names (‘‘Riesling’’ and approval of ‘‘Vernaccia’’ as a prime ATF’s original determination in 1996 to ‘‘White Riesling’’) that are recognized name. Millbrook’s petition stated that set a 3 year phase-out period, and the throughout the world, and which do not they obtained Vernaccia cuttings from adequacy of ATF’s notice to the wine contain the geographic reference the foundation Plants Materials Service industry on this issue. Finally, the NABI ‘‘Johannisberg.’’ at the University of California at Davis comment pointed out that German Nonetheless, the vintners and grape several years ago, and have cultivated Riesling wines are not labeled as growers affected by this decision have this grape in their vineyards. ‘‘Johannisberg Riesling’’ unless the made a persuasive case that American As we stated in Notice No. 871, the wines were made from grapes grown in consumers still associate the name available literature indicates that the the geographic region of Johannisberg. ‘‘Johannisberg Riesling’’ with the true name ‘‘Vernaccia’’ is associated with Coudert Brothers submitted a Riesling grape in the United States. several unrelated Italian grape varieties, comment on behalf of the Deutscher American consumers may not associate including Vernacci di Oristano, Weinfonds (‘‘DW’’), a the term ‘‘Riesling,’’ standing by itself, Vernacci di San Giminiano, Vernaccia quasigovernmental authority in the with the wine that has been labeled for di Serrapetrona, and Vernaccia Federal Republic of Germany. The so many years as ‘‘Johannisberg Trentina. These varieties include both comment opposed the proposed Riesling.’’ green and black grapes, and are used in extension as unnecessary. Coudert making distinctively different red, It is reasonable to allow the industry Brothers reiterated that ‘‘Johannisberg white, and sparkling wines. Riesling’’ is not a correct varietal name, an additional seven years to educate It was unclear from the petition which and that the term ‘‘Johannisberg’’ is consumers as to the true meaning of the ‘‘Vernaccia’’ grape was actually instead a geographic term referencing a ‘‘Riesling’’ and ‘‘White Riesling’’ contained in the FPMS collection and district in the Rheingau region of varietal designations. By the end of this grown in U.S. vineyards. Accordingly, Germany where grapes have been grown period, American consumers will have ATF sought information on this issue in for more than a thousand years. sufficient information about the product the notice of proposed rulemaking. The comment from Coudert Brothers so that they will be able to make an However, no comments were submitted. supported the adequacy of ATF’s notice educated choice once the labeling In the absence of a positive on this issue, and suggested that since terminology changes. identification as to which ‘‘Vernaccia’’ ‘‘Johannisberg Riesling’’ is not a brand Two commenters suggested that ATF grape is being grown in the United name, the petitioners’ analogies to the should not further perpetuate the use of States, the requirements of § 4.93 have length of time needed to build consumer a misleading geographic term as a not been met with respect to this name. recognition of a new brand name were varietal name. While ATF agrees that Accordingly, ATF is not adding not appropriate. the name ‘‘Johannisberg Riesling’’ ‘‘Vernaccia’’ to the list of prime names Finally, the comment from Coudert should be phased out, it does not agree in section 4.91. Brothers noted that the petition had that its continued use for another seven Eberle Winery in Paso Robles, attached a letter in support of the years will mislead consumers. It should California, petitioned ATF to list proposed extension from Deutches be noted that wines labeled with a ‘‘Counoise’’ in § 4.91. Although this is a Weininstitut GmbH. Coudert Brothers varietal designation must also bear an well-documented red variety from the asserted that Deutches Wineinstitut is appellation of origin. See 27 CFR Rhone region of France, ATF had an affiliate of DW, and that after a full § 4.23(a). Thus, the labels for insufficient information to determine review of the facts and history, Deutches ‘‘Johannisberg Riesling’’ wines will whether ‘‘Counoise’’ is suitable for wine Weininstitut had reconsidered its clearly indicate the true geographic production in the United States, or the statements in that letter and adopted the origin of the wines. Accordingly, we do extent to which ‘‘Counoise’’ may be position of DW. not believe that this limited extension of grown domestically. the phase-out period will result in Accordingly, ATF solicited Conclusion consumer confusion. information on the domestic cultivation After carefully considering the Traminette and Aglianico of the ‘‘Counoise’’ grape. No comments comments on this issue, ATF has on this issue were received. Since the decided to extend the phase-out period In Notice No. 871, ATF proposed to requirements of § 4.93 have not been for an additional seven years. add the names ‘‘Traminette’’ and met regarding this grape name, we are Accordingly, the term may be used on ‘‘Aglianico’’ to the list of approved not amending § 4.91 to add the name labels of American wines bottled prior prime names in § 4.91. As discussed in ‘‘Counoise.’’ to January 1, 2006. We believe that this further detail in the notice, ATF was period of time will allow wineries provided with sufficient evidence to Trousseau vs. Bastardo sufficient time to educate consumers satisfy the requirements under § 4.93. Section 4.91 currently lists Trousseau regarding the name change, and to make No comments were received regarding as a prime grape name while § 4.92 lists necessary changes in the labeling, these varietal names. Accordingly, ATF Bastardo as an alternative name for this packaging, and merchandising of is amending § 4.91 to include grape variety which cannot be used for ‘‘Riesling’’ and ‘‘White Riesling’’ wines. ‘‘Traminette’’ and ‘‘Aglianico’’ in the list designating American wine bottled after
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January 1, 1997. Trousseau is a French PART 4ÐAMENDED implementing section 3.7(b) of name for the grape, while Bastardo is Executive Order 12958, Classified the Portuguese name. ATF was asked to Paragraph 1. The authority citation National Security Information. This rule for Part 4 continues to read as follows: reexamine whether the name Bastardo provides standards and guidelines for should be authorized as a synonym for Authority: 27 U.S.C. 205. identifying equities of other agencies Trousseau, or whether Bastardo should Par. 2. Section 4.91 is amended by and foreign governments contained in replace Trousseau as the prime grape adding the names ‘‘Aglianico’’ and information requiring referral for review name at § 4.91. ‘‘Traminette,’’ in alphabetical order, to before declassification and subsequent ATF received no comments on this the list of prime grape names, to read as issue. Accordingly, ATF sees no reason public disclosure. It includes guidelines follows: to overturn the decision made in T.D. for referring, redacting, and properly ATF–370. Trousseau will remain the § 4.91 List of approval prime names. marking information that is subject to prime name for this grape. the automatic declassification * * * * * provisions of the Executive order. Paperwork Reduction Act Aglianico EFFECTIVE DATE: October 13, 1999. The provisions of the Paperwork * * * * * Reduction Act of 1995 (44 U.S.C. 3507) FOR FURTHER INFORMATION CONTACT: and its implementing regulations, 5 CFR Traminette Steven Garfinkel, Director, ISOO. part 1320, do not apply to this final rule * * * * * Telephone: 202–219–5250. because no requirement to collect Par. 3. Section 4.92 is amended by SUPPLEMENTARY INFORMATION: This rule information is imposed. removing the name ‘‘Johannisberg is issued pursuant to the provisions of Regulatory Flexibility Act Riesling’’ from paragraph (b) and by Sections 3.4 and 3.7 (b) of Executive It is hereby certified that this adding a new paragraph (c), to read as Order 12958, published April 20, 1995 regulation will not have a significant follows: (60 Fed. Reg. 19825). Section 3.4 of E.O. economic impact on a substantial § 4.92 Alternative names permitted for 12958 requires that all classified number of small entitles. This temporary use. national security information contained regulation will extend the phase-out (c) Wines bottled prior to January 1, in records that (1) are more than 25 period for the use of the term 2006. years old, and (2) have been determined Johannisberg Riesling and it will permit to have permanent historical value the use of other grape varietal names. Alternative Prime Name under title 44, United States Code, will The regulation will not impose any Name be automatically declassified whether or recordkeeping or reporting Johannisberg Riesling. not the records have been reviewed. requirements. Accordingly, a regulatory Subsequently, all classified information flexibility analysis is not required Riesling in such records will be automatically because this final rule does not (1) have declassified no longer than 25 years significant secondary or incidental Signed: July 22, 1999. effects on a substantial number of small John W. Magaw, from the date of its original entities; or (2) I impose, or otherwise Director. classification, except for information cause a significant increase in the Approved: August 13, 1999. properly exempted in accordance with the Order. Section 3.7(b) requires that, reporting, recordkeeping, or other John P. Simpson, when an agency receives any request for compliance burdens on substantial Deputy Assistant Secretary (Regulatory, Tariff entities. & Trade Enforcement). documents in its custody that contain information that was originally [FR Doc. 99–23784 Filed 9–10–99; 8:45 am] Executive Order 12866 classified by another agency, or comes BILLING CODE 4810±31±P It has been determined that this across such documents in the process of regulation is not a significant regulatory automatic declassification or systematic action as defined by Executive Order review provisions of this Order, the 12866. Accordingly, this final rule is not NATIONAL ARCHIVES AND RECORDS ADMINISTRATION agency must refer copies of any request subject to the analysis required by this and the pertinent documents to the Executive Order. Information Security Oversight Office originating agency for processing, and Drafting Information may, after consultation with the 32 CFR Part 2001 The principal author of this document originating agency, inform any requester is Ms. Teri Byers, Regulations Division, [Directive No. 1; Appendix A] of the referral unless such an association is itself classified under this Order. Bureau of Alcohol, Tobacco and [RIN 3095±AA92] Firearms. However, other personnel This amendment was developed and within ATF and the Treasury Classified National Security approved by more than 25 agencies that Department participated in developing Information serve on the External Referral Working this document. Group (ERWG) sponsored and endorsed AGENCY: Information Security Oversight List of Subjects in 27 CFR Part 4 Office (ISOO), National Archives and by the Intelligence Community’s Advertising, Consumer protection, Records Administration (NARA). Declassification Program Managers’ Council. Forty-two agencies responded Customs duties and inspections, ACTION: Final rule. Imports, Labeling, Packaging and to ISOO’s May 1998 call for comment on containers, Wine. SUMMARY: This rule establishes a the amendment. Eight of them provided uniform referral standard that Federal written comments or suggestions, all of Authority and Issuance agencies must use for multi-agency which were considered and Accordingly, 27 CFR part 4, Labeling declassification issues. The new incorporated as appropriate by February and Advertising of Wine, is amended as provision responds to a need for further 1999. The amendment is being follows: guidance to Federal agencies in
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Consistent declassification The exchange of information between implementing Directive No. 1, issued by of information through standardized agencies and the final disposition of the Director of Office of Management procedures should result in lower cost documents are affected by differences in and Budget (OMB) on October 13, 1995, and greater process efficiency, review the approaches to declassification. when ISOO was a component of OMB. accuracy, and the protection of the Agencies conducting pass/fail reviews With the enactment of the Treasury, equities of all executive branch may refer documents to agencies that Postal Service and General Government agencies. redact. Actions taken by the sender and Appropriations Act for Fiscal Year 1996, (b) Applicability. These standards are the recipient may differ as noted below: ISOO became a component of the binding on all executive branch (1) When referral is from a pass/fail National Archives and Records agencies that create or handle classified agency to a pass/fail agency, both Administration. information and are applicable to agencies conduct pass/fail reviews and This rule is being issued as a final records covered under Section 3.4 of the annotate the classification or rule without prior notice of proposed Order. With respect to records reviewed declassification decisions on the tabs rulemaking as allowed by the prior to the issuance of these standards, and/or documents in accordance with Administrative Procedure Act, 5 U.S.C. deviations are acceptable as long as NARA guidelines. The receiving agency 553(b)(3)(A) for rules of agency prior practice does not completely should also notify the referring agency procedure. This rule is not a significant obstruct record referral. that the review has been completed. regulatory action for the purposes of (c) Responsibility. The senior agency (2) When referral is from a pass/fail Executive Order 12866. This rule is not official is responsible for the agency’s agency to a redaction agency, the a major rule as defined in 5 U.S.C. referral program. The senior agency redaction agency is only required to Chapter 8, Congressional Review of official shall designate agency personnel conduct pass/fail reviews of documents Agency Rulemaking. As required by the to assist in carrying out this referred by a pass/fail agency. If the Regulatory Flexibility Act, we certify responsibility. redaction agency wishes to redact the that this rule will not have a significant (d) Definitions. For the purpose of this document, it must do so on a copy of impact on small entities because it section: the referred document, then file the applies only to Federal agencies. Declassified or Declassification means redacted version with the original. The the authorized change in the status of redaction agency should also notify the List of Subjects in 32 CFR Part 2001 information from classified information pass/fail referring agency that the Archives and records, Authority to unclassified information. review has been completed. delegations (Government agencies), Exempted means a declassification (3) Referrals from redaction agencies Classified information, Executive technique that regards information at to pass/fail agencies will be in the form orders, Freedom of Information, the full document level. Any exemptible of document copies. In the course of Information, Intelligence, National portion of a document may result in review the pass/fail agency may either defense, National security information, exemption (failure) of the entire pass or fail the document or its equities. Presidential documents, Reporting and document. Documents that contain no Failed documents will be reviewed and recordkeeping requirements, Security exemptible information are passed and redacted when practicable. information, Security measures. therefore declassified. Declassified (4) Referrals between redaction For the reasons set forth in the documents may be subject to other agencies may result in redaction of any preamble, NARA amends part 2001 of FOIA exemptions other than the exemptible equities. title 32, Code of Federal Regulations, as security classification exemption ((b)(1), (f) Referral decisions. When agencies follows: and the requirements placed by legal review documents only to the point at authorities governing Presidential which exemptible information is PART 2001ÐCLASSIFIED NATIONAL holdings. identified, they must take one of the SECURITY INFORMATION Pass/fail (P/F) means a following actions to protect any other declassification technique that regards unidentified equities that may be in the The authority citation for part 2001 information at the full document level. unreviewed portions of the document: continues to read: Any exemptible portion of a document (1) Complete a review of the Authority: Section 5.2(a) and (b), and may result in exemption (failure) of the document to identify other agency section 5.4 E.O. 12958, 60 FR 19825, April entire document. Documents that equities and notify those agencies; or 20, 1995. contain no exemptible information are (2) Exempt the document and assign 2. Add § 2001.55 to subpart E to read: passed and therefore declassified. a Date/Event for automatic Declassified documents may be subject declassification, before which time they § 2001.55 Document referral. to other FOIA exemptions other than the must provide timely notification to any (a) Purpose. Under E.O. 12958, security exemption ((b)(1)), and the equity agencies. Agencies reviewing agencies reviewing records for requirements placed by legal authorities previously exempted documents may declassification must facilitate the governing Presidential holdings. apply a different exemption and new review of equities of other agencies Record means the statutory definition Date/Event for automatic contained in their records. Because as provided under title 44 U.S.C. 3301 declassification based upon the content agencies have a variety of processes for and 44 U.S.C. 2111, 2111 note, and of previously unreviewed equities. review and referral, common language 2201. (g) Unmarked or improperly marked and standards are needed to ensure Redaction means a sanitization documents. Agencies that find other clear, concise communication and technique that involves removal (editing agency information in unmarked or coordinated action among all agencies out) of exempted information from a improperly marked documents that involved in the referral process. document. have been maintained and protected as Common language and standards are Tab means a narrow paper sleeve classified information must afford those needed for declassification, exemption placed around a document or group of documents appropriate protection and from automatic declassification, and documents in such a way that it would tab or refer the documents as described proper marking of information subject to be readily visible in paragraph (h) of this section.
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Agencies must provide other pertinent back of each file folder, or back of the (2) If only one exemption from information, if available, regarding box if there are no file folders. declassification applies to all redacted additional copies or possible public (ii) Agency notification must include, portions of a document, the applicable disclosure. at a minimum, the following exemption may be indicated on the (h) Means of Referral. The reviewing information: the approximate volume of front page of the redacted copy. If more agency must communicate referrals to equity, the highest classification of than one exemption applies to a equity agencies. They may use either of documents, the exact location (to box document, each redacted portion for the methods below: level) of the documents so marked, and which an exemption is asserted must be (1) Full text referral. Agencies will instructions related to access to the marked on the redacted copy. make referrals on media and in a format boxes containing the documents. (3) Redacted portions must be marked mutually agreed to by the referring and (iii) Agencies will acknowledge to indicate the agency and the number receiving agencies. Each referral request receipt of referral notifications. They of the applicable exemption, for will clearly identify the referring agency should notify the agency that placed the example, DIA25X1. tabs that the review is complete. Any and may identify the sections or areas (4) Agencies reviewing a referred additional equities noted in the review of the document containing the document must indicate on the tab, must be annotated on the tab and receiving agency’s equities and the folder, or box the result of the review brought to the attention of the agency requested action. (i.e., exemption or declassification). The that tabbed the document so the tabbing (2) Tab and notify. agency can notify those newly identified original document should be marked (i) Agencies will use NARA-approved agencies. with the final action only by the agency tabs and will clearly indicate on them (i) [Reserved]. responsible for the final declassification the agency or agencies having equity in (j) Reviewed document marking. decision. Options include marking a the document(s) held within the tabs. Consistency in marking is essential in copy of the document, marking the tab, Successive documents with identical the referral of significant numbers of notification as part of a transmittal, or equity(ies) may be grouped within a documents under the Executive Order. marking the box or folder according to single tab. Documents with differing Decisions made during review must be NARA guidelines. Automated agencies equities, or non-successive documents, communicated clearly to all subsequent may forgo marking documents, provided must be tabbed individually. In general, reviewers. the required information is maintained document order may not be changed to (1) Redactions must never be in an agency database and is accessible facilitate tabbing. In cases where there indicated on original documents, only to other agencies. Exempt documents are so many tabbed documents in a box on copies. Redaction agencies need a may be marked. that tabbing documents individually means of tracking the results of review (i) Sample Exempted Document would seriously overfill the box, the (at the document level) by all reviewing Stamp. Exempt documents may be reviewer may group documents under a agencies and a reason for each stamped as shown in the following single tab for each agency equity at the redaction. example:
(A) Normally, only one stamp should (2) Date/Event: A specific date or and names may be added if additional be placed on the document with any event for declassification. equities are found. subsequent reviewing agencies adding (3) Other Agency Equity: This line is (4) Reviewed by: Optional. If used, their information to the stamp on the used to track other agency equities and enter name or other personal identifier. document, if possible. The stamp their review. The declassification (5) Date: Enter date the action was taken. should not cover any writing on the authority enters ‘‘NONE’’ if no other (ii) Sample Stamp for Document document. agency equities are present, the Declassification. (A) When agencies (B) Specific fields in the stamp must identifiers of agencies with equity, or mark declassified documents, the stamp be completed as follows: ‘‘TBD’’ (To be determined) if equities must, at a minimum, include the (1) Exemption Code: Agency(ies) ID are unknown. Agency identifiers are information shown in the following and 25X plus exemption code(s). crossed off as the reviews are completed example:
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(B) Specific fields in the stamp must (NYCDOT), requested a deviation from Mystic River in Mystic, Connecticut. be completed as follows: the drawbridge operating regulations to This deviation from the regulations (1) Agency: Name of the agency. facilitate repairs to the operating allows the bridge owner to require a two (2) By: Name or personal identifier of machinery at the bridge. This deviation hour advance notice for openings, the reviewer. (Optional) from the operating regulations allows Sunday through Thursday, 9:30 p.m. to (3) Date: Date the action was taken. the Ninth Street Bridge to open on 11:30 p.m., and 12:30 a.m. to 5 a.m., Dated: September 7, 1999 signal; except that, from 4 p.m. to 8 September 7, 1999, through September John W. Carlin, a.m., daily, from September 7, 1999, 27, 1999. This action is necessary to Archivist of the United States. through November 5, 1999, the draw facilitate electrical modifications at the [FR Doc. 99–23800 Filed 9–10–99; 8:45 am] shall open if at least eight hours notice bridge. is given by calling the number posted at BILLING CODE 7515±01±P DATES: This deviation is effective from the bridge. September 7, 1999, through September Thirty days notice to the Coast Guard 27, 1999. for approval of this maintenance repair DEPARTMENT OF TRANSPORTATION was not given by the bridge owner and FOR FURTHER INFORMATION CONTACT: Joe Schmied, Project Officer, First Coast Coast Guard was not required because this work involves vital, unscheduled Guard District, at (212) 668–7165. 33 CFR Part 117 maintenance that must be performed SUPPLEMENTARY INFORMATION: The without undue delay. The Coast Guard Amtrak Bridge, mile 2.4, across the [CGD01±99±156] has approved NYCDOT’s request to Mystic River in Mystic, Connecticut, has because the work was determined to be Drawbridge Operation Regulations: a vertical clearance of 4 feet at mean necessary for public safety and the Gowanus Canal, NY high water, and 7 feet at mean low water continued operation of the bridge. in the closed position. The bridge AGENCY: Coast Guard, DOT. In accordance with 33 CFR 117.35(c), owner, National Railroad Passenger ACTION: Notice of temporary deviation this work will be performed with all due Corporation (Amtrak), requested a from regulations. speed in order to return the bridge to temporary deviation from the operating normal operation as soon as possible. regulations to facilitate electrical SUMMARY: The Commander, First Coast This deviation from the operating modifications at the bridge. Guard District, has issued a temporary regulations is authorized under 33 CFR The Coast Guard granted a deviation deviation from the drawbridge operation 117.35. allowing AMTRAK to deviate from the regulations governing the operation of Dated: September 2, 1999. normal operating regulations to the Ninth Street Bridge, mile 1.4, across R.M. Larrabee, facilitate necessary repairs for 39 days Gowanus Canal in New York City, New Rear Admiral, U.S. Coast Guard Commander, beginning on July 25, 1999, through York. This deviation allows the bridge First Coast Guard District. September 2, 1999. The work did not owner to require an eight hour advance [FR Doc. 99–23715 Filed 9–10–99; 8:45 am] begin on July 25 as scheduled. Work did notice for openings from 4 p.m. to 8 BILLING CODE 4910±15±M not start until August 3, 1999. The a.m., daily, from September 7, 1999, bridge owner has requested a second through November 5, 1999. This action deviation for 21 days to complete the is necessary to facilitate necessary DEPARTMENT OF TRANSPORTATION work. repairs to the operating machinery at the This deviation to the operating bridge. Coast Guard regulations allows the bridge owner to DATES: This deviation is effective from require a two hour advance notice for 33 CFR Part 117 September 7, 1999, to November 5, bridge openings for the Amtrak Bridge, 1999. [CGD01±99±159] mile 2.4, across the Mystic River in FOR FURTHER INFORMATION CONTACT: Mr. Mystic, Connecticut. This deviation will Joeseph Schmied, Project Officer, First Drawbridge Operation Regulations: be in effect from Sunday through Coast Guard District, at (212) 668–7165. Mystic River, CT Thursday, 9:30 p.m. to 11:30 p.m., and SUPPLEMENTARY INFORMATION: The Ninth AGENCY: Coast Guard, DOT. 12:30 a.m. to 5 a.m., September 7, 1999, Street Bridge, at mile 1.4, across the ACTION: Notice of temporary deviation through September 27, 1999. Requests Gowanus Canal in New York City, New from regulations. for bridge openings can be made by York, has a vertical clearance of 5 feet calling (860) 395–2355 or on marine at mean high water, and 9 feet at mean SUMMARY: The Commander, First Coast radio channel 13 VHF/FM. Mariners low water in the closed position. The Guard District, has issued a temporary requiring an emergency opening are bridge is required to open on signal at deviation from the drawbridge operation advised to call Amtrak’s Chief all times. The bridge owner, New York regulations governing the operation of Dispatcher at (617) 345–7569. Vessels City Department of Transportation the Amtrak Bridge, mile 2.4, across the that can pass under the bridge without
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.225 pfrm08 PsN: 13SER1 49392 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations an opening may do so at all times and for making this regulation effective Evaluation under paragraph 10e of the during the closed periods. less than 30 days after Federal Register regulatory policies and procedures of In accordance with 33 CFR 117.35(c), publication. Due to the date the DOT is unnecessary. This finding is this work will be performed with all due Application for Approval of Marine based on the minimal time that vessels speed in order to return the bridge to Event was received, there was will be restricted from the zone, that normal operation as soon as possible. insufficient time to draft and publish an vessels may safely anchor to the north This deviation from the operating NPRM and publish the final rule 30 and south of the zone, that vessels may regulations is authorized under 33 CFR days before its effective date. Any delay still transit through Anchorage Channel 117.35. encountered in this regulation’s during the event, and extensive advance Dated: September 2, 1999. effective date would be contrary to notifications which will be made. public interest since immediate action is R.M. LaRrabee, needed to close the waterway and Small Entities Rear Admiral, U.S. Coast Guard, Commander, protect the maritime public from the First Coast Guard District. Under the Regulatory Flexibility Act hazards associated with this fireworks (5 U.S.C. 601 et seq.), the Coast Guard [FR Doc. 99–23713 Filed 9–10–99; 8:45 am] display. considered whether this final rule will BILLING CODE 4910±15±M Background and Purpose have a significant economic impact on a substantial number of small entities. On August 17, 1999, Fireworks by DEPARTMENT OF TRANSPORTATION ‘‘Small entities’’ include small Grucci Inc. submitted an application to businesses, not-for-profit organizations hold a fireworks program on the waters Coast Guard that are independently owned and of Upper New York Bay in Federal operated and are not dominant in their 33 CFR Part 165 Anchorage 20C. The fireworks program fields, and governmental jurisdictions is being sponsored by Periphonics Corp. with populations of less than 50,000. [CGD01±99±152] This regulation establishes a safety zone For reasons discussed in the in all waters of Upper New York Bay RIN 2115±AA97 within a 360 yard radius of the Regulatory Evaluation above, the Coast Guard certifies under section 605(b) of Safety Zone: Periphonics Corp. 30th fireworks barge in approximate position 40°41′16.5′′N 074°02′23′′W (NAD 1983), the Regulatory Flexibility Act (5 U.S.C. Anniversary Fireworks, New York 601 et seq.) that this final rule will not Harbor, Upper Bay approximately 360 yards east of Liberty Island, New York. The safety zone is in have a significant economic impact on a substantial number of small entities. AGENCY: Coast Guard, DOT. effect from 9 p.m. until 10:30 p.m. on ACTION: Temporary final rule. Saturday, September 25, 1999. There is Collection of Information no rain date for this event. The safety SUMMARY: The Coast Guard is zone prevents vessels from transiting a This final rule does not provide for a establishing a temporary safety zone for portion of Federal Anchorage 20C and is collection of information under the the Periphonics Corp. 30th Anniversary needed to protect boaters from the Paperwork Reduction Act of 1995 (44 Fireworks Display located in Federal hazards associated with fireworks U.S.C. 3501 et seq.). Anchorage 20C, New York Harbor, launched from a barge in the area. Federalism Upper Bay. This action is necessary to Recreational and commercial vessel provide for the safety of life on traffic will be able to anchor in the The Coast Guard has analyzed this navigable waters during the event. This unaffected northern and southern final rule under the principles and action is intended to restrict vessel portions of Federal Anchorage 20C. criteria contained in Executive Order traffic in a portion of Federal Anchorage Federal Anchorages 20A and 20B, to the 12612 and has determined that this final 20C. north, and Federal Anchorages 20D and rule does not have sufficient implications for federalism to warrant DATES: This rule is effective from 9 p.m. 20E, to the south, are also available for the preparation of a Federalism until 10:30 p.m., on Saturday, vessel use. Marine traffic will still be Assessment. September 25, 1999. There is no rain able to transit through Anchorage date for this event. Channel, Upper Bay, during the event as Unfunded Mandates the safety zone only extends 125 yards ADDRESSES: Documents as indicated in into the 925-yard wide channel. Public Title II of the Unfunded Mandates this preamble are available for notifications will be made prior to the Reform Act of 1995 (UMRA) [Pub. L. inspection or copying at Coast Guard event via the Local Notice to Mariners 104–4, 109 Stat. 48] requires Federal Activities New York, 212 Coast Guard and marine information broadcasts. agencies to assess the effects of certain Drive, room 205, Staten Island, New regulatory actions on State, local, and York 10305, between 8 a.m. and 3 p.m., Regulatory Evaluation tribal governments, and the private Monday through Friday, except Federal This final rule is not a significant sector. UMRA requires a written holidays. The telephone number is (718) regulatory action under section 3(f) of statement of economic and regulatory 354–4193. Executive Order 12866 and does not alternatives for rules that contain FOR FURTHER INFORMATION CONTACT: require an assessment of potential costs Federal mandates. A Federal mandate is Lieutenant J. Lopez, Waterways and benefits under section 6(a)(3) of that a new or additional enforceable duty Oversight Branch, Coast Guard Order. It has not been reviewed by the imposed on any State, local, or tribal Activities New York (718) 354–4193. Office of Management and Budget under government, or the private sector. If any SUPPLEMENTARY INFORMATION: that Order. It is not significant under the Federal mandate causes those entities to regulatory policies and procedures of spend, in the aggregate, $100 million or Regulatory History the Department of Transportation (DOT) more in any one year, the UMRA Pursuant to 5 U.S.C. 553, a notice of (44 FR 11040; February 26, 1979). The analysis is required. This final rule does proposed rulemaking (NPRM) was not Coast Guard expects the economic not impose Federal mandates on any published for this regulation. Good impact of this final rule to be so State, local, or tribal governments, or the cause exists for not publishing an NPRM minimal that a full Regulatory private sector.
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Environment DEPARTMENT OF TRANSPORTATION the City of Yonkers. This regulation The Coast Guard considered the establishes a safety zone in all waters of Coast Guard environmental impact of this final rule the Hudson River within a 360 yard radius of the fireworks barge in and concluded that under figure 2–1, 33 CFR Part 165 paragraph 34(g), of Commandant approximate position 40°56′14′′ Instruction M16475.1C, this final rule is [CGD01±99±154] 073°54′28′′W (NAD 1983), categorically excluded from further RIN 2115±AA97 approximately 350 yards northwest of environmental documentation. A the Yonkers Municipal Pier. The safety ‘‘Categorical Exclusion Determination’’ Safety Zone: City of Yonkers zone is in effect from 7:30 p.m. until 9 is available in the docket for inspection Fireworks, New York, Hudson River p.m. on Saturday, September 18, 1999. or copying where indicated under There is no rain date for this event. The ADDRESSES. AGENCY: Coast Guard, DOT. safety zone prevents vessels from ACTION: Temporary final rule. List of Subjects in 33 CFR Part 165 transiting a portion of the Hudson River and is needed to protect boaters from SUMMARY: The Coast Guard is Harbors, Marine safety, Navigation the hazards associated with fireworks (water), Reporting and recordkeeping establishing a temporary safety zone for the City of yonkers Fireworks Display launched from a barge in the area. requirements, Security measures, Recreational and commercial vessel Waterways. located on the Hudson River. This action is necessary to provide for the traffic will be able to transit to the west Regulation safety of life on navigable waters during of the zone. Public notifications will be For the reasons discussed in the the event. This action is intended to made prior to the event via the Local preamble, the Coast Guard amends 33 restrict vessel traffic in a portion of the Notice to Mariners and marine CFR Part 165 as follows: Hudson River. information broadcasts. DATES: This rule is effective from 7:30 Regulatory Evaluation PART 165Ð[AMENDED] p.m. until 9 p.m., on Saturday, 1. The authority citation for Part 165 September 18, 1999. There is no rain This final rule is not a significant continues to read as follows: date for this event. regulatory action under section 3(f) of Executive Order 12866 and does not Authority: 33 U.S.C. 1231; 50 U.S.C. 191; ADDRESSES: Documents as indicated in 33 CFR 1.05–1(g), 6.04–1, 6.04–6, 160.5; 49 this preamble are available for require an assessment of potential costs CFR 1.46. inspection or copying at Coast Guard and benefits under section 6(a)(3) of that Order. It has not been reviewed by the 2. Add temporary § 165T.0–152 to Activities New York, 212 Coast Guard Office of Management and Budget under read as follows: Drive, room 205, Staten Island, New York 10305, between 8 a.m. and 3 p.m., that Order. It is not significant under the § 165.T01±152 Safety Zone: Periphonics Monday through Friday, except Federal regulatory policies and procedures of Corp. 30th Anniversary Fireworks, New holidays. The telephone number is (718) the Department of Transportation (DOT) York Harbor, Upper Bay. 354–4193. (44 FR 11040; February 26, 1979). The (a) Location. The following area is a FOR FURTHER INFORMATION CONTACT: Coast Guard expects the economic safety zone: All waters of New York Lieutenant J. Lopez, Waterways impact of this final rule to be so Harbor, Upper Bay within a 360-yard Oversight Branch, Coast Guard minimal that a full Regulatory radius of the fireworks barge in Activities New York (718) 354–4193. Evaluation under paragraph 10e of the approximate position 40°41′16.5′′N SUPPLEMENTARY INFORMATION: regulatory policies and procedures of 074°02′23′′W (NAD 1983), DOT is unnecessary. This finding is approximately 360 yards east of Liberty Regulatory History based on the minimal time that vessels Island, New York. Pursuant to 5 U.S.C. 553, a notice of will be restricted from the zone, that (b) Effective period. This section is proposed rulemaking (NPRM) was not vessels may safely transit to the west of effective from 9 p.m. until 10:30 p.m. on published for this regulation. Good the zone, and extensive advance Saturday, September 25, 1999. There is cause exists for not publishing an NPRM notifications which will be made. no rain date for this event. and for making this regulation effective (c) Regulations. Small Entities (1) The general regulations contained less than 30 days after Federal Register in 33 CFR 165.23 apply. publication. Due to the date the Under the Regulatory Flexibility Act (2) All persons and vessels shall Application for Approval of Marine (5 U.S.C. 601 et seq.), the Coast Guard comply with the instructions of the Event was received, there was considered whether this final rule will Coast Guard Captain of the Port or the insufficient time to draft and publish an have a significant economic impact on designated on-scene-patrol personnel. NPRM and publish the final rule 30 a substantial number of small entities. These personnel comprise days before its effective date. Any delay ‘‘Small entities’’ include small commissioned, warrant, and petty encountered in this regulation’s businesses, not-for-profit organizations officers of the Coast Guard. Upon being effective date would be contrary to that are independently owned and hailed by a U.S. Coast Guard vessel by public interest since immediate action is operated and are not dominant in their siren, radio, flashing light, or other needed to close the waterway and fields, and governmental jurisdictions means, the operator of a vessel shall protect the maritime public from the with populations of less than 50,000. proceed as directed. hazards associated with this fireworks display. For reasons discussed in the Dated: September 3, 1999. Regulatory Evaluation above, the Coast R.E. Bennis, Background and Purpose Guard certifies under section 605(b) of Captain, U.S. Coast Guard, Captain of the Bay Fireworks has submitted an the Regulatory Flexibility Act (5 U.S.C. Port, New York. application to hold a fireworks program 601 et seq.) that this final rule will not [FR Doc. 99–23717 Filed 9–10–99; 8:45 am] on the waters of the Hudson River. The have a significant economic impact on BILLING CODE 4910±15±M fireworks program is being sponsored by a substantial number of small entities.
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Collection of Information 2. Add temporary § 165.T01–154 to Western Alaska, or his on scene This final rule does not provide for a read as follows: representative. The safety zone will collection of information under the ensure the safety of human life and § 165.T01±154 Safety Zone: City of property during the rocket launch. Paperwork Reduction Act of 1995 (44 Yonkers Fireworks, New York Hudson U.S.C. 3501 et seq.). River. DATES: This temporary final rule is effective from 6 a.m. on September 11, Federalism (a) Location. The following area is a safety zone: All waters of the Hudson 1999, until 10 p.m. on November 15, The Coast Guard has analyzed this River within a 360 yard radius of the 1999. final rule under the principles and fireworks barge located in approximate ADDRESSES: The public docket for this criteria contained in Executive Order position 40°56′14′′N 073°54′28′′W (NAD rulemaking is maintained by Coast 12612 and has determined that this final 1983), approximately 350 yards Guard Marine Safety Office Anchorage, rule does not have sufficient northwest of the Yonkers Municipal 510 ‘‘L’’ Street, Suite 100, Anchorage, implications for federalism to warrant Pier. AK 99501. Materials in the public the preparation of a Federalism (b) Effective period. This section is docket are available for inspection and Assessment. effective from 7:30 p.m. until 9 p.m. on copying at Coast Guard Marine Safety Office Anchorage. Normal Office hours Unfunded Mandates Saturday, September 18, 1999. There is no rain date for this event. are 7:30 a.m. to 4 p.m., Monday through Title II of the Unfunded Mandates (c) Regulations. Friday, except federal holidays. Reform Act of 1995 (UMRA) [Pub. L. (1) The general regulations contained FOR FURTHER INFORMATION CONTACT: 104–4, 109 Stat. 48] requires Federal in 33 CFR 165.23 apply. LCDR Byron Black, Marine Safety Office agencies to assess the effects of certain (2) All persons and vessels shall Anchorage, at (907) 271–6700. regulatory actions on State, local, and comply with the instructions of the SUPPLEMENTARY INFORMATION: tribal governments, and the private Coast Guard Captain of the Port or the sector. UMRA requires a written designated on-scene-patrol personnel. Regulatory History statement of economic and regulatory These personnel comprise On July 21, 1999, the Coast Guard alternatives for rules that contain commissioned, warrant, and petty published a notice of proposed Federal mandates. A Federal mandate is officers of the Coast Guard. Upon being rulemaking (NPRM) entitled Safety a new or additional enforceable duty hailed by a U.S. Coast Guard vessel by Zone; Gulf of Alaska, southeast of imposed on any State, local, or tribal siren, radio, flashing light, or other Narrow Cape in the Federal Register (64 government, or the private sector. If any means, the operator of a vessel shall FR 39108). The Coast Guard received no Federal mandate causes those entities to proceed as directed. letters commenting on the proposed spend, in the aggregate, $100 million or Dated: September 3, 1999. rulemaking. No public hearing was more in any one year, the UMRA R.E. Bennis, requested, and none was held. analysis is required. This final rule does not impose Federal mandates on any Captain, U.S. Coast Guard, Captain of the Background and Purpose Port, New York. State, local, or tribal governments, or the The Alaska Aerospace Development private sector. [FR Doc. 99–23716 Filed 9–10–99; 8:45 am] BILLING CODE 4910±15±M Corporation (AADC), in conjunction Environment with the United States Air Force, will launch an unmanned rocket from their The Coast Guard considered the DEPARTMENT OF TRANSPORTATION facility at Narrow Cape, Kodiak Island, environmental impact of this final rule Alaska sometime between September and concluded that under figure 2–1, Coast Guard 11, 1999, and November 15, 1999. The paragraph 34(g), of Commandant safety zone is necessary to protect Instruction M16475.1C, this final rule is 33 CFR Part 165 spectators and transiting vessels from categorically excluded from further [COTP Western Alaska±99±012] the potential hazards associated with environmental documentation. A the launch. ‘‘Categorical Exclusion Determination’’ RIN 2115±AA97 The launch time is scheduled to take is available in the docket for inspection place something between September 11, Safety Zone; Gulf of Alaska, Southeast or copying where indicated under 1999, and November 15, 1999. The of Narrow Cape, Kodiak Island, Alaska ADDRESSES. Coast Guard will announce via List of Subjects in 33 CFR Part 165 AGENCY: Coast Guard, DOT. Broadcast Notice to Mariners the anticipated date and time of the launch Harbors, Marine safety, Navigation ACTION: Temporary final rule. and will grant general permission to (water), Reporting and recordkeeping SUMMARY: The Coast Guard is enter the safety zone during those times requirements, Security measures, establishing a temporary safety zone in in which the launch does not pose a Waterways. the Gulf of Alaska, southeast of Narrow hazard to mariners. Because the Regulation Cape, Kodiak Island, Alaska. The zone hazardous condition is expected to last is needed to protect the safety of For the reasons discussed in the for approximately 4 hours of one day, persons and vessels operating in the preamble, the Coast Guard amends 33 and because general permission to enter vicinity of the safety zone during a CFR Part 165 as follows: the safety zone will be given during rocket launch from the Alaska non-hazardous times, the impact of this PART 165Ð[AMENDED] Aerospace Development Corporation, rule on commercial and recreational Narrow Cape, Kodiak Island facility. traffic is expected to be minimal. 1. The authority citation for Part 165 Entry of vessels or persons into this continues to read as follows: zone is prohibited unless specifically Discussion of Comments and Changes Authority: 33 U.S.C. 1231; 50 U.S.C. 191; authorized by the Commander, No comments were received relating 33 CFR 1.05–1(g), 6.04–1, 6.04–6, 160.5; 49 Seventeen Coast Guard District, the to the NPRM. Due to the latest CFR 1.46. Coast Guard Captain of the Port, information received from the Alaska
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Aerospace Development Corporation, hours of one day, and because general Authority: 33 U.S.C. 1231; 50 U.S.C. 191; the launch window was moved forward permission to enter the safety zone will 33 CFR 1.05–1(g), 6.401–1,6.04–6, and 160.5; four days from September 15, 1999, to be given during non-hazardous times, 49 CFR 1.46. a new start date of September 11, 1999. the impact of this rule on commercial Based upon the trajectory information and recreational traffic should be 2. Add temporary § 165.T17–012 to received after the NPRM was published, minimal. The Coast Guard believes read as follows: the size of the safety zone has been there will be minimal impact to small § 165.T17±012 Alaska Aerospace expanded to provide a greater safety entities. Therefore, the Coast Guard Development Corporation, Narrow Cape, buffer in the event that the launch is certifies under 5 U.S.C. 605(b) that this Kodiak Island safety zones. aborted shortly after take-off. The safety rule will not have a significant zone includes an area approximately economic impact on a substantial (a) Description. This safety zone 133 square nautical miles in the Gulf of number of small entities. includes an area approximately 133 Alaska, southeast of Narrow Cape, square nautical miles in the Gulf of Kodiak Island, Alaska. Specifically, the Assistance for Small Entities Alaska, southeast of Narrow Cape, zone includes the waters of the Gulf of In accordance with section 213(a) of Kodiak Island, Alaska. Specifically, the Alaska that are within the area by a line the Small Business Regulatory zone includes the waters of the Gulf of drawn from a point located at 57°30.5′ Enforcement Fairness Act of 1996 (Pub. Alaska that are within the area bounded North, 152°23.5′ West, thence southeast L. 104–121), the Coast Guard offered to by a line drawn from a point located at to a point located at 57°22.0′ North, assist small entities in understanding 57° 30.5′ North, 152° 23.5′ West, thence ° ′ 151 52.5 West, thence southwest to a the rule so that they could better southeast to a point located at 57° 22.0′ ° ′ point located at 57 15.0 North, evaluate its effects on them and North, 151° 52.5′ West, thence 152°00.0′ West, and thence northwest to participate in the rulemaking process. ° ′ ° ′ southwest to a point located at 57 15.0 a point located at 57 25.0 North, No comments or requests for assistance West, and thence northwest to a point 152°29.5′ West, and thence northeast to were received by the point of contact located at 57° 25.0′ North, 152° 29.5′ the point located at 57°30.5′ North, listed in the NPRM. ° ′ West, and thence northeast to the point 152 23.5 West. All coordinates ° ′ ° ′ reference Datum: NAD 1983. Collection of Information located at 57 30.5 North, 152 23.5 West. All coordinates reference Datum: This safety zone is necessary to This rule contains no information NAD 1983. protect spectators and transiting vessels collection requirements under the from the potential hazards associated Paperwork Reduction Act (44 U.S.C. (b) Effective dates: This section is with the launch of the Alaskan 3501 et seq.). effective from 6 a.m. on September 11, Aerospace rocket. The safety zone 1999, to 10 p.m. on November 15, 1999. becomes effective at 6 a.m. on Federalism (c) Regulations. September 11, 1999, and terminates at The Coast Guard has analyzed this 10 p.m. on November 15, 1999. rule under the principles and criteria (1) The Captain of the Port and the Duty Officer at Marine Safety Office, Regulatory Evaluation contained in Executive Order 12612 and has determined that this rule does not Anchorage, Alaska can be contacted at This rule is not a significant have sufficient federalism implications telephone number (907) 271–6700 or on regulatory action under section 3(f) of to warrant the preparation of a VHF marine channel 16. Executive Order 12866 and does not Federalism Assessment. (2) Captain of the Port may authorize require an assessment of potential cost and designate any Coast Guard and benefits under section 6(a)(3) of that Environment commissioned, warrant, or petty officer order. It has not been reviewed by the The Coast Guard considered the Office of Management and Budget under to act on his behalf in enforcing the environmental impact of this rule and safety zone. that order. It is not significant under the concluded that, under Figure 2–1, regulatory policies and procedures of paragraph 34(g) of Commandant (3) The general regulations governing the Department of Transportation (DOT) Instruction M16475.1C, this rule is safety zones contained in Title 33 Code (44 FR 11040; February 26, 1979). The categorically excluded from further of Federal Regulations, part 165.23 Coast Guard expects the economic environmental documentation. The apply. No person or vessel may enter or impact of this rule to be so minimal that justification for this categorical remain in this safety zone, with the a full Regulatory Evaluation under exclusion is that this rule is to establish exception of attending vessels, without paragraph 10(e) of the regulatory a navigation safety zone. A ‘‘Categorical first obtaining permission from the policies and procedures of DOT is Exclusion Determination’’ is available in Captain of the Port, or his on scene unnecessary. the docket for inspection or copying representative. The Captain of the Port, Small Entities where indicated under ADDRESSES. Western Alaska, or his on scene Under the Regulatory Flexibility Act List of Subjects in 33 CFR Part 165 representative may be contacted onboard the U.S. Coast Guard cutter in (5 U.S.C. 601 et seq.), the Coast Guard Harbors, Marine safety, Navigation considers whether this rule would have the vicinity of Narrow Cape via VHF (water), Reporting and record keeping marine channel 16. significant economic impacts on a requirements, Security measures, substantial number of small entities. Vessels, Waterways. Dated: August 30, 1999. ‘‘Small entities’’ include small W.J. Hutmacher, businesses, not-for-profit organizations For the reasons set out in the preamble, the Coast Guard amends 33 Captain, U.S. Coast Guard, Captain of the that are independently owned and Port, Western Alaska. operated and are not dominant in their CFR Part 165 as follows: [FR Doc. 99–23714 Filed 9–10–99; 8:45 am] fields, and governmental jurisdictions PART 165Ð[AMENDED] with populations less than 50,000. BILLING CODE 4910±15±M Because the hazardous condition is 1. The authority citation for Part 165 expected to last for approximately four reads as follows:
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ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: action from Executive Order (E.O.) AGENCY On March 17, 1997, and May 8, 1997, 12866, entitled ‘‘Regulatory Planning the TDEC submitted revisions to the and Review.’’ 40 CFR Part 52 Tennessee SIP incorporating revisions B. Executive Order 12875 to Chapter 1200–3–19 Emission Under Executive Order 12875, EPA [TN 190±9930a; TN 196±9931a; FRL±6433± Standards and Monitoring Requirements 4] may not issue a regulation that is not for Particulate and Sulfur Dioxide required by statute and that creates a Approval and Promulgation of Nonattainment. A public hearing for mandate upon a State, local or tribal Implementation Plans Tennessee: these revisions was held on January 16, government, unless the Federal Approval of Revisions to the 1997, and the revisions became State government provides the funds Tennessee State Implementation Plan effective on November 30, 1996, and necessary to pay the direct compliance April 16, 1997. The revisions are costs incurred by those governments, or AGENCY: Environmental Protection described below: EPA consults with those governments. If Agency (EPA). Chapter 1200–3–19–.19 Sulfur EPA complies by consulting, Executive ACTION: Direct final rule. Dioxide Regulations for the Copper Order 12875 requires EPA to provide to Basin Additional Control Area. the Office of Management and Budget a This rule is being revised to remove SUMMARY: On March 17, 1997, and May description of the extent of EPA’s prior 8, 1997, the State of Tennessee, through references to sources that have ceased consultation with representatives of the Tennessee Department of operation and are being physically affected State, local and tribal Environment and Conservation (TDEC), removed. governments, the nature of their Chapter 1200–3–19–.14 Sulfur submitted revisions to the Tennessee concerns, copies of any written Dioxide Emission Regulations for the State Implementation Plan (SIP). The communications from the governments, New Johnsonville Additional Control revisions pertain to Sulfur Dioxide and a statement supporting the need to Emission Regulations for the New Area. Paragraph (1)(b)2 is being amended by issue the regulation. In addition, Johnsonville and Copper Basin Executive Order 12875 requires EPA to Additional Control Areas. EPA is correcting a rule cite which reads 1200– 3–14–.02(1)(e) to read 1200–3–14– develop an effective process permitting granting final approval to these elected officials and other 02(1)(d). This corrects a typographical revisions. representatives of State, local and tribal error. DATES: This direct final rule is effective governments ‘‘to provide meaningful November 12, 1999 without further Final Action and timely input in the development of notice, unless EPA receives adverse EPA is approving the aforementioned regulatory proposals containing comment by October 13, 1999. If changes to the SIP because they are significant unfunded mandates.’’ Today’s rule does not create a adverse comment is received, EPA will consistent with the Clean Air Act and mandate on State, local or tribal publish a timely withdrawal of the EPA requirements. direct final rule in the Federal Register The EPA is publishing this rule governments. The rule does not impose and inform the public that the rule will without prior proposal because the any enforceable duties on these entities. not take effect. Agency views this as a noncontroversial C. Executive Order 13084 ADDRESSES: Written comments should submittal and anticipates no adverse Under Executive Order 13084, EPA be provided to Scott Martin, comments. However, in the proposed may not issue a regulation that is not Environmental Protection Agency, rules section of this Federal Register required by statute, that significantly or Region 4 Air Planning Branch, 61 publication, EPA is publishing a uniquely affects the communities of Forsyth Street, SW, Atlanta, Georgia separate document that will serve as the Indian tribal governments, and that 30303–3104. proposal to approve the SIP revision imposes substantial direct compliance Copies of the documents relative to should adverse comments be filed. This costs on those communities, unless the this action are available for public rule will be effective November 12, 1999 Federal government provides the funds inspection during normal business without further notice unless the necessary to pay the direct compliance hours at the following locations. The Agency receives adverse comments by costs incurred by the tribal interested persons wanting to examine October 13, 1999. governments, or EPA consults with these documents should make an If the EPA receives such comments, those governments. If EPA complies by appointment with the appropriate office then EPA will publish a document consulting, Executive Order 13084 at least 24 hours before the visiting day. withdrawing the final rule and requires EPA to provide to the Office of Environmental Protection Agency, informing the public that the rule will Management and Budget, in a separately Region 4 Air Planning Branch, 61 not take effect. All public comments identified section of the preamble to the Forsyth Street, SW, Atlanta, Georgia received will then be addressed in a rule, a description of the extent of EPA’s 30303–3104. subsequent final rule based on the prior consultation with representatives Division of Air Pollution Control, proposed rule. The EPA will not of affected tribal governments, a Tennessee Department of Environment institute a second comment period. summary of the nature of their concerns, and Conservation, L & C Annex, 9th Parties interested in commenting should and a statement supporting the need to Floor, 401 Church Street, Nashville, do so at this time. If no such comments issue the regulation. In addition, Tennessee 37243–1531. are received, the public is advised that Executive Order 13084 requires EPA to FOR FURTHER INFORMATION CONTACT: this rule will be effective on November develop an effective process permitting Scott M. Martin, Regulatory Planning 12, 1999 and no further action will be elected officials and other Section, Air Planning Branch, Air, taken on the proposed rule. representatives of Indian tribal Pesticides & Toxics Management Administrative Requirements governments ‘‘to provide meaningful Division, Region 4 Environmental and timely input in the development of Protection Agency, 61 Forsyth Street, A. Executive Order 12866 regulatory policies on matters that SW, Atlanta, Georgia 30303–3104. The The Office of Management and Budget significantly or uniquely affect their telephone number is (404)–562–9036. (OMB) has exempted this regulatory communities.’’
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Today’s rule does not significantly or economic reasonableness of state action. ‘‘major’’ rule as defined by 5 U.S.C. uniquely affect the communities of The Clean Air Act forbids EPA to base 804(2). Indian tribal governments. Accordingly, its actions concerning SIPs on such H. Petitions for Judicial Review the requirements of section 3(b) of grounds. Union Electric Co., v. U.S. Executive Order 13084 do not apply to EPA, 427 U.S. 246, 255–66 (1976); 42 Under section 307(b)(1) of the Clean this rule. U.S.C. 7410(a)(2). Air Act, petitions for judicial review of D. Executive Order 13045 F. Unfunded Mandates this action must be filed in the United States Court of Appeals for the Protection of Children from Under section 202 of the Unfunded appropriate circuit by November 12, Environmental Health Risks and Safety Mandates Reform Act of 1995 1999. Filing a petition for Risks (62 FR 19885, April 23, 1997), (‘‘Unfunded Mandates Act’’), signed reconsideration by the Administrator of applies to any rule that: (1) Is into law on March 22, 1995, EPA must this final rule does not affect the finality determined to be ‘‘economically prepare a budgetary impact statement to of this rule for the purposes of judicial significant’’ as defined under E.O. accompany any proposed or final rule review nor does it extend the time 12866, and (2) concerns an that includes a Federal mandate that within which a petition for judicial environmental health or safety risk that may result in estimated annual costs to review may be filed, and shall not EPA has reason to believe may have a State, local, or tribal governments in the postpone the effectiveness of such rule disproportionate effect on children. If aggregate; or to private sector, of $100 or action. This action may not be the regulatory action meets both criteria, million or more. Under section 205, challenged later in proceedings to the Agency must evaluate the EPA must select the most cost-effective enforce its requirements. (See section environmental health or safety effects of and least burdensome alternative that 307(b)(2).) the planned rule on children, and achieves the objectives of the rule and explain why the planned regulation is is consistent with statutory List of Subjects in 40 CFR Part 52 preferable to other potentially effective requirements. Section 203 requires EPA and reasonably feasible alternatives to establish a plan for informing and Environmental protection, Air considered by the Agency. advising any small governments that pollution control, Intergovernmental This rule is not subject to E.O. 13045 may be significantly or uniquely relations, Nitrogen dioxide, Ozone, because it does not involve decisions impacted by the rule. Reporting and recordkeeping intended to mitigate environmental EPA has determined that the approval requirements. health or safety risks. action promulgated does not include a Dated: August 13, 1999. Federal mandate that may result in E. Regulatory Flexibility Act A. Stanley Meiburg, estimated annual costs of $100 million Acting Regional Administrator, Region 4. The Regulatory Flexibility Act (RFA) or more to either State, local, or tribal Part 52 of chapter I, title 40, Code of generally requires an agency to conduct governments in the aggregate, or to the Federal Regulations, is amended as a regulatory flexibility analysis of any private sector. This Federal action rule subject to notice and comment approves pre-existing requirements follows: rulemaking requirements unless the under State or local law, and imposes PART 52Ð[AMENDED] agency certifies that the rule will not no new requirements. Accordingly, no have a significant economic impact on additional costs to State, local, or tribal 1. The authority citation for part 52 a substantial number of small entities. governments, or to the private sector, continues to read as follows: Small entities include small businesses, result from this action. small not-for-profit enterprises, and Authority: 42 U.S.C. 7401 et seq. G. Submission to Congress and the small governmental jurisdictions. This Subpart RRÐTennessee final rule will not have a significant Comptroller General impact on a substantial number of small The Congressional Review Act, 5 2. Section 52.2220(c) is amended by entities because SIP approvals under U.S.C. 801 et seq., as added by the Small revising the following State citations for section 110 and subchapter I, part D of Business Regulatory Enforcement Chapter 1200–3–19 to read as follows: the Clean Air Act do not create any new Fairness Act of 1996, generally provides requirements but simply approve that before a rule may take effect, the § 52.2220 Identification of plan. requirements that the State is already agency promulgating the rule must * * * * * imposing. Therefore, because the submit a rule report, which includes a (c) * * * Federal SIP approval does not create copy of the rule, to each House of the any new requirements, I certify that this Congress and to the Comptroller General EPA Approved Tennessee Regulations action will not have a significant of the United States. EPA will submit a * * * * * economic impact on a substantial report containing this rule and other CHAPTER 1200±3±19 EMISSION number of small entities. Moreover, due required information to the U.S. Senate, STANDARDS AND MONITORING to the nature of the Federal-State the U.S. House of Representatives, and REQUIREMENTS FOR PARTICULATE AND relationship under the Clean Air Act, the Comptroller General of the United SULFUR DIOXIDE NONATTAINMENT preparation of flexibility analysis would States prior to publication of the rule in AREAS constitute Federal inquiry into the the Federal Register. This rule is not a * * * * *
EPA approval State citation Title/subject Adoption date date Comments
******* Section 1200±3±19±.14 ...... Sulfur Dioxide Emission Regulations for the New Johnsonville 04/16/97 9/13/99 Nonattainment Area.
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EPA approval State citation Title/subject Adoption date date Comments
******* Section 1200±3±19±.19 ...... Sulfur Dioxide Regulations for the Copper Basin Nonattain- 11/30/96 9/13/99 ment Area.
*******
[FR Doc. 99–23191 Filed 9–10–99; 8:45 am] Mojave Desert Air Quality Management II. Background BILLING CODE 6560±50±P District, 15428 Civic Drive, Suite 200, On May 31, 1972, the EPA approved Victorville, CA 92392 SBCAPCD Regulation VI, Rules 100– Tehama County Air Pollution Control 104, 109, 110, 120, and 130–137, ENVIRONMENTAL PROTECTION District, 1760 Walnut Street, Red AGENCY Orchard, Field or Citrus Grove Heaters, Bluff, CA 96080 for incorporation into the SIP. The 40 CFR Part 52 FOR FURTHER INFORMATION CONTACT: Al SBCAPCD rescinded Regulation VI from Petersen, Rulemaking Office, (AIR–4), its rulebook prior to 1977. The recision of SBCAPCD Regulation VI was [CA 192±0161; FRL±6434±2] Air Division, U.S. Environmental Protection Agency, Region IX, 75 disapproved by EPA on September 8, Approval and Promulgation of Hawthorne Street, San Francisco, CA 1978 (43 FR 40018) as a SIP relaxation. Implementation Plans; California State 94105–3901, Telephone: (415) 744– On July 1, 1993, the SBCAPCD became Implementation Plan Revision, Mojave 1135. the Mojave Desert Air Quality Desert Air Quality Management District Management District (MDAQMD) by act SUPPLEMENTARY INFORMATION: and Tehama County Air Pollution of the California Legislature. In 1994, Control District I. Applicability MDAQMD added portions of Riverside County, the Palo Verde Valley, and AGENCY: Environmental Protection The rules being finalized for recision Blythe. The SBCAPCD rules remain in Agency (EPA). from the MDAQMD portion of the effect after July 1, 1993 until the California SIP are included in San ACTION: Final rule. MDAQMD rescinds or supersedes them. Bernardino County Air Pollution The rules being finalized for recision by SUMMARY: EPA is finalizing approval to Control District (SBCAPCD) Regulation MDAQMD were originally adopted by revisions to the California State VI, Orchard, Field or Citrus Grove SBCAPCD for the purpose of controlling Implementation Plan (SIP) which Heaters, consisting of Rule 100, particulate matter PM–10 emissions concern the recision of rules for the Definitions; Rule 101, Exceptions; Rule from orchard heaters. In the spring of Mojave Desert Air Quality Management 102, Permits Required; Rule 103, 1995, the MDAQMD conducted a survey District (MDAQMD) and Tehama Transfer; Rule 104, Standards for of affected industry to determine if Class County Air Pollution Control District Granting Permits; Rule 109, Denial of I and Class II orchard heaters were still (TCAPCD). These rules concern Application; Rule 110, Appeals; Rule in use. The survey determined that no emissions from orchard heaters and fuel 120, Fees; Rule 130, Classification of known facility within the MDAQMD burning equipment. The intended effect Orchard Heaters; Rule 131, Class I uses this antiquated technology. Wind of this action is to bring the MDAQMD Heaters Designated; Rule 132, Class II machines are currently used to protect and TCAPCD SIPs up to date in Heaters Designated; Rule 133, crops from frost. Therefore, the recision accordance with the requirements of the Identification of Heaters; Rule 134, Use of SBCAPCD Regulation VI by Clean Air Act, as amended in 1990 of Incomplete Heaters Prohibited; Rule MDAQMD does not relax the SIP (CAA or the Act). 135, Cleaning, Repairs; Rule 136, control strategy. Authority to Classify Orchard Heaters; EFFECTIVE DATE: This action is effective On July 12, 1990, EPA approved and Rule 137, Enforcement. These rules on October 13, 1999. TCAPCD Rule 4.9, Specific were previously submitted by the Contaminants, and Rule 4.14, Fuel ADDRESSES: Copies of the rules and California Air Resources Board (CARB) Burning Equipment (Operational), for EPA’s evaluation report of the rules are to EPA on February 21, 1972 and incorporation into the SIP. Rule 4.13, available for public inspection at EPA’s approved on May 31, 1972 (37 FR Fuel Burning Equipment, is submitted Region IX office during normal business 10856) for incorporation into the SIP. for recision, since Rules 4.9 and 4.14 hours. Copies of the submitted rules are These rule recisions were adopted by provide regulation of the same pollutant also available for inspection at the the MDAQMD on June 24, 1996 and emissions. Rule 4.9 regulates SOX and following locations: submitted by CARB to EPA on March 3, combustion contaminant (particulate Rulemaking Office, (AIR–4), Air 1997. matter) emissions by limiting the Division, U.S. Environmental The rule being finalized for recision respective concentrations in the gas, Protection Agency, Region IX, 75 from the TCAPCD portion of the instead of by absolute quantities of Hawthorne Street, San Francisco, CA California SIP is TCAPCD Rule 4.13, emissions. Rule 4.14 regulates NOX 94105–3901 Fuel Burning Equipment. This rule was emissions by limiting the concentration Environmental Protection Agency, Air previously submitted by CARB to EPA in the gas, instead of by absolute Docket (6102), 401 ‘‘M’’ Street, SW, on February 21, 1972 and approved on quantity of emissions. SIP-approved Washington, DC 20460 May 31, 1972 (37 FR 10856) for Rules 4.9 and 4.14 strengthen the SIP California Air Resources Board, incorporation into the SIP. This rule relative to Rule 4.13, except for large Stationary Source Division, Rule recision was adopted by the TCAPCD on fuel burning equipment with a capacity Evaluation Section, 2020 ‘‘L’’ Street, September 10, 1985 and submitted by in excess of about 500 million British Sacramento, CA 95812 CARB to EPA on February 10, 1986. Thermal Units per hour. The TCAPCD
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.146 pfrm08 PsN: 13SER1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49399 does not have larger capacity sources; IV. EPA Evaluation and Final Action C. Executive Order 13045 therefore, the recision of TCAPCD rule Protection of Children from 4.13 does not relax the SIP control In determining the approvability of a PM–10 rule, EPA must evaluate the rule Environmental Health Risks and Safety strategy. Risks (62 FR 19885, April 23, 1997), In response to section 110(a) and Part for consistency with the requirements of the CAA and EPA regulations, as found applies to any rule that: (1) is D of the Act, the State of California determined to be ‘‘economically submitted many PM–10 rules for in section 110 and part D of the CAA and 40 CFR part 51 (Requirements for significant’’ as defined under E.O. incorporation into the California SIP, 12866, and (2) concerns an including the rule recisions being acted Preparation, Adoption, and Submittal of Implementation Plans). EPA must also environmental health or safety risk that on in this document. This document EPA has reason to believe may have a addresses EPA’s final action to approve ensure that rules strengthen the SIP or maintain the SIP’s control strategy. disproportionate effect on children. If the recision of SBCAPCD Regulation VI, the regulatory action meets both criteria, which includes Rules 100–104, 109, EPA has evaluated the submitted rule the Agency must evaluate the 110, 120, and 130–137, from the SIP. recisions and has determined that they environmental health or safety effects of The recision was adopted June 24, 1996 are consistent with the CAA, EPA the planned rule on children, and by MDAQMD. This submittal was found regulations, and EPA policy. Therefore, explain why the planned regulation is to be complete on August 12, 1997, the recision of SBCAPCD Regulation VI, preferable to other potentially effective pursuant to EPA’s completeness criteria Rules 100–104, 109, 110, 120, and 130– and reasonably feasible alternatives that are set forth in 40 CFR part 51, 137 and TCAPCD Rule 4.13 are 1 considered by the Agency. This rule is appendix V. approved under section 110(k)3 of the not subject to E.O. 13045 because it is This document also addresses EPA’s CAA as meeting the requirements of does not involve decisions intended to final action to approve the recision of section 110(a) and part D. mitigate environmental health or safety TCAPCD Rule 4.13 from the SIP. The risks. recision was adopted by TCAPCD V. Administrative Requirements September 10, 1985. The following are A. Executive Order 12866 D. Executive Order 13084 EPA’s response to public comments and Under Executive Order 13084, evaluation and final action for these The Office of Management and Budget Consultation and Coordination with rules. (OMB) has exempted this regulatory Indian Tribal Governments, EPA may action from Executive Order (E.O.) III. Response to Public Comments not issue a regulation that is not 12866, Regulatory Planning and Review. required by statute, that significantly or EPA proposed this action and B. Executive Order 12875 uniquely affects the communities of announced a 30-day public comment Indian tribal governments, and that period on May 13, 1999 (64 FR 25822). Under Executive Order 12875, imposes substantial direct compliance On the same day, EPA published a Enhancing the Intergovernmental costs on those communities, unless the direct final approval of the proposed Partnership, EPA may not issue a Federal government provides the funds action. EPA received one comment regulation that is not required by statute necessary to pay the direct compliance letter on the proposed rule from Eldon and that creates a mandate upon a State, costs incurred by the tribal Heaston, MDAQMD. As a result, EPA local or tribal government, unless the governments, or EPA consults with withdrew the direct final approval on Federal government provides the funds those governments. If EPA complies by July 12, 1999 (64 FR 37406). The necessary to pay the direct compliance consulting, Executive Order 13084 comment has been evaluated by EPA costs incurred by those governments, or requires EPA to provide to the Office of and a summary of the comment and EPA consults with those governments. If Management and Budget, in a separately EPA’s response is set forth below. EPA complies by consulting, Executive identified section of the preamble to the Comment: Mr. Heaston commented Order 12875 requires EPA to provide to rule, a description of the extent of EPA’s that it is not clear that the EPA recision the Office of Management and Budget a prior consultation with representatives action deleted [San Bernardino County description of the extent of EPA’s prior of affected tribal governments, a APCD] Regulation VI from the SIP and consultation with representatives of summary of the nature of their concerns, corrected the previous disapproval of affected State, local and tribal and a statement supporting the need to the recision in 40 CFR governments, the nature of their issue the regulation. In addition, 52.220(c)(39)(ii)(D) and 40 CFR concerns, copies of any written Executive Order 13084 requires EPA to 52.228(b)(1)(iv). communications from the governments, develop an effective process permitting Response: EPA determined that the and a statement supporting the need to elected officials and other original submittal and approval dates of issue the regulation. In addition, representatives of Indian tribal San Bernardino County APCD Executive Order 12875 requires EPA to governments ‘‘to provide meaningful Regulation VI were incorrect in EPA develop an effective process permitting and timely input in the development of records, therefore the incorporation by elected officials and other regulatory policies on matters that reference into the CFR was incorrect. representatives of State, local and tribal significantly or uniquely affect their This final action corrects the original governments ‘‘to provide meaningful communities.’’ Today’s rule does not submittal and approval dates, corrects and timely input in the development of significantly or uniquely affect the the incorporation by reference to 40 CFR regulatory proposals containing communities of Indian tribal 52.220(b)(3)(ii), and deletes the previous significant unfunded mandates.’’ governments. Accordingly, the disapproval in 40 CFR Today’s rule does not create a mandate requirements of section 3(b) of E.O. 52.220(c)(39)(ii)(D) and in 40 CFR on State, local or tribal governments. 13084 do not apply to this rule. 52.228(b)(1)(iv). The rule does not impose any enforceable duties on these entities. E. Regulatory Flexibility Act 1 EPA adopted the completeness criteria on February 16, 1990 (55 FR 5830) and, pursuant to Accordingly, the requirements of The Regulatory Flexibility Act (RFA) section 110(k)(1)(A) of the CAA, revised the criteria section 1(a) of E.O. 12875 do not apply generally requires an agency to conduct on August 26, 1991 (56 FR 42216). to this rule. a regulatory flexibility analysis of any
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This agency promulgating the rule must (4) San Bernardino County APCD. final rule will not have a significant submit a rule report, which includes a (i) Previously approved on May 31, impact on a substantial number of small copy of the rule, to each House of the 1972 and now deleted without entities because SIP approvals under Congress and to the Comptroller General replacement Regulation VI, Rules 100 to section 110 and subchapter I, part D of of the United States. EPA will submit a 104, 109, 110, 120, and 130 to 137. the Clean Air Act do not create any new report containing this rule and other * * * * * requirements but simply approve required information to the U.S. Senate, 3. Section 52.228 is amended by requirements that the State is already the U.S. House of Representatives, and removing paragraph (b)(1)(iv). imposing. Therefore, because the the Comptroller General of the United [FR Doc. 99–23588 Filed 9–10–99; 8:45 am] Federal SIP approval does not create States prior to publication of the rule in BILLING CODE 6560±50±P any new requirements, I certify that this the Federal Register. This rule is not a action will not have a significant ‘‘major’’ rule as defined by 5 U.S.C. economic impact on a substantial 804(2). ENVIRONMENTAL PROTECTION number of small entities. Moreover, due H. Petitions for Judicial Review AGENCY to the nature of the Federal-State Under section 307(b)(1) of the Clean 40 CFR Part 52 relationship under the Clean Air Act, Air Act, petitions for judicial review of preparation of flexibility analysis would this action must be filed in the United [IL193±1a; FRL±6435±6] constitute Federal inquiry into the States Court of Appeals for the Approval and Promulgation of economic reasonableness of state action. appropriate circuit by November 12, Implementation Plan; Illinois The Clean Air Act forbids EPA to base 1999. Filing a petition for its actions concerning SIPs on such reconsideration by the Administrator of AGENCY: Environmental Protection grounds. Union Electric Co., v. U.S. this final rule does not affect the finality Agency (EPA). EPA, 427 U.S. 246, 255–66 (1976); 42 of this rule for the purposes of judicial ACTION: Direct final rule. U.S.C. 7410(a)(2). review nor does it extend the time within which a petition for judicial SUMMARY: On July 9, 1999, the State of F. Unfunded Mandates review may be filed, and shall not Illinois submitted a site-specific State Under section 202 of the Unfunded postpone the effectiveness of such rule Implementation Plan (SIP) revision Mandates Reform Act of 1995 or action. This action may not be revising Volatile Organic Compound (‘‘Unfunded Mandates Act’’), signed challenged later in proceedings to (VOC) Reasonably Available Control enforce its requirements. (See section into law on March 22, 1995, EPA must Technology (RACT) requirements for 307(b)(2).) Sun Chemical Corporation (Sun) in prepare a budgetary impact statement to Northlake, Illinois. The SIP revision accompany any proposed or final rule Note: Incorporation by reference of the exempts 17 resin storage tanks from that includes a Federal mandate that State Implementation Plan for the State of California was approved by the Director of bottom or submerged pipe fill may result in estimated annual costs to the Federal Register on July 1, 1982. requirements, subject to certain State, local, or tribal governments in the List of Subjects in 40 CFR Part 52 conditions. This rulemaking action aggregate; or to private sector, of $100 approves, using the direct final process, million or more. Under section 205, Environmental protection, Air the Illinois SIP revision request. EPA must select the most cost-effective pollution control, Incorporation by DATES: This rule is effective on and least burdensome alternative that reference, Intergovernmental relations, November 12, 1999, unless EPA receives achieves the objectives of the rule and Reporting and recordkeeping adverse written comments by October is consistent with statutory requirements, Particulate matter. 13, 1999. If adverse comment is requirements. Section 203 requires EPA Dated: August 26, 1999. received, EPA will publish a timely to establish a plan for informing and David P. Howekamp, withdrawal of the rule in the Federal advising any small governments that Acting Regional Administrator, Region IX. Register and inform the public that the may be significantly or uniquely rule will not take effect. impacted by the rule. Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as ADDRESSES: Written comments should EPA has determined that the approval follows: be sent to: J. Elmer Bortzer, Chief, action promulgated does not include a Regulation Development Section, Air Federal mandate that may result in PART 52Ð[AMENDED] Programs Branch (AR–18J), U.S. estimated annual costs of $100 million Environmental Protection Agency, 77 or more to either State, local, or tribal 1. The authority citation for Part 52 continues to read as follows: West Jackson Boulevard, Chicago, governments in the aggregate, or to the Illinois 60604. Copies of the revision private sector. This Federal action Authority: 42 U.S.C. 7401 et seq. request for this rulemaking action are approves pre-existing requirements Subpart FÐCalifornia available for inspection at the following under State or local law, and imposes address: U.S. Environmental Protection no new requirements. Accordingly, no 2. Section 52.220 is amended by Agency, Region 5, Air and Radiation additional costs to State, local, or tribal removing paragraph (c)(39)(ii)(D) and by Division, 77 West Jackson Boulevard, governments, or to the private sector, adding paragraphs (b)(3)(ii) and (b)(4) to Chicago, Illinois 60604. (It is result from this action. read as follows: recommended that you telephone Mark
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J. Palermo at (312) 886–6082 before III. What Were Sun’s Previous SIP installed in 1962, before emission visiting the Region 5 Office). Requirements? control equipment on such tanks was contemplated. The tanks involved are in FOR FURTHER INFORMATION CONTACT: Section 182(b)(2) of the Act requires States to adopt RACT rules covering close proximity to each other, with Mark J. Palermo, Environmental some only a few feet apart, which Sun Protection Specialist, at (312) 886–6082. ‘‘major sources’’ of VOC for all areas classified moderate nonattainment for contends makes installing control SUPPLEMENTARY INFORMATION: ozone and above.2 The Chicago ozone equipment difficult and costly. Throughout this document wherever nonattainment area (Cook, DuPage, Additionally, the substances stored in ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are used we mean Kane, Lake, McHenry, and Will the tanks are thick and can not be EPA. Counties and Aux Sable and Goose Lake pumped at normal temperatures. Townships in Grundy County and Because of this, Sun would have to Table of Contents Oswego Township in Kendall County) is install bottom fill rather than submerged I. What is EPA approving in this rule? classified as ‘‘severe’’ nonattainment for fill pipes, since the raw materials would II. Who is affected by this SIP revision? ozone, and is subject to the Act’s RACT clog a submerged fill pipe and require III. What were Sun’s previous SIP requirement. Under section 182(d) of frequent cleaning. Sun maintains that requirements? the Act, sources located in severe ozone installing bottom fill pipes on these IV. Why is Sun unable to meet the previous nonattainment areas are considered tanks would be more difficult and SIP requirements? ‘‘major sources’’ if they have the expensive than submerged pipe V. What are the changes to Sun’s SIP potential to emit 25 tons per year or installation because they require fully requirements? more of VOC. Sun’s Northlake facility cleaning out the tanks and cutting into VI. What is the procedural history of this SIP the tanks. revision? has the potential to emit more than 25 tons of VOC per year, and, The Illinois Environmental Protection VII. What is the justification for approving Agency (IEPA) estimates that only this SIP revision? consequently, is subject to RACT requirements. 0.0203 tons per year of VOC is emitted VIII. Final rulemaking action. from the 17 tanks at issue. The low VOC IX. Administrative Requirements. On September 9, 1994, we approved, A. Executive Order 12866 as a revision to the Illinois SIP, several emissions is due to the fact that liquids B. Executive Order 12875 rules under 35 Ill. Adm. Code Parts 211 stored in the tanks have a vapor C. Executive Order 13045 and 218 pertaining to VOC RACT for the pressure significantly less than 0.5 D. Executive Order 13084 Chicago severe ozone nonattainment Pounds Per Square Inch Absolute (psia), E. Regulatory Flexibility Act area (59 FR 46562). The Illinois rules and most of the materials stored in the F. Unfunded Mandates replaced the Chicago area Federal tanks have vapor pressures less than G. Submission to Congress and the Implementation Plan (FIP), and the 0.005 psia. Materials with a psia this Comptroller General rules are generally patterned after the low have low volatility, and hence are H. National Technology Transfer and FIP’s RACT requirements. not subject to rapid vaporization and Advancement Act easy escape of vapors to the surrounding I. Petitions for Judicial Review Included in part 218 is ‘‘Subpart AA: Paint and Ink Manufacturing.’’ Sun air. I. What Is EPA Approving in This Rule? operates resin storage tanks which, with The IEPA cost figures for installing the adoption of subpart AA, became bottom fill pipes on the 17 tanks is We are approving, through the direct subject to the rule. Particularly, section approximately $285,960 to $298,510. final process, a July 9, 1999, SIP 218.626(b), which is included under The IEPA estimates the cost per ton of revision request for the Sun facility in subpart AA, requires paint and ink VOC emissions reduced by complying Northlake, Illinois. Sun is subject to manufacturers to equip their stationary with section 218.626(b) is $1,452,338.31 VOC RACT requirements under section Volatile Organic Liquid (VOL) storage per ton of VOC reduced. 182(b)(2) of the Clean Air Act (Act).1 containers with a submerged fill pipe or V. What Are the Changes to Sun’s SIP The SIP revision changes RACT as it bottom fill pipe. Fill pipes are the Requirements? applies to Sun by exempting 17 resin conduits through which liquids enter On May 20, 1999, the Illinois storage tanks from bottom or submerged the tanks. Containers with a capacity pipe fill requirements, subject to certain less than or equal to 946 liters (250 Pollution Control Board (IPCB) adopted conditions. gallons) are exempt from the Adjusted Standard 99–4, which requirements. The intention behind the provides that section 218.626(b) shall II. Who Is Affected by This SIP not apply to the 17 storage tanks at Revision? fill pipe requirement is to reduce VOC emissions from tanks by preventing Sun’s Northlake, Illinois facility. These This SIP revision only affects VOC splashing of volatile liquids as tanks are tanks are identified as tanks no. 26, 27, control requirements at Sun’s facility being filled. 35, 36, 37, 42, 43, 44, 47, 48, 49, 53, 54, located in Northlake, Illinois. Sun’s 55, 59, 60, and 67 in Sun’s petition for IV. Why Is Sun Unable To Meet The adjusted standard, and in the IEPA’s manufacturing operations consist Previous SIP Requirements? primarily of batch processes involving January 29, 1999, response. The adjusted standard will remain in the mixing or blending of resin, Sun has 17 resin storage tanks which effect so long as (a) no odor nuisance solvents, pigments, and varnishes to have been subject to subpart AA exists at the Sun’s Northlake facility, make finished inks and bases. submerged or bottom fill pipe requirements, but still have overhead and (b) the vapor pressures of materials stored in the 17 identified tanks remain 1 It should be noted that under Illinois’ fill pipe systems. The tanks were regulations, the State uses the term ‘‘Volatile less than 0.5 psia at 70 degrees Organic Material (VOM)’’ rather than VOC, in 2 A definition of RACT is cited in a General Fahrenheit. Under the adjusted referring to volatile organic emissions. The State’s Preamble-Supplement published at 44 FR 53761 standard, Sun must keep all records definition of VOM is equivalent to EPA’s definition (September 17, 1979). RACT is defined as the necessary to establish that the vapor of VOC, and are interchan geable when discussing lowest emission limitation that a particular source volatile organic emissions. For consistency with the is capable of meeting by the application of control pressures of the materials stored in the Act and with EPA policy, we are using the term technology that is reasonably available, considering 17 identified tanks are less than 0.5 psia VOC in this rulemaking. technological and economic feasibility. at 70 degrees Fahrenheit. Each record
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.176 pfrm08 PsN: 13SER1 49402 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations shall be retained at the facility for a bottom fill or submerged fill pipe description of the extent of EPA’s prior period of no less than 3 years. controls for Sun’s tanks.3 We are not consultation with representatives of This adjusted standard exempts Sun aware of any paint or ink manufacturing affected state, local, and tribal only from the requirements of section facilities with storage tanks having governments, the nature of their 218.626(b) for the 17 storage tanks listed similar design and holding similar concerns, copies of written in the adjusted standard, and not from materials as the tanks operated by Sun, communications from the governments, any other requirements under part 218. which have replaced overhead fill pipes and a statement supporting the need to Sun must continue to comply with all with bottom or submerged fill pipes in issue the regulation. other applicable regulations of part 218, a manner that is less costly than what In addition, E.O. 12875 requires EPA and any existing or new storage tanks IEPA expects such replacement to cost to develop an effective process not explicitly listed in the adjusted Sun. Given that the vapor pressure permitting elected officials and other standard order are not exempted by the limitation will prevent emissions to representatives of state, local, and tribal adjusted standard from section significantly increase from the current governments ‘‘to provide meaningful 218.626(b). Sun is subject to the test low emission levels, we find that the and timely input in the development of methods of part 218, including section adjusted standard constitutes RACT for regulatory proposals containing 218.109 ‘‘Vapor Pressure of Volatile Sun’s 17 tanks. significant unfunded mandates.’’ Organic Liquids,’’ which will ensure Today’s rule does not create a mandate that the vapor pressure of VOL loaded VIII. Final Rulemaking Action on state, local or tribal governments. into the 17 tanks are less than 0.5 psia In this rulemaking action, we are The rule does not impose any at 70 degrees Fahrenheit. Section approving the July 9, 1999, Illinois SIP enforceable duties on these entities. 218.109 was incorporated into the SIP revision submittal of an adjusted Accordingly, the requirements of on September 9, 1994 (59 FR 46562). standard for Sun’s Northlake facility, section 1(a) of E.O. 12875 do not apply to this rule. VI. What Is the Procedural History of which was granted by the IPCB on May This SIP Revision? 20, 1999. We are publishing this action C. Executive Order 13045 without prior proposal because we view On October 22, 1998, Sun filed a this as a noncontroversial revision and Protection of Children from petition for an adjusted standard with anticipate no adverse comments. Environmental Health Risks and Safety the IPCB. The IPCB held a public However, in a separate document in this Risks (62 FR 19885, April 23, 1997), hearing on the adjusted standard on Federal Register publication, we are applies to any rule that: (1) Is April 15, 1999, in Chicago, Illinois. On proposing to approve the SIP revision determined to be ‘‘economically May 20, 1999, the IPCB adopted a Final should adverse written comments be significant’’ as defined under E.O. Opinion and Order granting the filed. This action will be effective 12866, and (2) concerns an adjusted standard. On July 9, 1999, without further notice unless we receive environmental health or safety risk that IEPA submitted the adjusted standard as relevant adverse written comment by EPA has reason to believe may have a a SIP revision request to EPA. On July October 13, 1999. Should we receive disproportionate effect on children. If 28, 1999, we sent a letter to IEPA which such comments, we will publish a final the regulatory action meets both criteria, deemed the SIP revision submittal rule informing the public that this the Agency must evaluate the administratively complete. action will not take effect. Any parties environmental health or safety effects of the planned rule on children, and VII. What Is the Justification for interested in commenting on this action explain why the planned regulation is Approving This SIP Revision? should do so at this time. If no such comments are received, the public is preferable to other potentially effective IEPA indicates that Sun based its and reasonably feasible alternatives adjusted standard petition on section advised that this action will be effective on November 12, 1999. considered by the Agency. 218.122 of the Chicago area RACT rules. This rule is not subject to E.O. 13045 This section contains the State’s general IX. Administrative Requirements because it does not involve decisions VOL storage tank loading requirements. intended to mitigate environmental A. Executive Order 12866 This rule requires that stationary tanks health or safety risks. with a storage capacity of greater than The Office of Management and Budget 946 liters (250 gallons) must be (OMB) has exempted this regulatory D. Executive Order 13084 equipped with a permanent submerged action from Executive Order (E.O.) Under E.O. 13084, EPA may not issue load pipe or equivalent control device, 12866, entitled ‘‘Regulatory Planning a regulation that is not required by unless no odor nuisance exists and the and Review.’’ statute, that significantly affects or uniquely affects the communities of vapor pressure of the VOL loaded is less B. Executive Order 12875 than or equal to 17.24 kilopascals (2.5 Indian tribal governments, and that psia) at 294.3 degrees Kelvin (70 degrees Under E.O. 12875, EPA may not issue imposes substantial direct compliance Fahrenheit). Because of the high cost in a regulation that is not required by costs on those communities, unless the installing bottom fill tanks on the 17 statute and that creates a mandate upon Federal government provides the funds tanks, and the negligible emission a state, local, or tribal government, necessary to pay the direct compliance benefit installing such pipes would unless the Federal government provides costs incurred by the tribal achieve, IEPA believes that RACT for the funds necessary to pay the direct governments. If the mandate is the storage tanks should be the level of compliance costs incurred by those unfunded, EPA must provide to the control represented under the adjusted governments. If the mandate is Office of Management and Budget, in a standard. unfunded, EPA must provide to the separately identified section of the We agree that bottom fill or Office of Management and Budget a preamble to the rule, a description of submerged fill pipe controls for the 17 the extent of EPA’s prior consultation tanks at the Sun facility are not 3 CTGs are documents published by EPA which with representatives of affected tribal contain information on available air pollution technically and economically feasible. control techniques and provide recommendations governments, a summary of the nature Further, we have issued no Control on what the EPA considers the ‘‘presumptive norm’’ of their concerns, and a statement Techniques Guideline (CTG) justifying for RACT. supporting the need to issue the
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Filing a petition for requires EPA to develop an effective advising any small governments that reconsideration by the Administrator of process permitting elected and other may be significantly or uniquely this final rule does not affect the finality representatives of Indian tribal impacted by the rule. of this rule for the purposes of judicial governments ‘‘to provide meaningful EPA has determined that the approval review nor does it extend the time and timely input in the development of action promulgated does not include a within which a petition for judicial regulatory policies on matters that Federal mandate that may result in review may be filed, and shall not significantly or uniquely affect their estimated annual costs of $100 million postpone the effectiveness of such rule communities.’’ Today’s rule does not or more to either State, local, or tribal or action. This action may not be significantly or uniquely affect the governments in the aggregate, or to the challenged later in proceedings to communities of Indian tribal private sector. This Federal action enforce its requirements. (See section governments. Accordingly, the approves pre-existing requirements 307(b)(2).) requirements of section 3(b) of E.O. under State or local law, and imposes 13084 do not apply to this rule. no new requirements. Accordingly, no List of Subjects in 40 CFR Part 52 additional costs to State, local, or tribal E. Regulatory Flexibility Act Environmental protection, Air governments, or to the private sector, pollution control, Hydrocarbons, The Regulatory Flexibility Act (RFA) result from this action. generally requires an agency to conduct Incorporation by reference, Ozone, a regulatory flexibility analysis of any G. Submission to Congress and the Reporting and recordkeeping, Volatile rule subject to notice and comment Comptroller General organic compounds. rulemaking requirements unless the The Congressional Review Act, 5 Dated: August 30, 1999. agency certifies that the rule will not U.S.C. 801 et seq., as added by the Small Robert Springer, have a significant economic impact on Business Regulatory Enforcement Acting Regional Administrator, Region 5. a substantial number of small entities. Fairness Act of 1996, generally provides Small entities include small businesses, that before a rule may take effect, the For the reasons stated in the small not-for-profit enterprises, and agency promulgating the rule must preamble, part 52, chapter I, title 40 of small governmental jurisdictions. submit a rule report, which includes a the Code of Federal Regulations is This final rule will not have a copy of the rule, to each House of the amended as follows: significant impact on a substantial Congress and to the Comptroller General number of small entities because SIP of the United States. Section 804, PART 52Ð[AMENDED] approvals under section 110 and however, exempts from section 801 the subchapter I, part D of the Clean Air Act following types of rules: rules of 1. The authority citation for part 52 do not create any new requirements but particular applicability; rules relating to continues to read as follows: simply approve requirements that the agency management or personnel; and Authority: 42 U.S.C. 7401 et seq. State is already imposing. Therefore, rules of agency organization, procedure, because the Federal SIP approval does or practice that do not substantially Subpart OÐIllinois not create any new requirements, I affect the rights or obligations of non- certify that this action will not have a agency parties. 5 U.S.C. 804(3). EPA is 2. Section 52.720 is amended by significant economic impact on a not required to submit a rule report adding paragraph (c)(153) to read as substantial number of small entities. regarding this rulemaking action under follows: Moreover, due to the nature of the section 801 because this is a rule of § 52.720 Identification of plan. Federal-State relationship under the particular applicability. Clean Air Act, preparation of flexibility * * * * * H. National Technology Transfer and analysis would constitute Federal (c) * * * inquiry into the economic Advancement Act (153) On July 9, 1999, the State of reasonableness of state action. The Section 12 of the National Technology Illinois submitted a site-specific State Clean Air Act forbids EPA to base its Transfer and Advancement Act Implementation Plan (SIP) revision actions concerning SIPs on such (NTTAA) of 1995 requires Federal affecting Volatile Organic Material grounds. Union Electric Co., v. U.S. agencies to evaluate existing technical control requirements at Sun Chemical EPA, 427 U.S. 246, 255–66 (1976); 42 standards when developing a new Corporation (Sun) in Northlake, Illinois. U.S.C. 7410(a)(2). regulation. To comply with NTTAA, The SIP revision changes requirements EPA must consider and use ‘‘voluntary F. Unfunded Mandates for 17 resin storage tanks operated by consensus standards’’ (VCS) if available Sun. Specifically, the SIP revision Under section 202 of the Unfunded and applicable when developing exempts the 17 tanks from the bottom or Mandates Reform Act of 1995 programs and policies unless doing so submerged fill pipe requirements, (‘‘Unfunded Mandates Act’’), signed would be inconsistent with applicable provided that no odor nuisance exists at into law on March 22, 1995, EPA must law or otherwise impractical. prepare a budgetary impact statement to The EPA believes that VCS are the Sun Northlake facility, and that the accompany any proposed or final rule inapplicable to this action. Today’s vapor pressures of materials stored in that includes a Federal mandate that action does not require the public to the tanks remain less the 0.5 pounds per may result in estimated annual costs to perform activities conducive to the use square inch absolute at 70 degrees State, local, or tribal governments in the of VCS. Fahrenheit. aggregate; or to private sector, of $100 (i) Incorporation by reference. I. Petitions for Judicial Review million or more. Under section 205, May 20, 1999, Opinion and Order of EPA must select the most cost-effective Under section 307(b)(1) of the Clean the Illinois Pollution Control Board, AS and least burdensome alternative that Air Act, petitions for judicial review of 99–4, effective May 20, 1999. achieves the objectives of the rule and this action must be filed in the United is consistent with statutory States Court of Appeals for the [FR Doc. 99–23581 Filed 9–10–99; 8:45 am] requirements. Section 203 requires EPA appropriate circuit by November 12, BILLING CODE 6560±50±P
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ENVIRONMENTAL PROTECTION interested persons wanting to examine and Oldham Counties, Kentucky, and AGENCY these documents should make an Floyd and Clark Counties, Indiana. appointment with the appropriate office Section 182(b) of the CAA requires 40 CFR Part 52 at least 24 hours before the visiting day. that each state in which all or part of a [KY±75±1±9910a; KY±97±1±9911a; FRL± Reference file KY–97. moderate nonattainment area is located 6435±4] Air and Radiation Docket and submit, by November 15, 1992, an Information Center (Air Docket 6102), inventory of actual emissions from all Approval and Promulgation of U.S. Environmental Protection sources, as described in section Implementation Plans Agency, 401 M Street, SW, 172(c)(3) and 182(a)(1), in accordance Washington, DC 20460. with guidance provided by the Kentucky: Approval of Revisions to the Environmental Protection Agency, Administrator. This inventory is for Louisville State Implementation Plan Region 4 Air Planning Branch, 61 calendar year 1990 and is designated the AGENCY: Environmental Protection Forsyth Street, SW, Atlanta, Georgia base year inventory. The inventory Agency (EPA). 30303–3104. should include both anthropogenic and Department for Environmental biogenic sources of volatile organic ACTION: Direct final rule. Protection, Natural Resources and compounds (VOCs), nitrogen oxides SUMMARY: The EPA is approving the Air Environmental Protection Cabinet, (NOx), and carbon monoxide (CO), and Pollution Control District of Jefferson Division of Air Quality, 803 Schenkel must address actual emissions of these County portion of the State Lane, Frankfort, Kentucky 40601. pollutants in the nonattainment area Implementation Plan (SIP) submitted by Air Pollution Control District of during the peak ozone season. The the Commonwealth of Kentucky Jefferson County, 850 Barrett Avenue, inventory should include all point and through the Natural Resources and Suite 205, Louisville, Kentucky area sources, as well as all highway and Environmental Protection Cabinet on 40204. non-highway mobile sources. November 12, 1993, and amended on FOR FURTHER INFORMATION CONTACT: In addition, section 182(b)(1)(A) of the April 5, 1994, and June 30, 1997, which Scott M. Martin, Regulatory Planning CAA requires ozone nonattainment includes the 15 Percent Rate-of-Progress Section, Air Planning Branch, Air, areas classified as moderate and above Plan (15 percent plan) for the Louisville Pesticides and Toxics Management to develop plans to reduce VOC moderate ozone nonattainment area. Division, Region 4 Environmental emissions by 15 percent from the 1990 This submittal was made to meet the 15 Protection Agency, 61 Forsyth Street, base year. The plans were to be percent reduction in emissions of SW, Atlanta, Georgia 30303–3104. The submitted by November 15, 1993, and volatile organic compounds (VOCs) telephone number is 404–562–9036. the reductions were required to be requirement of section 182(b)(1)(A) of SUPPLEMENTARY INFORMATION: The achieved within six years of enactment the Clean Air Act, as amended in 1990 information presented in this preamble or November 15, 1996. The CAA also set (CAA). EPA is approving the plan, is organized as follows: limitations on the creditability of certain including the individual measures that • Background. types of reductions. Specifically, a state achieve the 15 percent reduction in • 1990 Base year emissions inventory. cannot take credit for reductions VOCs and the Jefferson County 1990 • Adjusted base year inventory. achieved by Federal Motor Vehicle Base Year Emissions Inventory. The • 1990 Rate-of-progress inventory. Control Program (FMVCP) measures inventory was submitted by Kentucky to • 15 Percent plan. promulgated prior to 1990, or for fulfill requirements of section 182(b) of • Creditable 15 percent reduction. reductions resulting from requirements the CAA. • Total expected reductions by 1996. to lower the Reid Vapor Pressure (RVP) • Target level emissions for 1996. of gasoline promulgated prior to 1990 or DATES: This direct final rule is effective • required under section 211(h) of the November 12, 1999 without further Reductions needed by 1996 to achieve 15 percent accounting for CAA, which restricts gasoline RVP. notice, unless EPA receives adverse Furthermore, the CAA does not allow comment by October 13, 1999. If growth. • Reductions required by 1996. credit for corrections to vehicle I/M adverse comment is received, EPA will • 1996 Projected emissions. Programs or corrections to Reasonably publish a timely withdrawal of the • Control strategies to meet the 15 Available Control Technology (RACT) direct final rule in the Federal Register percent reduction requirement and rules as these programs were required and inform the public that the rule will approval of supporting regulations. prior to 1990. not take effect. • Final action. 1990 Base Year Emissions Inventory ADDRESSES: All comments should be • Administrative requirements. addressed to: Scott M. Martin at the In this action, the EPA is approving EPA, Region 4 Air Planning Branch, 61 Background the 1990 base year emissions inventory Forsyth Street, SW, Atlanta, Georgia The Louisville area was classified as for the Louisville area. Detailed 30303. a multi-state moderate ozone information on the emissions Copies of the documents relative to nonattainment area on November 15, calculations can be obtained at the this action are available for public 1990, pursuant to the CAA. The Regional Office address above. The inspection during normal business Louisville nonattainment area consists following table is a summary of the base hours at the following locations. The of Jefferson County and parts of Bullit year emissions inventory.
LOUISVILLE 1990 BASE YEAR EMISSIONS INVENTORY [Tons/day]
Source type VOC NOX CO
Point ...... 83.75 147.87 10.14 Area ...... 38.69 4.5 28.04
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LOUISVILLE 1990 BASE YEAR EMISSIONS INVENTORYÐContinued [Tons/day]
Source type VOC NOX CO
Mobile ...... 92.81 40.49 541.22 Nonroad ...... 12.68 16.58 54.61 Biogenic ...... 20.9 N/A N/A
Total ...... 248.83 209.44 634.01
The EPA is approving this inventory LOUISVILLE 1990 RATE-OF-PROGRESS tons/day), the reductions from FMVCP as satisfying the requirements of section BASE YEARÐContinued and RVP (43.29 tons/day), corrections to 182(a)(1) of the CAA. [Tons/day] RACT rules (0.00 tons/day) and corrections to I/M programs (0.00 tons/ Adjusted Base Year Inventory Source type VOC day). Louisville was required to have a The adjusted base year inventory for total of 70.99 tons/day of VOC VOCs requires exclusion of emission Nonroad ...... 12.68 reductions by 1996. reductions that would occur by 1996 as Total ...... 227.93 Target Level Emissions for 1996 a result of the FMVCP and RVP regulations promulgated prior to 1990. To calculate the 1996 target emissions 15 Percent Plan The following table is a summary of the level, the total expected reductions adjusted base year inventory. Kentucky submitted a 15 percent Plan (70.99 tons/day) are subtracted from the for the Louisville nonattainment area to 1990 Rate-of-Progress base year LOUISVILLE 1990 ADJUSTED BASE EPA on November 12, 1993, with inventory (227.93 tons/day) for the YEAR INVENTORY additional information submitted on Louisville nonattainment area. This April 5, 1994, and June 30, 1997. This gives a 1996 target level emissions of [Tons/day] submittal was required in order to 156.94 tons/day. demonstrate reasonable further progress Source type VOC in attaining the National Ambient Air Reductions Needed by 1996 to Achieve 15 Percent Accounting for Growth Point ...... 83.75 Quality Standard (NAAQS) for ozone. Area ...... 38.69 This 15 percent plan is not intended to The reductions needed to achieve 15 Mobile ...... 49.52 demonstrate attainment of the ozone percent accounting for growth are Nonroad ...... 12.68 NAAQS. The CAA required Kentucky to determined by subtracting the target submit a plan by November 15, 1993, level emissions (156.94 tons/day) from Total ...... 184.64 and to attain the ozone NAAQS by 1996. the 1996 estimated emissions (199.57 In order to demonstrate progress, the tons/day) giving a total of 42.63 tons/ 1990 Rate-of-Progress Inventory Commonwealth must achieve actual day in additional reductions needed. VOC emission reductions of at least 15 The Rate-of-Progress inventory is percent during the first six years after Reductions Required by 1996 comprised of the anthropogenic enactment of the CAA. The 15 percent In order to meet the target level stationary (point and area) and total reduction must be based on a decrease mobile source emissions in the required for 1996, Louisville must from the 1990 base year emissions, reduce VOC emissions by an additional nonattainment area with all biogenic excluding emissions from other emissions removed from the base year 42.63 tons/day. The 1990 Rate-of- reduction programs and emission Progress Base Year inventory is the base inventory. The following table is a sources outside the nonattainment area. summary of the Rate-of-Progress inventory from which the 15 percent baseline inventory. Creditable 15 Percent Reduction reduction on existing sources and the The adjusted base year inventory of reduction from growth by 1996 must be LOUISVILLE 1990 RATE-OF-PROGRESS 184.64 tons/day is multiplied by 0.15 to calculated to meet requirements of the BASE YEAR calculate the creditable 15 percent CAA. [Tons/day] reduction in tons/day. Louisville needs The following is a summary of the a reduction of 27.70 tons/day to obtain reductions Louisville obtained to meet Source type VOC the creditable 15 percent reduction. this requirement. More detailed information concerning specific areas of Point ...... 83.75 Total Expected Reductions by 1996 reduction can be found in the Technical Area ...... 38.69 The total expected reductions by 1996 Support Document (TSD) located at the Mobile ...... 92.81 include the required 15 percent (27.70 Regional EPA address listed above.
SUMMARY OF VOC REDUCTIONS NEEDED
Jefferson county Required Expected Outcome
Point Sources ...... 16.37 16.78 0.41 Area Sources ...... 8.98 7.53 ¥1.45 Mobile Sources ...... 15.48 17.87 2.39 Subtotal ...... 40.83 42.18 1.35 Bullit/Oldham Counties ...... 1.79 1.20 ¥0.59
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SUMMARY OF VOC REDUCTIONS NEEDEDÐContinued
Jefferson county Required Expected Outcome
Total ...... 42.62 43.38 (1) 1 0.76 tons/day excess reductions.
1996 Projected Emissions Regulation 6.43 VOC Emission operate a banking and trading program Reduction Requirements and the sections do not meet EPA The projected emissions for 1996 have guidance. been calculated by applying the control Regulation 6.43 VOC Emission measures discussed below to the 1996 Reduction Requirements establishes Use of Unallocated Community-Held Estimated Emissions. The 1996 emissions, equipment, and operational ERCs. requirements for 16 sources. Each Projected Emissions are shown as Regulation 2.12 Emissions Trading source voluntarily agreed to the follows: (Including Banking and Bubble Rules) is requirements. The sources are as being added to the Louisville SIP to follows: Akzo Nobel Resins; Alcan 1996 PROJECTED EMISSIONS establish the procedural requirements Rolled Products Company, Louisville [Tons/day] for the use of unallocated community Plant; American Synthetic Rubber held ERCs. The ERCs used toward the Corporation; Ashland Petroleum 15 percent plan have been retired from Company, Aetna Terminal; the Carbide/ the bank and will provide a reduction Graphite Group, Inc.; Courtaulds Point ...... 70.85 of 5,129 lbs/day or 2.56 tons/day in Coatings, Plant #1; DuPont Dow Area ...... 31.66 VOC emissions. Mobile ...... 39.51 Elastomers L.L.C.; the Earthgrains Nonroad ...... 14.17 Company; Ford Motor Company; Area Source Control Measures Gateway Press, Inc.; Marathon Oil Regulation 1.16 Standards for Volatile Total ...... 156.19 Company, Louisville Terminal; Phillip Organic Compound Content of Morris Incorporated, Maple Street Plant; Architectural and Industrial Reynolds Metals Company, Plant #1; The 1996 Projected Emissions of Maintenance Coatings 156.19 tons/day are less than the 1996 Rohm and Haas Kentucky Inc.; United Target Level Emissions of 156.94 tons/ Defense Louisville Plant; Zeon This regulation is being added to day. Chemicals KY, Inc. These requirements require a 25 percent reduction in VOC reduce VOC emissions by 7,127 lbs/day content in coatings used for Control Strategies to Meet the 15 or 3.56 tons/day. Further details architectural and industrial Percent Reduction Requirement and pertaining to the requirements specific maintenance. There are two emission Approval of Supporting Regulations to each source can be obtained from the categories relevant to this area: Industrial Source Control Measures Regional EPA address listed above. architectural surface coatings and traffic markings. The total projected 1996 Regulation 1.18 Rule Effectiveness Use of Emission Reduction Credits emissions from these categories is (ERCs)—Industry Held 12,090 lbs/day. Multiplying this by 0.25 Regulation 1.18 Rule Effectiveness is The voluntary use of industry held gives a reduction of 3,022 lbs/day or being added and applies to sources ERCs is a component of Regulation 6.43 1.51 tons/day. subject to Regulation 6.43 VOC and will provide a reduction of 5,859 Regulation 6.40 Standards of Emission Reduction Requirements. lbs/day or 2.93 tons/day in VOC Performance for Gasoline Transfer to Sources must develop a rule emissions. These ERCs have been Motor Vehicles (Stage II Vapor Recovery effectiveness improvement plan and retired from Louisville’s ERC Bank. have all measures implemented by and Control) November 15, 1996. These Regulation 2.12 Emissions Trading This regulation is being added to the improvements reduce VOC emissions by (Including Banking and Bubble Rules) Louisville SIP and is applicable to 12,740 lbs/day or 6.37 tons/day. This regulation is being added to gasoline dispensing facilities dispensing 1990 Non-Compliance Sources develop Louisville’s emission trading gasoline from storage tanks to motor and banking program. The regulation is vehicle fuel tanks. This regulation There were three industrial sources applicable to any pollutant for which applies to both new and existing that were not in compliance with Louisville has adopted stationary source gasoline dispensing facilities whose existing VOC emission requirements control regulations. The application monthly throughput exceeds 10,000 during 1990. The actual emissions of procedures, creation of ERCs, the use of gallons of gasoline based upon these sources were included in the 1990 ERCs, the withdrawal of ERCs, and the calculating the average volume of emissions inventory. These sources air quality modeling requirements for gasoline dispensed per month over the subsequently implemented compliance use of particulate matter, sulfur dioxide, consecutive 12 month period preceding plans and are now in compliance with and carbon monoxide ERCs are all the effective date of this regulation these VOC emissions requirements. The established in the regulation. EPA is not (August 9, 1993). Regulation 6.40 does reductions from the actual emissions taking action on section 8 Alternate not apply to a gasoline dispensing levels down to the allowed emissions Emission Standards (Bubbles), section 9 facility of an independent small levels are included in the final 15 Transmittals to EPA, and section 10 business marketer which dispenses an percent VOC emissions reduction plan Amendments to the State average monthly throughput of less than for the industrial source categories. This Implementation Plan: Requirements and 25,000 gallons of gasoline per month. results in a reduction of 2,696 lbs/day Exemptions. Approval of these sections The application of Stage II vapor or 1.35 tons/day. is not required for the Louisville area to recovery equipment on the gasoline
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The imply any viewpoint on the question of use of reformulated gasoline has been provisions of this regulation also apply whether there are legal deficiencies in mandated for the area through the to all employers and self-employers this or any other Clean Air Act program Commonwealth’s opt-in to the program, with one or more employees who resulting from the effect of Kentucky’s an allowance was made for this routinely or regularly commute to audit privilege and immunity law. A reduction prior to calculating the Stage Jefferson County for employment or self state audit privilege and immunity law II reduction. The EPA estimate of 3.5% employment. Commuters shall have can affect only state enforcement and was used. The following provides the their vehicle’s emissions tested on an cannot have any impact on federal basis for the estimate of the emission annual basis at a Jefferson County enforcement authorities. EPA may at reduction: Vehicle Emissions Testing Center and any time invoke its authority under the 1996 Projected Emissions (no RFG)— shall comply with Regulation 8.01 Clean Air Act, including, for example, 11,299 lbs/day unless exempted. This regulation will sections 113, 167, 205, 211 or 213, to 3.5% Reduction for RFG—¥395 lbs/day result in a 4.98 tons/day reduction in enforce the requirements or prohibitions Net projected 1996 Emissions—10,904 VOC emissions. of the state plan, independently of any lbs/day state enforcement effort. In addition, × Gasoline Controls 10,904 lbs/day 0.95 = 10,358 lbs/day citizen enforcement under section 304 or 5.18 tons/day reduction. Implementation of reformulated of the Clean Air Act is likewise gasoline for onroad mobile sources Regulation 6.44 Standards of unaffected by a state audit privilege or Performance for Existing Commercial reduces VOC emissions by of 9.99 tons/ immunity law. day. Motor Vehicle and Mobile Equipment I. Administrative Requirements Refinishing Operations and Regulation Other Control Measures A. Executive Order 12866 7.79 Standards of Performance for New In an effort to gain additional Commercial Motor Vehicle and Mobile reductions, Louisville is implementing The Office of Management and Budget Equipment Refinishing Operations the following programs: Transit (1.30 (OMB) has exempted this regulatory These regulations are being added to ton/day), Rideshare (1.10 tons/day), action from Executive Order (E.O.) the Louisville SIP and are applicable to Alternate Fuel Vehicles (0.10 tons/day), 12866, entitled ‘‘Regulatory Planning commercial facilities making spot and Traffic Signal Improvements (0.40 and Review.’’ repairs, panel repairs, refinishing of tons/day) for a total reduction in VOC B. Executive Order 12875 parts and/or the refinishing of the entire emissions of 2.90 tons/day. motor vehicle or mobile equipment. Under Executive Order 12875, EPA These regulations require auto Final Action may not issue a regulation that is not refinishing shops to reduce VOC The EPA is granting final approval of required by statute and that creates a emissions by limiting solvent use, the Louisville 1990 Base Year Emissions mandate upon a State, local or tribal paints, equipment used or some Inventory and 15 percent plan because government, unless the Federal combination of these options and result they are consistent with the CAA and government provides the funds in 0.57 tons/day reduction in VOC EPA requirements. Final approval is necessary to pay the direct compliance emissions. also being granted to the regulations costs incurred by those governments, or discussed in the previous section of this EPA consults with those governments. If Regulation 6.45 Standards of document. EPA complies by consulting, Executive Performance for Existing Solid Waste Also included in this submittal were Order 12875 requires EPA to provide to Landfills revisions to Regulation 1.02 Definitions; the Office of Management and Budget a This regulation is being added to the Regulation 1.04 Performance Tests; description of the extent of EPA’s prior Louisville SIP and is applicable to Regulation 1.06 Source Self Monitoring consultation with representatives of existing solid waste landfills located in and Reporting; Regulation 1.07 affected State, local and tribal Jefferson County, Kentucky that Emissions During Shutdowns, governments, the nature of their commenced operation before or after Malfunctions, and Emergencies; concerns, copies of any written February 2, 1994. This regulation Regulation 1.08 Administrative communications from the governments, involves the control of VOC emissions Procedures; Regulation 2.02 Air and a statement supporting the need to from landfill waste disposal sites Pollution Regulation; Regulation 2.03 issue the regulation. In addition, implementing collection and Permit Requirements—Non-Title V Executive Order 12875 requires EPA to combustion of landfill gases and will Operating Permits and Construction/ develop an effective process permitting result in a 0.10 tons/day reduction in Demolition Permits; Regulation 2.07 elected officials and other VOC emissions. Public Notification; Regulation 2.08 representatives of State, local and tribal Gasoline Controls for Off-Road Mobile Emission Fees, Permit Fees, and Permit governments ‘‘to provide meaningful Sources Renewal Procedures; Regulation 5.14 and timely input in the development of Hazardous Air Pollutants; and regulatory proposals containing By adopting the use of reformulated Regulation 6.42 VOC and NOx RACT. significant unfunded mandates.’’ gasoline for non-road engines Louisville Action on these regulations will be Today’s rule does not create a will obtain a reduction of 0.17 tons/day. taken in a separate notice. mandate on State, local or tribal Mobile Source Control Measures Nothing in this action should be governments. The rule does not impose construed as making any determination any enforceable duties on these entities. Regulation 8.03 Commuter Vehicle or expressing any position regarding Testing Requirements Kentucky’s audit privilege and penalty C. Executive Order 13084 This regulation is being added to the immunity law, Kentucky—‘‘KRS Under Executive Order 13084, EPA Jefferson County SIP and is applicable 224.01–040’’, or its impact upon any may not issue a regulation that is not
VerDate 18-JUN-99 12:49 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 E:\FR\FM\A13SE0.184 pfrm08 PsN: 13SER1 49408 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations required by statute, that significantly or Small entities include small businesses, agency promulgating the rule must uniquely affects the communities of small not-for-profit enterprises, and submit a rule report, which includes a Indian tribal governments, and that small governmental jurisdictions. This copy of the rule, to each House of the imposes substantial direct compliance final rule will not have a significant Congress and to the Comptroller General costs on those communities, unless the impact on a substantial number of small of the United States. EPA will submit a Federal government provides the funds entities because SIP approvals under report containing this rule and other necessary to pay the direct compliance section 110 and subchapter I, part D of required information to the U.S. Senate, costs incurred by the tribal the Clean Air Act do not create any new the U.S. House of Representatives, and governments, or EPA consults with requirements but simply approve the Comptroller General of the United those governments. If EPA complies by requirements that the State is already States prior to publication of the rule in consulting, Executive Order 13084 imposing. Therefore, because the the Federal Register. This rule is not a requires EPA to provide to the Office of Federal SIP approval does not create ‘‘major’’ rule as defined by 5 U.S.C. Management and Budget, in a separately any new requirements, I certify that this 804(2). identified section of the preamble to the action will not have a significant rule, a description of the extent of EPA’s economic impact on a substantial H. Petitions for Judicial Review prior consultation with representatives number of small entities. Moreover, due Under section 307(b)(1) of the Clean of affected tribal governments, a to the nature of the Federal-State Air Act, petitions for judicial review of summary of the nature of their concerns, relationship under the Clean Air Act, this action must be filed in the United and a statement supporting the need to preparation of flexibility analysis would States Court of Appeals for the issue the regulation. In addition, constitute Federal inquiry into the appropriate circuit by November 12, Executive Order 13084 requires EPA to economic reasonableness of state action. 1999. Filing a petition for develop an effective process permitting The Clean Air Act forbids EPA to base reconsideration by the Administrator of elected officials and other its actions concerning SIPs on such this final rule does not affect the finality representatives of Indian tribal grounds. Union Electric Co., v. U.S. of this rule for the purposes of judicial governments ‘‘to provide meaningful EPA, 427 U.S. 246, 255–66 (1976); 42 review nor does it extend the time and timely input in the development of U.S.C. 7410(a)(2). within which a petition for judicial regulatory policies on matters that F. Unfunded Mandates review may be filed, and shall not significantly or uniquely affect their postpone the effectiveness of such rule communities.’’ Under section 202 of the Unfunded or action. This action may not be Today’s rule does not significantly or Mandates Reform Act of 1995 challenged later in proceedings to uniquely affect the communities of (‘‘Unfunded Mandates Act’’), signed enforce its requirements. (See section Indian tribal governments. Accordingly, into law on March 22, 1995, EPA must 307(b)(2).) the requirements of section 3(b) of prepare a budgetary impact statement to Executive Order 13084 do not apply to accompany any proposed or final rule List of Subjects in 40 CFR Part 52 this rule. that includes a Federal mandate that Environmental protection, Air may result in estimated annual costs to D. Executive Order 13045 pollution control, Incorporation by State, local, or tribal governments in the reference, Intergovernmental relations, Protection of Children from aggregate; or to private sector, of $100 Nitrogen dioxide, Ozone, Reporting and Environmental Health Risks and Safety million or more. Under section 205, recordkeeping requirements. Risks (62 FR 19885, April 23, 1997), EPA must select the most cost-effective applies to any rule that: (1) Is and least burdensome alternative that Dated: August 20, 1999. determined to be ‘‘economically achieves the objectives of the rule and Michael V. Peyton, significant’’ as defined under E.O. is consistent with statutory Acting Regional Administrator, Region 4. 12866, and (2) concerns an requirements. Section 203 requires EPA Part 52 of chapter I, title 40, Code of environmental health or safety risk that to establish a plan for informing and Federal Regulations, is amended as EPA has reason to believe may have a advising any small governments that follows: disproportionate effect on children. If may be significantly or uniquely the regulatory action meets both criteria, impacted by the rule. PART 52Ð[AMENDED] the Agency must evaluate the EPA has determined that the approval 1. The authority citation for part 52 environmental health or safety effects of action promulgated does not include a continues to read as follows: the planned rule on children, and Federal mandate that may result in explain why the planned regulation is estimated annual costs of $100 million Authority: 42.U.S.C. 7401 et seq. or more to either State, local, or tribal preferable to other potentially effective Subpart SÐKentucky and reasonably feasible alternatives governments in the aggregate, or to the considered by the Agency. private sector. This Federal action 2. Section 52.939, is amended by This rule is not subject to E.O. 13045 approves pre-existing requirements adding paragraph (c)(94) to read as because it does not involve decisions under State or local law, and imposes follows: intended to mitigate environmental no new requirements. Accordingly, no health or safety risks. additional costs to State, local, or tribal § 52.939 Original identification of plan governments, or to the private sector, section. E. Regulatory Flexibility Act result from this action. * * * * * The Regulatory Flexibility Act (RFA) (c) * * * generally requires an agency to conduct G. Submission to Congress and the (94) Approval of the Louisville 15 a regulatory flexibility analysis of any Comptroller General percent plan and supporting regulations rule subject to notice and comment The Congressional Review Act, 5 including the 1990 Base Year Emissions rulemaking requirements unless the U.S.C. 801 et seq., as added by the Small Inventory submitted by Kentucky on agency certifies that the rule will not Business Regulatory Enforcement November 12, 1993, and amended on have a significant economic impact on Fairness Act of 1996, generally provides April 5, 1994, and June 30, 1997. a substantial number of small entities. that before a rule may take effect, the (i) Incorporation by reference.
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Regulation 6.43 Volatile Organic Regulation 7.79 Standards of CHRISTOPHER COLUMBUS Compound Emission Reduction Performance for New Commercial QUINCENTENARY JUBILEE Requirements, amended May 21, Motor Vehicle and Mobile Equipment COMMISSION 1997. Refinishing Operations, adopted Regulation 1.18 Rule Effectiveness, February 2, 1994. 45 CFR Chapter XXII adopted September 21, 1994. Regulation 6.45 Standards of Regulation 2.12 Emissions Trading Removal of CFR chapter (Including Banking and Bubble Performance for Existing Solid Waste Landfills, adopted February 2, 1994. Effective December 31, 1993, the Rules), sections 1–7, amended Christopher Columbus Quincentenary December 18, 1996. Regulation 8.03 Commuter Vehicle Jubilee Commission was terminated by Regulation 1.16 Standards for Volatile Testing Requirements, amended Public Law 98–375, 98 Stat. 1257; as Organic Compound Content of September 15, 1993. amended by Public Law 100–94, 101 Architectural and Industrial (ii) Other material. None. Stat. 700. Therefore, the Office of the Maintenance Coatings, adopted Federal Register is removing CCQJC February 2, 1994. * * * * * [FR Doc. 99–23579 Filed 9–10–99; 8:45 am] regulations pursuant to its authority to Regulation 6.40 Standards of maintain an orderly system of Performance for Gasoline Transfer to BILLING CODE 6560±50±P codification under 44 U.S.C. 1510 and 1 Motor Vehicles (Stage II Vapor Recovery CFR part 8. and Control), amended August 9, 1993. Accordingly, 45 CFR is amended by Regulation 6.44 Standards of removing parts 2200 through 2299 and Performance for Existing Commercial vacating Chapter XXII. Motor Vehicles and Mobile Equipment Refinishing Operations, [FR Doc. 99–55529 Filed 9–10–99; 8:45 am] adopted February 2, 1994. BILLING CODE 1505±01±D
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Proposed Rules Federal Register Vol. 64, No. 176
Monday, September 13, 1999
This section of the FEDERAL REGISTER between 7:30 a.m. and 4:15 p.m. Federal (1) Nuclear Waste Transportation contains notices to the public of the proposed workdays. Security and Safety Issues; The Risk of issuance of rules and regulations. The For a copy of the petition, write to Terrorism and Sabotage Against purpose of these notices is to give interested David L. Meyer, Chief, Rules and Repository Shipments, prepared by persons an opportunity to participate in the Robert J. Halstead, Transportation rule making prior to the adoption of the final Directives Branch, Division of rules. Administrative Services, Office of Consultant , Portage, Wisconsin, and Administration, U.S. Nuclear Regulatory James David Ballard, School of Criminal Commission, Washington, DC 20555– Justice, Grand Valley State University, NUCLEAR REGULATORY 0001. Grand Rapids, Michigan, dated October COMMISSION You may also provide comments via 1997 (Attachment A); and the NRC’s interactive rulemaking (2) The Transportation of Spent 10 CFR Part 73 website at http://ruleforum.llnl.gov. Nuclear Fuel and High-Level Waste; A This site provides the capability to Systematic Basis for Planning and [Docket No. PRM±73±10] upload comments as files (any format), Management at National, Regional, and if your web browser supports that Community Levels, prepared for the State of Nevada; Receipt of Petition for function. For information about the Nevada Nuclear Waste Project Office by Rulemaking interactive rulemaking website, contact the Planning Information Corporation, Ms. Carol Gallagher, (301) 415–5905 (e- dated September 10, 1996 (Attachment AGENCY: Nuclear Regulatory mail: [email protected]). B). Commission. The petitioner’s primary interest is The petition and copies of comments ACTION: Petition for rulemaking; notice the potential for many thousands of SNF received may be inspected and copied of receipt. and HLW shipments to Yucca Mountain for a fee at the NRC Public Document and the Nevada Test Site. The Nuclear Room, 2120 L Street, NW. (Lower SUMMARY: The Nuclear Regulatory Waste Policy Amendments Act Level), Washington, DC. Commission (NRC) is publishing for (NWPAA) of 1987 designated Yucca public comment a notice of receipt of a FOR FURTHER INFORMATION CONTACT: Mountain as the site to be characterized petition for rulemaking, dated June 22, David L. Meyer, Chief, Rules and for a national geologic repository for 1999, which was filed with the Directives Branch, Division of SNF and HLW. The petitioner states that Commission by the State of Nevada. The Administrative Services, Office of legislation pending in Congress would petition was docketed by the NRC on Administration, U.S. Nuclear Regulatory designate the Nevada Test Site as sole July 13, 1999, and has been assigned Commission, Washington, DC 20555– location for a centralized interim storage Docket No. PRM–73–10. The petitioner 0001, Telephone: 301–415–7162 or Toll facility. The petitioner states that a requests that the NRC amend its Free: 800–368–5642. study prepared for the Nevada Agency regulations governing safeguards for SUPPLEMENTARY INFORMATION: for Nuclear Projects, estimates that shipments of spent nuclear fuel against 20,200 shipments (13,900 by rail/6,300 sabotage and terrorism. The petitioner The Petitioner by truck) will occur over about 30 years. requests that the NRC conduct a The petitioner (the State of Nevada) is The same study projected 56,600 to comprehensive assessment of the a corridor state for spent nuclear fuel 104,500 shipments over 40 years, for a consequences of terrorist attacks that (SNF) shipments, and has been a repository combined with an interim have the capability of radiological destination and origin state for SNF storage facility. sabotage, including attacks against shipments to and from federal research The petitioner believes that a national transportation infrastructure used facilities. Under current law, Nevada is repository or interim storage facility during nuclear waste shipments, attacks the potential host state for a federal may have a greater symbolic value to involving capture of nuclear waste geologic repository and could become terrorists as a target for attack than at a shipments and use of high energy the ultimate destination for shipments reactor storage facility, and that the explosives against a cask or casks, and of SNF and high-level radioactive waste enhanced symbolic value of the facility direct attacks upon a nuclear waste (HLW). The petitioner has an interest in as a target may extend to SNF shipments shipping cask or casks using antitank protecting the citizens of Nevada from to a national repository or interim missiles or other military weapons. risks associated with the transportation storage facility. The petitioner states DATES: Submit comments by November of SNF and HLW. The petitioner also that in a review of national storage and 29, 1999. Comments received after this has an interest as the entity responsible disposal policy options, the U.S. date will be considered if it is practical for immediate emergency response, in Nuclear Waste Technical Review Board to do so, but the Commission is able to ensuring that transporters of SNF have (NWTRB) observed that compared to assure consideration only for comments adequately prepared for potential reactor sites ‘‘a single facility with a received on or before this date. emergencies within the State of Nevada. large stockpile of spent fuel might be a ADDRESSES: Submit written comments The petitioner notes a particular more tempting and visible target.’’ 1 The to the Secretary of the Commission, U.S. concern for physical protection of SNF petitioner agrees with the NWTRB Nuclear Regulatory Commission, shipments under 10 CFR part 73. Washington, DC 20555–0001, Attention: 1 Report of the U.S. Nuclear Waste Technical Background Review Board entitled ‘‘Disposal and Storage of Rulemakings and Adjudications Staff. Spent Nuclear Fuel—Finding the Right Balance; A Hand deliver comments to: 11555 As part of this petition, the petitioner Report to Congress and the Secretary of Energy,’’ at Rockville Pike, Rockville, Maryland, has included two separate reports— 20 (March 1996).
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.018 pfrm08 PsN: 13SEP1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules 49411 conclusion that more analyses are designs, developed to increase payloads use different structural and shielding needed to determine if ‘‘either an at- without exceeding specified weight materials, compared to casks currently reactor or centralized storage facility limits, appear to be more vulnerable to in use, and compared to the older casks would be more exposed to theft or attacks involving past, current, and that were assumed in the DOE and NRC sabotage,’’ and that these analyses future weapons systems and commercial sabotage consequence assessments in should also consider SNF shipments to explosives. The petitioner believes that the early 1980s. The petitioner states a centralized facility. The petitioner also these developments argue for a that some of these differences may make believes that a storage or disposal strengthening of the safeguards them more vulnerable to attack with facility operated by the U.S. Department regulations. armor-piercing weapons or high-energy of Energy (DOE), the U.S. government The petitioner believes that portable explosives. agency responsible for producing tank weapons have become more The Petition nuclear weapons, may have greater powerful, more reliable, and more symbolic value to terrorists as a target available worldwide since the early The petitioner requests that the NRC for attack than commercial storage 1980s. The petitioner believes that most, reexamine the issue of terrorism and facilities, and that the enhanced if not all, of the antitank missiles sabotage against spent nuclear fuel and symbolic value may extend to DOE’s identified in Attachment A of the high-level radioactive waste shipments shipments of SNF and HLW to this type petition (Table 5), have warheads to determine the adequacy of the current of facility. capable of completely perforating a physical protection regulations and to The petitioner believes that the nature truck cask and its spent fuel cargo, and assist the DOE and the affected of the terrorist threat has changed most are capable of deeply penetrating stakeholders in the preparation of a significantly since the Commission last or completing perforating a rail cask and legally sufficient environmental impact evaluated the adequacy of its SNF damaging the spent fuel inside. The statement as part of the NRC licensing transportation safeguards regulations in petitioner states that these weapons are process for a geologic repository or an 1984. The petitioner believes that a designed to hit moving targets at a interim storage facility. general strengthening of the regulations distance of 30 meters or more, The petitioner requests that the NRC intended to safeguard SNF shipments is eliminating the need to capture the cask, conduct a comprehensive assessment of necessary because of what they identify and facilitating selection of optimal consequences of three types of attacks as new developments in two critical attack times and locations. The that have the potential for radiological areas: petitioner believes that the portability of sabotage— (1) Changes in the nature of the these weapons allows further flexibility (1) Attacks against transportation terrorist threat; and in attack planning, including use of infrastructure used by nuclear waste (2) Increased vulnerability of shipping multiple warheads, and in escape shipments, casks to terrorist attacks involving high- planning. (2) Attacks involving capture of a energy explosive devices. The petitioner believes that the SNF nuclear waste shipment and use of high- It is the petitioner’s position that shipping casks are vulnerable to attacks energy explosives against the cask; and since 1984, three major changes have using military and commercial (3) Direct attacks upon a nuclear occurred in the nature of the terrorist explosives, particularly conical shaped shipping cask using antitank missiles or threat that argue for a strengthening of charges. The petitioner states that DOE- other military weapons. the safeguards regulations: sponsored tests in the early 1980s The petitioner states that the (1) An increase in lethality of terrorist demonstrated that an attack on a truck consequence assessment for repository attacks in the United States; using a large military shaped charge shipments should address the full range (2) An increase in serious terrorist could result in release of one percent of of impact of a terrorism/sabotage event attacks and threats against the SNF cargo, and that well-trained resulting in a release of radioactive transportation systems; and terrorists planning to capture, control materials: immediate and long-term (3) A renewal of concern about and directly attack spent fuel shipping implications for public health; nuclear terrorism generally, and casks are likely to use shaped charges as environmental impacts, broadly specifically terrorist actions involving their weapon of choice. The petitioner defined; standard socio-economic potential radioactive contamination. believes that the technology of shape impacts, including cleanup and disposal The petitioner believes that the charges and detonation systems, costs and opportunity costs to affected willingness of terrorists to kill or injure especially for applications in the individuals and businesses; and so- large numbers of Americans, construction and petroleum industries, called special socio-economic impacts, demonstrated in the World Trade Center and for specialized purposes such as including individual and collective and Oklahoma City bombings, compels military demining, have continued to psychological trauma, and economic a focus on incidents that are clearly evolve since the early 1980s. Numerous losses resulting from public perceptions intended to cause, or could cause, ‘‘off the shelf’’ military and commercial of risk and stigma effects. radiological sabotage. shape charges weighing around one The petitioner requests that the The petitioner believes that kilogram are capable of penetrating 10 Commission reexamine the design basis developments in two related areas have to 20 inches of steel. threat used to design safeguards systems increased the vulnerability of spent fuel The petitioner believes that new spent to protect shipments of SNF against acts shipping casks to terrorist attacks fuel shipping cask designs, developed to of radiological sabotage. The current involving high-energy explosive devices increase payloads without exceeding regulations under 10 CFR 73.1(a)(1)(i), since the NRC last evaluated the specified weight limits, appear require licensees to design safeguards adequacy of its SNF transportation vulnerable to attacks involving current systems to protect shipments against safeguards regulations. Their first and future military weapons systems attacks involving several well-trained premise is that the capabilities and and commercial explosives. The and dedicated individuals, hand-held availability of explosive devices, petitioner believes the casks used for automatic weapons, a four-wheel drive especially antitank weapons, have shipments to a repository and/or interim land vehicle, and hand-carried increased significantly. Their second is storage facility shipments will have equipment, including incapacitating that new spent fuel shipping cask different design configurations, and will agents and explosives. The regulations
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.018 pfrm08 PsN: 13SEP1 49412 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules should also specify that the attackers cancer fatalities. The petitioner believes road. These current regulations state, in may receive insider (employee) that local fears and anxieties would be part: assistance and use a four-wheel drive amplified by national and international land vehicle bomb. media coverage. The petitioner believes § 73.37 Requirements for physical The petitioner requests that the protection of irradiated reactor fuel in that adverse economic impacts would transit. Commission clarify the meaning of include the cost of emergency response, ‘‘hand-carried equipment’’ within the evacuation, decontamination and (c) * * * current design basis threat. The (1) A transport vehicle within a heavily disposal; opportunity costs to affected populated area is: petitioner requests that the NRC amend individuals, property-owners, and (i) Occupied by at least two individuals, the design basis threat to include use of businesses; and economic losses one of whom serves as escort, and escorted explosive devices and other weapons resulting from public perceptions of risk by an armed member of the local law larger than those commonly considered and stigma effects. enforcement agency in a mobile unit of such to be hand-carried or hand-held, and the The petitioner requests that the NRC agency: or use of vehicles other than four-wheel reexamine its regulations requiring (ii) Led by a separate vehicle occupied by drive civilian land vehicles. The advance route approval requirements, in at least one armed escort, and trailed by a petitioner states that well-trained and light of the expected increase in SNF third vehicle occupied by at least one armed escort. dedicated adversaries could conceivably shipments once a Federal repository or (2) A transport vehicle not within any obtain and use military attack vehicles interim storage facility begins heavily populated area is: or military aircraft armed with bombs, operations. The petitioner states that (i) Occupied by at least one driver and one missiles, or other powerful weapons. neither the current physical protection other individual who serves as escort; or The petitioner believes that the regulations, nor the U.S. Department of (ii) Occupied by a driver and escorted by possibility of attacks involving stolen or Transportation’s routing regulations, a separate vehicle occupied by at least two otherwise diverted military weapons require shippers and carriers to escorts; or system should be given special minimize shipments through highly (iii) Escorted as set forth in paragraph (c)(1) of this section. consideration considering the number populated areas. The petitioner states and nature of military installations in that since 1979, the NRC has approved * * * * * Nevada and along the transportation many highway routes through heavily The petitioner requests that the NRC corridors to Nevada. populated areas, including I–15 through amend its regulations to eliminate the The petitioner requests that the NRC Las Vegas, NV, and I–80 through Reno- differential armed escort requirements reexamine the definition of Sparks, NV. The petitioner states that a based on population. The petitioner ‘‘radiological sabotage’’ in 10 CFR 73.2. transportation risk assessment recently contends that the current requirements Currently, NRC regulations define published by the NRC assumes that tens for shipments within a heavily ‘‘radiological sabotage’’ as ‘‘* * * any of thousands of truck shipments to a populated area should be uniformly deliberate act directed against a plant or repository at Yucca Mountain, NV, applied to all road shipments. The transport in which an activity licensed could travel through Las Vegas, NV, and petitioner believes that residents of pursuant to the regulations in * * * (10 other heavily populated areas of Clark small cities, towns, and rural areas CFR part 73) is conducted, or against a County, Nevada. along shipment routes are entitled to the component of such a plant or transport The current regulations requiring same level of protection as residents of which could directly or indirectly advance route approval require heavily populated areas. The petitioner endanger the public health and safety by licensees to provide for advance states that there are many Nevada exposure to radiation.’’ approval by the NRC of the routes used locations outside of designated, heavily The petitioner believes that the for road and rail shipments of spent populated areas with significant wording ‘‘could directly or indirectly fuel, and of any U.S. ports where vessels population concentrations within one- endanger’’ implies a judgment by the carrying spent fuel shipments are half mile of a potential SNF shipment NRC regarding the consequences of the scheduled to stop [10 CFR 73.37(b)(7)]. route. The petitioner asserts that many action, as opposed to the intentions of The petitioner believes that the NRC difficult-to-evacuate facilities, such as the individuals carrying out the action. should specifically require shippers and schools, hospitals, industrial plants, The petitioner states that actions against carriers to identify primary and shopping centers, hotels, and resorts, SNF shipments that are intended to alternate routes that minimize highway are located immediately adjacent to cause a loss of shielding or a release of and rail shipments through heavily potential truck shipment routes in small radioactive materials should be populated areas. The petitioner states cities and towns; several major water included in the definition of that the NRC should adopt the route supplies and outdoor recreation ‘‘radiological sabotage,’’ regardless of selection criteria in NUREG–0561 2 as facilities with high, seasonal population the success or failure of the action. The part of the regulations, and specifically densities are located in close proximity petitioner states that the definition require shippers and carriers to to potential truck shipments routes in should include deliberate actions that minimize use of routes that fail to rural Nevada. cause, or are intended to cause, comply with the route selection criteria. The petitioner also requests the NRC economic damage or social disruption The petitioner requests that the NRC to increase the armed escort regardless of the extent to which public reexamine its regulations requiring requirements for truck shipments. The health and safety are actually armed escorts for SNF shipments by petitioner believes that new, high- endangered by exposure to radiation. capacity, legal-weight truck SNF The petitioner believes that an incident 2 Copies of NUREGS may be purchased from the shipping cask designs may be involving an intentional release of Reproduction and Distribution Section, Office of particularly vulnerable to attacks the Chief Information Officer, U.S. Nuclear radioactive materials, especially in a Regulatory Commission, Washington, DC 20555– involving high-energy explosive heavily populated area, could cause 0001. Copies are also available from the National devices. At a minimum, the NRC should widespread social disruption and Technical Information Service, 5285 Port Royal consider requiring at least one armed Road, Springfield, VA 22161. A copy is also escort each in a lead vehicle and a chase substantial economic losses even if available for inspection and/or copying at the NRC there were no immediate human Public Document Room, 2120 L Street, NW. (Lower vehicle, with one escort being a state or casualties and few projected latent Level), Washington, DC. local law enforcement officer.
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The petitioner requests that the NRC and disadvantages of requiring a level of and enhanced requirements or rail eliminate the differential armed escort protection comparable to that provided shipment armed escorts. requirements for rail shipments based for rail shipments of strategic special The Petitioner’s Conclusions on population. The current regulations nuclear materials (SNM); seven armed state, in part: escorts stationed in a variety of The petitioner submits that the configurations aboard the train or in one foregoing regulatory amendments and § 73.37 Requirements for physical or more escort vehicles. the need for a comprehensive protection of irradiated reactor fuel in assessment are necessitated by changes transit. The petitioner requests that the NRC adopt additional planning and in the nature of the terrorist threat and (d) * * * scheduling requirements for the increased vulnerability of shipping (1) A shipment car within a heavily casks to terrorist attacks involving high- populated area is accompanied by two armed physical protection of SNF shipments escorts (who may be members of a local law based on the precautions already energy explosive devices, as set forth in enforcement agency), at least one of whom is applied to shipments of SNM. The the petition. In the interest of stationed at a location on the train that will current regulations for shipments of safeguarding the public health, safety, permit observation of the shipment car while SNM state, in part: and welfare, the petitioner urges the in motion. Commission to undertake the tasks (2) A shipment car not within any heavily § 73.26 Transportation physical protection outlined in the petition. populated area is accompanied by at least systems, subsystems, components, and one escort stationed at a location on the train procedures. For the Nuclear Regulatory Commission. Dated at Rockville, Maryland, this 7th day that will permit observation of the shipment (b) * * * of September, 1999. car while in motion. (1) Shipments shall be scheduled to avoid * * * * * regular patterns and preplanned to avoid Annette L. Vietti-Cook, The petitioner states that in Nevada areas of natural disaster or civil disorders, Secretary of the Commission. and other western states, many small such as strikes or riots. Such shipments shall [FR Doc. 99–23691 Filed 9–10–99; 8:45 am] cities and towns grew up around rail be planned in order to avoid storage times in BILLING CODE 7590±01±P lines and rail service facilities. In these excess of 24 hours and to assure that communities, there are significant deliveries occur at a time when the receiver population concentrations within one- at the final delivery point is present to accept the shipment. DEPARTMENT OF TRANSPORTATION half mile of a potential SNF rail shipment route. In Nevada and other * * * * * Federal Aviation Administration western states, mainline railroads are The petitioner requests that the NRC frequently located in river valleys near amend the general requirements for 14 CFR Part 23 major water supplies. The petitioner physical protection of irradiated reactor fuel in transit by adopting the same [Docket No. CE154; Notice No. 23±99±01± also states that mainline railroads of SC] national economic significance may, in- planning and scheduling requirements and-of themselves, be as attractive as for special nuclear material in transit. Special Conditions: Cessna Aircraft targets for terrorists as heavily The petitioner requests that the NRC Company, Model 525A, High Altitude populated areas. The Union Pacific Salt require all rail shipments of SNF to be Operation. Lake City-Los Angeles mainline through made in dedicated trains. Considering southern Nevada, potentially the the potentially large number of cross- AGENCY: Federal Aviation primary shipment route to Yucca country rail shipments to a repository Administration (FAA), DOT. Mountain, is a rail route of national and/or storage facility, more than 12,000 ACTION: Notice of proposed special economic significance. rail cask shipments of SNF and more conditions. The petitioner requests that the NRC, than 1,000 rail cask shipments of HLW, SUMMARY: as part of re-examining its physical the petitioner believes that the This notice proposes special protection requirements, consider performance objectives set forth in conditions for the Cessna Aircraft increasing substantially the armed § 73.37(a)(1) can only be met by Company Model 525A airplane. This escort requirements for rail shipments. requiring all rail shipments to be made airplane will have novel or unusual The petitioner believes that new high- in dedicated trains. The petitioner also design features associated with high capacity (125 ton) rail shipping cask requests that the NRC consider the altitude operation. The applicable designs may be particularly vulnerable physical protection implications of airworthiness regulations do not contain to attacks involving antitank missiles, shipping SNF in dedicated trains adequate or appropriate safety standards and that armed escorts aboard the train compared to general rail freight service. for this design feature. These proposed could be incapacitated at the beginning While continuing to believe that the use special conditions contain the of an attack, or as a result of a train of dedicated trains should be additional safety standards that the derailment. The petitioner requests that mandatory, the petitioner acknowledges Administrator considers necessary to the NRC consider requiring at least two arguments that dedicated trains pose establish a level of safety equivalent to armed escorts in an escort vehicle, in certain disadvantages from a physical that established by the existing addition to the two armed escorts protection standpoint. The petitioner airworthiness standards. aboard the train. states that dedicated trains may DATES: Comments must be received on Based on recent experience during the facilitate target tracking and attack or before October 13, 1999. foreign research reactor SNF shipments scheduling by potential adversaries, and ADDRESSES: Comments on this proposal through Nevada, the petitioner believes multiple casks in a short train may may be mailed in duplicate to: Federal the NRC should also consider requiring facilitate target selection and weapon Aviation Administration, Regional continuous, real-time aircraft delivery. According to the petitioner, Counsel, ACE–7, Attention: Rules surveillance along certain rail route the NRC’s consequence assessment Docket, Docket No. CE154, 601 East segments through rough terrain and should evaluate the advantages and 12th Street, Kansas City, Missouri through heavily populated areas. The disadvantages of shipping SNF in 64106, or delivered in duplicate to the NRC should evaluate the advantages dedicated trains, assuming both current Regional Counsel at the above address.
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Comments must be marked: CE154. develop special conditions that provide accomplished by the use of mask- Comments may be inspected in the the level of safety to that established by mounted regulators. The special Rules Docket weekdays, except Federal the regulations. condition, therefore, requires pressure holidays, between 7:30 a.m. and 4 p.m. The FAA has previously issued demand masks with mask-mounted FOR FURTHER INFORMATION CONTACT: Special Conditions No. 23–ACE–87, to regulators for the flightcrew. This Lowell Foster, Federal Aviation another small turbojet airplane model combination of equipment will provide Administration, Aircraft Certification with requested approval for operation the best practical protection for the Service, Small Airplane Directorate, up to 49,000 feet. failures covered by the special ACE–111, 601 East 12th Street, Kansas The FAA policy is to apply special conditions and for improbable failures City, Missouri, 816–426–5688, fax 816– conditions to part 23 airplanes when the not covered by the special conditions, 426–2169. certified altitude exceeds the capability provided the cabin altitude is limited. of the oxygen system (in this case, the SUPPLEMENTARY INFORMATION: passenger system). This was the Type Certification Basis Comments Invited situation for a part 23 turbojet airplane. Under the provisions of 21.101, Thus, the special conditions were Cessna Aircraft Company must show Interested persons are invited to deemed to be appropriate for the Cessna participate in the making of these that the Cessna Model 525A meets the Model 525A and provide the basis for applicable provisions of the regulations proposed special conditions by formulating the special conditions submitting such written data, views, or incorporated by reference in Type described below: Certificate Data Sheet A1WI or the arguments as they may desire. Damage tolerance methods are Communications should identify the applicable regulations in effect on the proposed to assure pressure vessel date of application for the change to the regulatory docket or notice number and integrity while operating at the higher be submitted in duplicate to the address Cessna Model 525A. The regulations altitudes. Crack growth data is used to incorporated by reference in the type specified above. All communications prescribe an inspection program, which received on or before the closing date certificate are commonly referred to as should detect cracks before an opening the ‘‘original type certification basis.’’ for comments will be considered by the in the pressure vessel would allow rapid Administrator. The proposals described The regulations incorporated by depressurization. Initial crack sizes for reference in Type Certificate Data Sheet in this notice may be changed in light detection are determined under 23.571 of the comments received. All A1WI are as follows: as amended by Amendment 23–48. (1) Part 23 of the Federal Aviation comments received will be available in The cabin altitude after failure may Regulations effective February 1, 1965, the Rules Docket for examination by not exceed the cabin altitude/time as amended by Amendments 23–1 interested persons, both before and after history curve limits shown in Figures 3 through 23–40; the closing date for comments. A report and 4. summarizing each substantive public Continuous flow passenger oxygen (a) In addition, if the regulations contact with FAA personnel concerning equipment is certified for use up to incorporated by reference do not this rulemaking will be filed in the 40,000 feet; however, for rapid provide adequate standards with respect docket. Persons wishing the FAA to decompressions above 34,000 feet, to the change, the applicant must acknowledge receipt of their comments reverse diffusion leads to low oxygen comply with certain regulations in effect submitted in response to this notice partial pressures in the lungs, to the on the date of application for the must include with those comments a extent that a small percentage of change. The FAA has determined that self-addressed, stamped postcard on passengers may lose useful the Cessna Model 525A must also be which the following statement is made: consciousness at 35,000 feet. The shown to comply with the following ‘‘Comments to CE154.’’ The postcard percentage increases to an estimated 60 sections of part 23: will be date stamped and returned to the percent at 40,000 feet, even with the use Federal Aviation Regulations commenter. of the continuous flow system. To §§ 23.331, 23.351, 23.421, 23.423, prevent permanent physiological 23.425, 23.427, 23.939, and 23.1163 as Background damage, the cabin altitude must not amended by Amendments 23–1 through On May 14, 1998, Cessna Aircraft exceed 25,000 feet for more than 2 23–42; Company applied to amend the Model minutes. The maximum peak cabin Federal Aviation Regulations 525 Type Certificate to add a new Model altitude of 40,000 feet is consistent with §§ 23.943, 23.951, 23.957, 23.961, 525A. The Model 525A is a derivative the standards established for previous 23.967, 23.991, 23.993, 23.997, 23.999, of the Model 525 currently approved certification programs. In addition, at 23.1001, 23.1011, 23.1019, 23.1041, under Type Certificate Data Sheet these altitudes the other aspects of 23.1061, 23.1189, 23.1322, 23.1357, A1WI. decompression sickness have a 23.1391, 23.1393, 23.1395, and 23.1445 The Cessna Model 525A, a derivative significant, detrimental effect on pilot as amended by Amendments 23–1 of the Model 525, will be certified for performance (for example, a pilot can be through 23–43; operation to a maximum altitude of incapacitated by internal expanding Federal Aviation Regulations 45,000 feet. This will be the first of this gases). §§ 23.305, 23.321, 23.361, 23.397, series to be approved above 41,000 feet. Decompression above the 37,000 foot 23.479, 23.485, 23.613, 23.615, 23.621, The certification basis of the Model 525 limit of Figure 4 approaches the 23.731 and 23.1549 as amended by was primarily 14 CFR part 23, as physiological limits of the average Amendments 23–1 through 23–45; amended by Amendments 23–1 through person; therefore, every effort must be Federal Aviation Regulations 23–40, plus special conditions. This made to provide the pilot with adequate §§ 23.335, 23.337, 23.341, 23.343, unusually high operating altitude oxygen equipment to withstand these 23.345, 23.347, 23.371, 23.393, 23.399, constitutes a novel or unusual design severe decompressions. Reducing the 23.415, 23.441, 23.443, 23.455, 23.457, feature for which the applicable time interval between pressurization 23.473, 23.499, 23.561, 23.571, 23.572, airworthiness regulations do not contain failure and the time the pilot receives 23.611, 23.629, 23.673, and 23.725 as adequate or appropriate safety oxygen will provide a safety margin amended by Amendments 23–1 through standards. Therefore, it is necessary to against being incapacitated and can be 23–48;
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Federal Aviation Regulations type certification basis in accordance 4 (Pressurization), of this special §§ 23.677, 23.723, 23.785, 23.787, with 21.101(b)(2). condition must be determined. It must 23.791, 23.853, 23.855, 23.1303, Special conditions are initially be demonstrated by crack propagation 23.1307, 23.1321, 23.1351, 23.1353, applicable to the model for which they and damage tolerance analysis 23.1361, and 23.1401 as amended by are issued. Should the type certificate supported by testing that a larger Amendments 23–1 through 23–49; for that model be amended later to opening or a more severe failure than Federal Aviation Regulations include any other model that demonstrated will not occur in normal §§ 23.233, 23.235, 23.1555, and 23.1589 incorporates the same novel or unusual operations. as amended by Amendments 23–1 design feature, or should any other (b) Inspection schedules and through 23–50; model already included on the same procedures must be established to Federal Aviation Regulations type certificate be modified to assure that cracks and normal fuselage §§ 23.901, 23.903, 23.929, 23.963, incorporate the same novel or unusual leak rates will not deteriorate to the 23.965, 23.1013, 23.1043, 23.1143, design feature, the special conditions extent that an unsafe condition could 23.1183, 23.1191, and 23.1337 as would also apply to the other model exist during normal operation. under the provisions of 21.101(a)(1). amended by Amendments 23–1 through 2. Ventilation 23–51; Novel or Unusual Design Features (2) Federal Aviation Regulations part In addition to the requirements of 36 effective December 1, 1969, as The Model 525A will incorporate the § 23.831(b), the ventilation system must amended by Amendments 36–1 through following novel or unusual design be designed to provide a sufficient the amendment in effect at the time of features: amount of uncontaminated air to enable TC issuance. The methods used to ensure pressure the crewmembers to perform their (3) Federal Aviation Regulations part vessel integrity and to provide duties without undue discomfort or 34 effective September 10, 1990, as ventilation, air conditioning, and fatigue and to provide reasonable amended by Amendment 34–1, Fuel pressurization will be unique due to the passenger comfort during normal Venting and Exhaust Emission operating altitude of this airplane. operating conditions and in the event of Requirements for Turbine Engine Applicability any probable failure of any system that could adversely affect the cabin Powered Airplanes. As discussed above, these special (4) Special Conditions as follows: ventilating air. For normal operations, conditions are applicable to the Cessna crewmembers and passengers must be (a) 23–ACE–55, additional Model 525A. Should the Cessna Aircraft requirements for engine location, provided with at least 10 cubic feet of Company apply at a later date for a fresh air per minute per person, or the performance, characteristics, and change to the type certificate to include protection of electronic systems from equivalent in filtered recirculated air, another model incorporating the same based on the volume and composition at lightning and high intensity radiated novel or unusual design feature, the electromagnetic fields (HIRF). the corresponding cabin pressure special conditions would apply to that altitude of no more than 8,000 feet. (b) Special conditions adopted by this model as well under the provisions of rulemaking action. 21.101(a)(1). 3. Air Conditioning (5) Exemption: Exemption number In addition to the requirements of 5759 granted. Model 525A to use Conclusion § 23.831, the cabin cooling system must Federal Aviation Regulations § 25.181 in This action affects only certain novel be designed to meet the following lieu of damping criteria of Federal or unusual design features on one model conditions during flight above 15,000 Aviation Regulations § 23.181(b). of airplane. It is not a rule of general feet mean sea level (MSL): (6) Compliance with ice protection applicability, and it affects only the (a) After any probable failure, the will be demonstrated in accordance applicant who applied to the FAA for cabin temperature/time history may not with Federal Aviation Regulations approval of these features on the exceed the values shown in Figure 1. § 23.1419. airplane. (b) After any improbable failure, the If the Administrator finds that the List of Subjects in 14 CFR Part 23 cabin temperature/time history may not applicable airworthiness regulations exceed the values shown in Figure 2. (i.e., part 23) do not contain adequate or Aircraft, Aviation safety, Signs and appropriate safety standards for the symbols. 4. Pressurization Cessna Model 525A because of a novel Citation In addition to the requirements of or unusual design feature, special § 23.841, the following apply: conditions are prescribed under the The authority citation for these (a) The pressurization system, which provisions of § 21.16. special conditions is as follows: includes for this purpose bleed air, air In addition to the applicable Authority: 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR conditioning, and pressure control airworthiness regulations and special 11.28 and 11.29(b). systems, must prevent the cabin altitude conditions, the Model 525A must from exceeding the cabin altitude-time comply with the part 23 fuel vent and The Proposed Special Conditions history shown in Figure 3 after each of exhaust emission requirements of 14 Accordingly, the Federal Aviation the following: CFR part 34 and the part 23 noise Administration (FAA) proposes the (1) Any probable malfunction or certification requirements of 14 CFR following special conditions as part of failure of the pressurization system, in part 36, and the FAA must issue a the type certification basis for the conjunction with any undetected, latent finding of regulatory adequacy pursuant Cessna Aircraft Company Model 525A malfunctions or failures, must be to § 611 of Public Law 92–574, the airplane. considered. ‘‘Noise Control Act of 1972.’’ (2) Any single failure in the Special conditions, as appropriate, are 1. Pressure Vessel Integrity pressurization system combined with issued in accordance with § 11.49 after (a) The maximum extent of failure the occurrence of a leak produced by a public notice, as required by §§ 11.28 and pressure vessel opening that can be complete loss of a door seal element, or and 11.29(b), and become part of the demonstrated to comply with paragraph a fuselage leak through an opening
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.009 pfrm08 PsN: 13SEP1 49416 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules having an effective area 2.0 times the source(s), etc.) that affects quick-donning oxygen mask system effective area that produces the pressurization. with a pressure-demand, mask mounted maximum permissible fuselage leak rate (3) Complete loss of thrust from all regulator must be provided for the approved for normal operation, engines. flightcrew. It must be shown that each whichever produces a more severe leak. (c) In showing compliance with quick-donning mask can, with one hand (b). The cabin altitude-time history paragraphs 4a and 4b of these special and within 5 seconds, be placed on the may not exceed that shown in Figure 4 conditions (Pressurization), it may be face from its ready position, properly after each of the following: assumed that an emergency descent is secured, sealed, and supplying oxygen (1) The maximum pressure vessel made by an approved emergency upon demand. opening resulting from an initially procedure. A 17-second crew detectable crack propagating for a recognition and reaction time must be (b) In addition to the requirements of period encompassing four normal applied between cabin altitude warning § 23.1443, the following applies: A inspection intervals. Mid-panel cracks and the initiation of an emergency continuous flow oxygen system must be and cracks through skin-stringer and descent. provided for each passenger. skin-frame combinations must be Note: For the flight evaluation of the rapid (c) In addition to the requirements of considered. § 23.1445, the following applies: If the (2) The pressure vessel opening or descent, the test article must have the cabin volume representative of what is expected to flightcrew and passengers share a duct failure resulting from probable be normal, such that Cessna must reduce the damage (failure effect) while under common source of oxygen, a means to total cabin volume by that which would be separately reserve the minimum supply maximum operating cabin pressure occupied by the furnishings and total number differential due to a tire burst, engine of people. required by the flightcrew must be rotor burst, loss of antennas or stall provided. 5. Oxygen Equipment and Supply warning vanes, or any probable BILLING CODE 4910±13±P equipment failure (bleed air, pressure (a) In addition to the requirements of control, air-conditioning, electrical § 23.1441(d), the following applies: A
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VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00008 Fmt 4702 Sfmt 4725 E:\FR\FM\A13SE2.010 pfrm08 PsN: 13SEP1 49418 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules
Issued in Kansas City, Missouri on August is promoted by issuance of mandatory Transport Airplane Directorate, 1601 31, 1999. continuing airworthiness information by Lind Avenue, SW., Renton, Washington Michael Gallagher, a foreign civil airworthiness authority. 98055–4056; telephone (425) 227–2110; Manager, Small Airplane Directorate, Aircraft The actions specified by the proposed fax (425) 227–1149. Certification Service. AD are intended to prevent the power SUPPLEMENTARY INFORMATION: [FR Doc. 99–23719 Filed 9–10–99; 8:45 am] levers from binding due to the backing Comments Invited BILLING CODE 4910±13±C out of screws that secure the solenoid bracket within the flight idle stop Interested persons are invited to assembly, which could result in the participate in the making of the DEPARTMENT OF TRANSPORTATION malfunction of the flight idle stop proposed rule by submitting such mechanism and the inability to move written data, views, or arguments as Federal Aviation Administration the power levers to flight idle. they may desire. Communications shall identify the Rules Docket number and 14 CFR Part 39 DATES: Comments must be received by October 13, 1999. be submitted in triplicate to the address [Docket No. 99±NM±200±AD] specified above. All communications ADDRESSES: Submit comments in received or or before the closing date for triplicate to the Federal Aviation RIN 2120±AA64 comments, specified above, will be Administration (FAA), Transport Airworthiness Directives; Sab Model considered before taking action on the Airplane Directorate, ANM–114, proposed rule. The proposals contained SAAB SF340A and SAAB 340B Series Attention: Rules Docket No. 99–NM– Airplanes in this notice may be changed in light 200–AD, 1601 Lind Avenue, SW., of the comments received. AGENCY: Federal Aviation Renton, Washington 98055–4056. Comments are specifically invited on Administration, DOT. Comments may be inspected at this the overall regulatory, economic, location between 9:00 a.m. and 3:00 ACTION: Notice of proposed rulemaking environmental, and energy aspects of p.m., Monday through Friday, except (NPRM). the proposed rule. All comments Federal holidays. submitted will be available, both before SUMMARY: This document proposes the The service information referenced in and after the closing date for comments, adoption of a new airworthiness the proposed rule may be obtained from in the Rules Docket for examination by directive (AD) that is applicable to Saab Aircraft AB, SAAB Aircraft interested persons. A report certain Saab Model SAAB SF340A and Product Support, S–581.88, Linko¨ping, summarizing each FAA-public contact SAAB 340B series airplanes. This Sweden. This information may be concerned with the substance of this proposal would require repetitive examined at the FAA, Transport proposal will be filed in the Rules inspections of the control quadrant for Airplane Directorate, 1601 Lind Docket. loose screws, and replacement of the Avenue, SW., Renton, Washington. Commenters wishing the FAA to control quadrant with a modified part, FOR FURTHER INFORMATION CONTACT: acknowledge receipt of their comments which constitutes terminating action for Norman B Martenson, Manager, submitted in response to this notice the repetitive inspections. This proposal International Branch, ANM–116, FAA, must submit a self-addressed, stamped
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.010 pfrm08 PsN: 13SEP1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules 49419 postcard on which the following States under the provisions of section For the reasons discussed above, I statement is made: ‘‘Comments to 21.29 of the Federal Aviation certify that this proposed regulation (1) Docket Number 99–NM–200–AD.’’ The Regulations (14 CFR 21.29) and the is not a ‘‘significant regulatory action’’ postcard will be date stamped and applicable bilateral airworthiness under Executive Order 12866; (2) is not returned to the commenter. agreement. Pursuant to this bilateral a ‘‘significant rule’’ under the DOT airworthiness agreement, the LFV has Regulatory Policies and Procedures (44 Availability of NPRMs kept the FAA informed of the situation FR 11034, February 26, 1979); and (3) if Any person may obtain a copy of this described above. The FAA has promulgated, will not have a significant NPRM by submitting a request to the examined the findings of the LFV, economic impact, positive or negative, FAA, Tranport Airplane Directorate, reviewed all available information, and on a substantial number of small entities ANM–114, Attention: Rules Docket No. determined that AD action is necessary under the criteria of the Regulatory 99–NM–200–AD, 1601 Lind Avenue, for products of this type design that are Flexibility Act. A copy of the draft SW., Renton, Washington 98055–4056. certificated for operation in the United regulatory evaluation prepared for this Discussion States. action is contained in the Rules Docket. A copy of it may be obtained by The Luftfartsverket (LFV), which is Explanation of Requirements of Proposed Rule contacting the Rules Docket at the the airworthiness authority for Sweden, location provided under the caption recently notified the FAA that an unsafe Since an unsafe condition has been ADDRESSES. condition may exist on certain Saab identified that is likely to exist or Model SAAB SF340A and SAAB 340B develop on other airplanes of the same List of Subjects in 14 CFR Part 39 series airplanes. The LFV advises that type design registered in the United Air transportation, Aircraft, Aviation an operator has reported a problem with States, the proposed AD would require safety, Safety. the left-hand power lever binding and accomplishment of the actions specified not going into reverse after landing. The in the service bulletin described The Proposed Amendment investigation showed that a screw had previously. Accordingly, pursuant to the backed out of a cam and caused binding Cost Impact authority delegated to me by the within the control quadrant. Backing Administrator, the Federal Aviation out of the screw has been attributed to The FAA estimates that 289 airplanes Administration proposes to amend part failure to apply locking compound of U.S. registry would be affected by this 39 of the Federal Aviation Regulations during installation. Another screw was proposed AD, that it would take (14 CFR part 39) as follows: also found to be missing locking approximately 1 work hour per airplane compound. This condition, if not to accomplish the proposed inspection, PART 39ÐAIRWORTHINESS corrected, could result in the and that the average labor rate is $60 per DIRECTIVES malfunction of the flight idle stop work hour. Based on these figures, the mechanism and the inability to move cost impact of the proposed AD on U.S. 1. The authority citation for part 39 the power levers to flight idle. operators is estimated to be $17,340, or continues to read as follows: $60 per airplane, per inspection cycle. Authority: 49 U.S.C. 106(g), 40113, 44701. Explanation of Relevant Service The FAA estimates that it would take Information approximately 4 work hours per § 39.13 [Amended] Saab has issued Service Bulletin 340– airplane to accomplish the proposed 2. Section 39.13 is amended by 76–043, Revision 01, dated July 29, replacement, at an average labor rate of adding the following new airworthiness 1999, which describes procedures for $60 per work hour. Required parts directive: repetitive inspections of the control would be supplied by the parts Saab Aircraft AB: Docket 99–NM–200–AD. quadrant for loose screws, and manufacturer at no cost to the operators. Applicability: Saab Model SAAB SF340A replacement of the control quadrant Based on these figures, the cost impact series airplanes, serial numbers 004 through with a modified control quadrant. Such of the proposed replacement on U.S. 159 inclusive; and Model SAAB 340B series replacement would eliminate the need operators is estimated to be $69,360, or airplanes, series number 160 through 459 for the repetitive inspections. The $240 per airplane. inclusive; certificated in any category. accomplishment of the actions specified The cost impact figures discussed Note 1: This AD applies to each airplane in the service bulletin is intended to above are based on assumptions that no identified in the preceding applicability adequately address the identified unsafe operator has yet accomplished any of provision, regardless of whether it has been modified, altered, or repaired in the area condition. the LFV classified this the proposed requirements of this AD subject to the requirements of this AD. For service bulletin as mandatory and action, and that no operator would airplanes that have been modified, altered, or issued Swedish airworthiness directive accomplish those actions in the future if repaired so that the performance of the SAD No. 1–143, dated July 2, 1999, in this AD were not adopted. requirements of this AD is affected, the owner/operator must request approval for an order to assure the continued Regulatory Impact airworthiness of these airplanes in alternative method of compliance in Sweden. The regulations proposed herein accordance with paragraph (e) of this AD. The Saab service bulletin references would not have substantial direct effects The request should include an assessment of Adams Rite Aerospace Service Letter on the States, on the relationship the effect of the modification, alteration, or repair on the unsafe condition addressed by General SL–01, dated April 6, 1999, as between the national government and the States, or on the distribution of this AD; and, if the unsafe condition has not an additional source of service been eliminated, the request should include information to accomplish the power and responsibilities among the specific proposed actions to address it. various levels of government. Therefore, inspection. Compliance: Required as indicated, unless in accordance with Executive Order FAA’s Conclusions accomplished previously. 12612, it is determined that this To prevent the power levers from binding These airplane models are proposal would not have sufficient due to the backing our of screws that secure manufactured in Sweden and are type federalism implications to warrant the the solenoid bracket within the flight idle certificated for operation in the United preparation of a Federalism Assessment. stop assembly, which could result in the
VerDate 18-JUN-99 17:00 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\13SEP1.XXX pfrm07 PsN: 13SEP1 49420 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules malfunction of the flight idle stop Special Flight Permits Attention: Rules Docket No. 98–NM– mechanism and the inability to move the (f) Special flight permits may be issued in 205–AD, 1601 Lind Avenue, SW., power levers to flight idle, accomplish the accordance with sections 21.197 and 21.199 Renton, Washington 98055–4056. following: of the Federal Aviation Regulations (14 CFR Comments may be inspected at this Inspection 21.197 and 21.199) to operate the airplane to location between 9:00 a.m. and 3:00 a location where the requirements of this AD p.m., Monday through Friday, except (a) Within 800 flight hours after the can be accomplished. effective date of this AD, perform a Federal holidays. Note 5: The subject of this AD is addressed borescopic inspection of the control quadrant The service information referenced in in Swedish airworthiness directive SAD No. for loose screws, in accordance with Saab 1–143, dated July 2, 1999. the proposed rule may be obtained from Service Bulletin 340–76–043, Revision 01, Airbus Industrie, 1 Rond Point Maurice dated July 29, 1999. If no loose screws are Issued in Renton, Washington, on September 7, 1999. Bellonte, 31707 Blagnac Cedex, France. found, repeat the inspection thereafter at This information may be examined at D. L. Riggin, intervals not to exceed 800 flight hours, until the FAA, Transport Airplane Acting Manager, Transport Airplane the requirements of paragraph (c) are Directorate, 1601 Lind Avenue, SW., accomplished. Directorate, Aircraft Certification Service. Renton, Washington. Note 2: Saab Service Bulletin 340–76–043, [FR Doc. 99–23743 Filed 9–10–99; 8:45 am] FOR FURTHER INFORMATION CONTACT: dated July 2, 1999, references Adams Rite BILLING CODE 4910±12±D Aerospace Service Letter General SL–01, Norman B. Martenson, Manager, dated April 6, 1999, as an additional source International Branch, ANM–116, FAA, of service information to accomplish the DEPARTMENT OF TRANSPORTATION Transport Airplane Directorate, 1601 inspection. Lind Avenue, SW., Renton, Washington Note 3: Inspections and replacements Federal Aviation Administration 98055–4056; telephone (425) 227–2110; accomplished prior to the effective date of fax (425) 227–1149. 14 CFR Part 39 this AD in accordance with Saab Service SUPPLEMENTARY INFORMATION: Bulletin 340–76–043, dated July 2, 1999, are [Docket No. 98±NM±205±AD] considered acceptable for compliance with Comments Invited the applicable action specified in this RIN 2120±AA64 amendment. Interested persons are invited to Airworthiness Directives; Airbus Model participate in the making of the Corrective Action A300, A310, and A300±600 Series proposed rule by submitting such (b) If any loose screw is found during any Airplanes written data, views, or arguments as inspection performed in accordance with they may desire. Communications shall paragraph (a) of this AD, prior to further AGENCY: Federal Aviation identify the Rules Docket number and flight, replace the exiting control quadrant Administration, DOT. be submitted in triplicate to the address with a modified control quadrant in ACTION: Notice of proposed rulemaking specified above. All communications accordance with Saab Service Bulletin 340– (NPRM). received on or before the closing date 76–043, dated July 2, 1999. for comments, specified above, will be Terminating Action SUMMARY: This document proposes the considered before taking action on the (c) Within 8,000 flight hours or 6 years supersedure of an existing airworthiness proposed rule. The proposals contained after the effective date of this AD, whichever directive (AD), applicable to certain in this notice may be changed in light occurs earlier: Replace the existing control Airbus Model A300 series airplanes, of the comments received. quadrant with a modified control quadrant in that currently requires certain changes Comments are specifically invited on accordance with Saab Service Bulletin 340– to the procedures in the Airplane Flight the overall regulatory, economic, 76–043, dated July 2, 1999. Such replacement Manual (AFM) related to operation of environmental, and energy aspects of constitutes terminating action for the the emergency lighting system. This the proposed rule. All comments repetitive inspections required by paragraph action would require modification of the (a) of this AD. submitted will be available, both before emergency lighting system and a and after the closing date for comments, Spares revision to the AFM to ensure the in the Rules Docket for examination by (d) As of the effective date of this AD, no preservation of the airplane batteries. interested persons. A report person shall install, on any airplane, a This proposal would also provide, for summarizing each FAA-public contact control quadrant with a part number and certain airplanes, terminating action for concerned with the substance of this reference letter combination other than the the existing AFM revision, and proposal will be filed in the Rules following: part number 53082 and reference replacement with a different AFM Docket. letter A revision. This proposal would also Commenters wishing the FAA to Alternative Methods of Compliance expand the applicability to include acknowledge receipt of their comments certain Model A310 and A300–600 (e) An alternative method of compliance or submitted in response to this notice adjustment of the compliance time that series airplanes. This proposal is must submit a self-addressed, stamped provides an acceptable level of safety may be prompted by issuance of mandatory postcard on which the following used if approved by the Manager, continuing airworthiness information by statement is made: ‘‘Comments to International Branch, ANM–116, FAA, a foreign civil airworthiness authority. Docket Number 98–NM–205–AD.’’ The Transport Airplane Directorate. Operations The actions specified by the proposed postcard will be date stamped and shall submit their requests through an AD are intended to ensure that the returned to the commenter. appropriate FAA Principal Maintenance emergency lighting is available for Inspector, who may add comments and then evacuation in an emergency situation. Availability of NPRMs send it to the, Manager, International Branch, DATES: ANM–116. Comments must be received by Any person may obtain a copy of this October 13, 1999. Note 4: Information concerning the NPRM by submitting a request to the existence of approved alternative methods of ADDRESSES: Submit comments in FAA, Transport Airplane Directorate, compliance with this AD, if any, may be triplicate to the Federal Aviation ANM–114, Attention: Rules Docket No. obtained from the International Branch, Administration (FAA), Transport 98–NM–205–AD, 1601 Lind Avenue, ANM–116. Airplane Directorate, ANM–114, SW., Renton, Washington 98055–4056.
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Discussion acceptable means of compliance with satisfy the FAA requirements for On August 8, 1988, the FAA issued French airworthiness directive 89–107– emergency lighting as specified in AD 88–18–01, amendment 39–5998 (53 096(B)R4, dated August 13, 1997, which section 25.812 of the Federal Aviation FR 30975, August 17, 1988), applicable was issued to ensure the continued Regulations (14 CFR part 25). Therefore, to certain Airbus Model A300 series airworthiness of these airplanes in Airbus produced a set of service airplanes, to require certain changes to France. bulletins that modified the system in such a manner that it would comply the procedures in the FAA-approved Applicability of Proposed AD Airplane Flight Manual (AFM) related with the FAA requirements. However, The applicability of the existing AD the modification specified in the service to operation of the emergency lighting has been expanded in this proposed AD system. That action was prompted by bulletins specified in this proposed AD to correspond to that of the French requires that an AFM change be pilot reports that the emergency lighting airworthiness directive. system did not illuminate with loss of introduced that would ensure that, in AC power, and that the AFM did not FAA’s Conclusions the event of the loss of both engines or both engine electrical generators, the contain compensating procedures which These airplane models are would ensure that the lights would be flightcrew would take the necessary manufactured in France and are type action to ensure that emergency lighting turned on by the flightcrew prior to the certificated for operation in the United need for an emergency evacuation. The would be available when needed. The States under the provisions of section modification specified in the service requirements of that AD are intended to 21.29 of the Federal Aviation ensure that emergency lighting for bulletins mandated by the French Regulations (14 CFR 21.29) and the airworthiness directive does not require evacuation of the airplane’s occupants applicable bilateral airworthiness would be provided in an emergency the AFM changes. The service bulletins agreement. Pursuant to this bilateral proposed to be required by this AD when the airplane’s normal AC power is airworthiness agreement, the DGAC has interrupted. action and those mandated by the kept the FAA informed of the situation French airworthiness directive are In the preamble to AD 88–18–01, the described above. The FAA has FAA indicated that the actions required different, but they address the same examined the findings of the DGAC, unsafe condition. by that AD were considered ‘‘interim reviewed all available information, and action’’ and that further rulemaking determined that AD action is necessary Cost Impact action was being considered. The FAA for products of this type design that are now has determined that further certificated for operation in the United There are approximately 157 rulemaking action is indeed necessary, States. airplanes of U.S. registry that would be and this proposed AD follows from that affected by this proposed AD. determination. Explanation of Requirements of The actions that are currently Proposed Rule required by AD 88–18–01, and retained Actions Since Issuance of Previous Rule Since an unsafe condition has been in this proposed AD, take approximately Since the issuance of that AD, the identified that is likely to exist or 1 work hour per airplane to accomplish, manufacturer has developed new develop on other airplanes of the same at an average labor rate of $60 per work service information that addresses the type design registered in the United hour. Based on these figures, the cost unsafe condition. States, the proposed AD would impact of the currently required actions Explanation of Relevant Service supersede AD 88–18–01 to continue to on U.S. operators is estimated to be $60 Information require certain changes to the Model per airplane. A300 AFM until the emergency lighting The modification that is proposed in Airbus has issued Service Bulletins system is modified. The proposed AD this AD action would take A300–33–0119 (for Model A300 series would also require, for all affected approximately 18 work hours per airplanes), A310–33–2025 (for Model airplanes, modification of the airplane to accomplish, at an average A310 series airplanes), and A300–33– emergency lighting system and a labor rate of $60 per work hour. 6020 (for Model A300–600 series revision to the AFM procedures in order Required parts would cost airplanes); all dated March 1, 1993; and to preserve battery power. This approximately $500 per airplane. Based A300–33–6013, dated March 30, 1989 proposed AD would provide, for certain on these figures, the cost impact of the (for Model A300–600 series airplanes). airplanes, terminating action for the proposed modification of this AD on These service bulletins describe existing AFM revision, and replacement U.S. operators is estimated to be procedures for modification of the with a different AFM revision. $248,060, or $1,580 per airplane. wiring of the emergency lighting system. The two service bulletins for Model Difference Between Proposed Rule and The AFM revision that is proposed in A300–600 series airplanes apply to Foreign AD this AD action would take different groups of airplanes. Airbus has The proposed AD would differ from approximately 1 work hour per airplane also issued temporary revisions 3.02.00/ the parallel French airworthiness to accomplish, at an average labor rate 7, 3.02.00/8, and 3.02.00/11 to the directive in that the French of $60 per work hour. Based on these applicable AFM to ensure the airworthiness directive mandates a figures, the cost impact of the proposed preservation of the airplane batteries. different set of service bulletins than AFM revision of this AD on U.S. Accomplishment of the actions this proposed AD. The DGAC has operators is estimated to be $9,420, or specified in the service bulletins (and approved the service bulletins that the $60 per airplane. incorporation of the AFM temporary FAA proposes to require as an The cost impact figures discussed revisions) is intended to adequately equivalent means of satisfying the above are based on assumptions that no address the identified unsafe condition. requirements of the French operator has yet accomplished any of The Direction Ge´ne´rale de l’Aviation airworthiness directive, however. The the current or proposed requirements of Civile (DGAC), which is the modifications described by the service this AD action, and that no operator airworthiness authority for France, bulletins mandated by the French would accomplish those actions in the classified these service bulletins as an airworthiness directive do not fully future if this AD were not adopted.
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Regulatory Impact otherwise modified, altered, or repaired in 6013, dated March 30, 1989: Airbus Service the area subject to the requirements of this Bulletin A300–33–6013, dated March 30, The regulations proposed herein AD. For airplanes that have been modified, would not have substantial direct effects 1989. altered, or repaired so that the performance (4) For Model A300–600 series airplanes on the States, on the relationship of the requirements of this AD is affected, the listed in Airbus Service Bulletin A300–33– between the national government and owner/operator must request approval for an 6020, dated March 1, 1993: Airbus Service the States, or on the distribution of alternative method of compliance in Bulletin A300–33–6020, dated March 1, power and responsibilities among the accordance with paragraph (d) of this AD. 1993. various levels of government. Therefore, The request should include an assessment of the effect of the modification, alteration, or AFM Revisions in accordance with Executive Order repair on the unsafe condition addressed by 12612, it is determined that this this AD; and, if the unsafe condition has not (c) Prior to further flight following proposal would not have sufficient been eliminated, the request should include accomplishment of the modification required federalism implications to warrant the specific proposed actions to address it. by paragraph (b) of this AD: Revise the FAA- preparation of a Federalism Assessment. Compliance: Required as indicated, unless approved Airplane Flight Manual (AFM) by For the reasons discussed above, I accomplished previously. adding the temporary revision (TR) specified certify that this proposed regulation (1) To ensure that the emergency lighting is in paragraph (c)(1), (c)(2), or (c)(3), as is not a ‘‘significant regulatory action’’ available for evacuation in an emergency applicable, of this AD. situation, accomplish the following: under Executive Order 12866; (2) is not (1) For Model A300 series airplanes: Insert a ‘‘significant rule’’ under the DOT Restatement of Requirements of AD 88–18– AFM TR 3.02.00/7. After accomplishment of Regulatory Policies and Procedures (44 01, Amendment 39–5998 the modification required by paragraph (b) of FR 11034, February 26, 1979); and (3) if AFM Revision this AD, the TR required by paragraph (a) of promulgated, will not have a significant this AD may be removed [paragraph (a) (a) For Model A300 series airplanes economic impact, positive or negative, (excluding Model A300–600 series applies to Model A300 series airplanes only]. on a substantial number of small entities airplanes): Within 10 days after September 2, (2) For Model A310 series airplanes: Insert under the criteria of the Regulatory 1988 (the effective date of AD 88–18–01, AFM TR 3.02.00/8. Flexibility Act. A copy of the draft amendment 39–5998), the following (3) For Model A300–600 series airplanes: regulatory evaluation prepared for this procedures must be applied and a copy of Insert AFM TR 3.02.00/11. action is contained in the Rules Docket. this AD or the changes indicated below must Alternative Methods of Compliance A copy of it may be obtained by be inserted in the appropriate Section of the contacting the Rules Docket at the Airplane Flight Manual (AFM), as indicated (d) An alternative method of compliance or below: location provided under the caption adjustment of the compliance time that (1) This sentence is to be inserted facing 3– provides an acceptable level of safety may be ADDRESSES. 02–00 page 11: used if approved by the Manager, List of Subjects in 14 CFR Part 39 ‘‘EMERGENCY PROCEDURES-DITCHING When ditching, the MIN CABIN LT International Branch, ANM–116, FAA, Air transportation, Aircraft, Aviation selector (if installed) must be switched ON.’’ Transport Airplane Directorate. Operators safety, Safety. (2) This sentence is to be inserted facing 3– shall submit their requests through an 02–00 page 12: appropriate FAA Principal Operations The Proposed Amendment ‘‘EMERGENCY PROCEDURES-EMERGENCY Inspector, who may add comments and then Accordingly, pursuant to the EVACUATION send it to the Manager, International Branch, authority delegated to me by the When the procedure EMERGENCY ANM–116. EVACUATION is applied, the EMER EXIT LT Administrator, the Federal Aviation selector must be selected ‘ON’ after parking Note 2: Information concerning the Administration proposes to amend part brake is ON.’’ existence of approved alternative methods of 39 of the Federal Aviation Regulations (3) This sentence is to be inserted facing 4– compliance with this AD, if any, may be (14 CFR part 39) as follows: 03–00 page 1: obtained from the International Branch, ‘‘NORMAL PROCEDURES-TAXI ANM–116. PART 39ÐAIRWORTHINESS Prior to push back, the MIN CABIN LT DIRECTIVES selector (if installed) must be switched ‘ON’ Special Flight Permits and remain ON until gear retraction.’’ (e) Special flight permits may be issued in 1. The authority citation for part 39 (4) This sentence is to be inserted facing 4– accordance with sections 21.197 and 21.199 continues to read as follows: 03–00 page 4: of the Federal Aviation Regulations (14 CFR ‘‘NORMAL PROCEDURES-LANDING Authority: 49 U.S.C. 106(g), 40113, 44701. 21.197 and 21.199) to operate the airplane to Before landing, the MIN CABIN LT selector a location where the requirements of this AD § 39.13 [Amended] (if installed) must be switched ‘ON’ and can be accomplished. 2. Section 39.13 is amended by should remain ON until engine shutdown or removing amendment 39–5998 (53 FR until parked.’’ Note 3: The subject of this AD is addressed 30975, August 17, 1988), and by adding New Requirements of This AD in French airworthiness directive 89–107– 096(B)R4, dated August 13, 1997. a new airworthiness directive (AD), to Modification read as follows: Issued in Renton, Washington, on (b) For all airplanes: Within 6 months after September 7, 1999. Airbus Industrie: Docket 98–NM–205–AD. the effective date of this AD, modify the D.L. Riggin, Supersedes AD 88–18–01, Amendment emergency lighting system, in accordance 39–5998. with the applicable service bulletin specified Acting Manager, Transport Airplane Applicability: Model A300 and A310 series in paragraph (b)(1), (b)(2), (b)(3), or (b)(4), of Directorate, Aircraft Certification Service. airplanes, except those on which Airbus this AD. [FR Doc. 99–23742 Filed 9–10–99; 8:45 am] Modification 10002 has been accomplished; (1) For Model A300 series airplanes: BILLING CODE 4910±13±P and Model A300–600 series airplanes, except Airbus Service Bulletin A300–33–0119, those on which Airbus Modification 7738 or dated March 1, 1993. 10002 has been accomplished; certificated in (2) For Model A310 series airplanes: any category. Airbus Service Bulletin A310–33–2025, Note 1: This AD applies to each airplane dated March 1, 1993. identified in the preceding applicability (3) For Model A300–600 series airplanes provision, regardless of whether it has been listed in Airbus Service Bulletin A300–33–
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DEPARTMENT OF THE TREASURY The ACPA contains 14 sections, 13 of Inapplicability of the Regulatory which are substantive in nature. Section Flexibility Act, and Executive Order Customs Service 14 of the ACPA directs the Secretary of 12866 the Treasury to prescribe such 19 CFR Part 141 regulations or amendments to existing Pursuant to provisions of the RIN 1515±AC15 regulations as may be necessary to Regulatory Flexibility Act (5 U.S.C. 601 implement and enforce particular et seq.), it is certified that this Anticounterfeiting Consumer provisions of the ACPA. amendment, if adopted, will not have a Protection Act: Customs Entry This document concerns section 12 of significant economic impact on a Documentation the ACPA, which amends section 484(d) substantial number of small entities, as AGENCY: Customs Service, Treasury. of the Tariff Act of 1930 (19 U.S.C. the amendment concerns identifying information regarding imported ACTION: Notice of proposed rulemaking. 1484(d)) concerning Customs entry documentation. The amendment to merchandise of a sort that is already SUMMARY: This document proposes to section 484(d) adds a new provision maintained by the importer. amend the Customs Regulations to authorizing the Secretary of the Accordingly, this amendment is not implement section 12 of the Treasury to require that entry subject to the regulatory analysis or Anticounterfeiting Consumer Protection documentation contain such other requirements of 5 U.S.C. 603 and Act of 1996 (ACPA), enacted by information as may be necessary to 604. This document does not meet the Congress to protect consumers and enable Customs to determine whether criteria for a ‘‘significant regulatory American businesses from counterfeit the imported merchandise bears an action’’ as specified in Executive Order copyrighted and trademarked products. infringing trademark on either the goods 12866. Section 12 of the ACPA concerns the or packaging in violation of section 42 content of entry documentation required of the Act of July 5, 1946 (commonly List of Subjects in 19 CFR Part 141 by Customs to determine whether the referred to as the ‘‘Trademark Act of imported merchandise or its packaging 1946’’ (15 U.S.C. 1124)), or any other Customs duties and inspection, Entry bears an infringing trademark. The applicable law. The amendment enables of merchandise, Foreign trade statistics, proposed regulatory provision requires Customs to identify shipments likely to Invoices, Packaging, Prohibited importers to provide on the invoice a contain counterfeit products that come merchandise, Release of merchandise, listing of all trademarks appearing on from locations where goods bearing a Reporting and recordkeeping imported merchandise and its particular mark are not legitimately requirements, Restricted merchandise packaging. The amendment is designed manufactured. (counterfeit goods), Trademarks, Trade to help Customs fight counterfeiting In this document Customs proposes to names. more effectively. implement the entry documentation Amendment to the Regulations DATES: Comments must be submitted by content requirement by amending November 12, 1999. paragraph (a)(3) of § 141.86, Customs For the reasons stated above, it is ADDRESSES: Written comments Regulations (19 CFR 141.86(a)(3)), proposed to amend part 141 of the (preferably in triplicate) may be which concerns the general information Customs Regulations (19 CFR part 141) addressed to the Regulations Branch, requirements of invoices, to specifically as set forth below: Office of Regulations and Rulings, U.S. require that importers provide on the Customs Service, Ronald Reagan invoice a listing of any trademark PART 141ÐENTRY OF MERCHANDISE Building, 1300 Pennsylvania Avenue, information appearing on imported NW, Washington, DC 20229. Comments merchandise and its packaging. This 1. The general authority citation for submitted may be inspected at the amendment is necessary because while part 141 continues to read as follows: Regulations Branch, Office of the current section requires information Authority: 19 U.S.C. 66, 1448, 1484, 1624. Regulations and Rulings, U.S. Customs regarding ‘‘marks, numbers, and Service, Ronald Reagan Building, 1300 symbols’’ to be set forth on the invoice, * * * * * Pennsylvania Avenue, NW, Suite 3000, it does not specify trademark 2. In § 141.86, paragraph (a)(3) is Washington, DC. information. revised to read as follows: FOR FURTHER INFORMATION CONTACT: Lou Comments Alfano, Commercial Enforcement, Office § 141.86 Contents of invoices and general of Field Operations, (202) 927–0005. Before adopting this proposed requirements. SUPPLEMENTARY INFORMATION: regulatory amendment as a final rule, (a) * * * consideration will be given to any Background written comments timely submitted to (3) A detailed description of the Finding that counterfeit products cost Customs. Comments submitted will be merchandise, including the name by American businesses an estimated $200 available for public inspection in which it is known; marks, numbers, and billion each year worldwide, Congress accordance with the Freedom of symbols under which it is sold by the enacted the Anticounterfeiting Information Act (5 U.S.C. 552), § 1.4 of seller or manufacturer to the trade in the Consumer Protection Act of 1996 the Treasury Department Regulations country of exportation; the grade or (ACPA) to make sure that Federal law (31 CFR 1.4), and § 103.11(b) of the quality of the merchandise; and a listing adequately addresses the scope and Customs Regulations (19 CFR of any trademarks appearing on the sophistication of modern counterfeiting. 103.11(b)), on regular business days merchandise or its components; together The provisions of the ACPA are between the hours of 9 a.m. and 4:30 with a listing of the marks, numbers, designed to provide important weapons p.m. at the Regulations Branch, Office of and any trademarks appearing on the in the fight against counterfeiters. On Regulations and Rulings, U.S. Customs July 2, 1996, the President signed the Service, Ronald Reagan Building, 1300 ACPA into law (Pub.L. 104–153, 110 Pennsylvania Avenue, NW, Washington, Stat. 1386). DC.
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Acting Deputy Assistant Secretary of the ranged from adverse economic Closure of the river for this event to Treasury consequences that were likely to result promote essentially a single sponsor’s [FR Doc. 99–23686 Filed 9–10–99; 8:45 am] from the river closure to possible commercial use of the river over BILLING CODE 4820±02±P violations of existing binational navigational use would set a precedent agreements between the United States that might lead to applications for more and Canada such events in the future, resulting in DEPARTMENT OF TRANSPORTATION 1. The Detroit and St. Clair River system hereafter called the Detroit River further restrictions to navigation. More Coast Guard Corridor, is a key international trade than that, though, a decision to close the route, that if closed, would adversely river to the commercial advantage of 33 CFR Part 165 affect the entire Great Lakes and restrict one sponsor gives that sponsor a material benefit that other sponsors do [CGD 09±99±007] access to other key economic ports. 2. The proposed closure appears to not get—an arbitrary and capricious Safety Zone, Detroit River contradict the Boundary Waters Treaty decision in favor of one person or group, of 1909 which states in part, ‘‘The made to the disadvantage and harm of AGENCY: Coast Guard, DOT. navigation of all boundary waters shall others. It isn’t fair. ACTION: Notice; withdrawal of proposed forever continue free and open for the 5. The proposed rulemaking does not rule. purposes of commerce to the inhabitants address fully the idea of just and to the ships, vessels and boats of compensation for the maritime SUMMARY: The Coast Guard is both countries equally.’’ The treaty goes withdrawing a notice of proposed community adversely affected by the on to establish a precedence to be action. Costs are difficult to calculate, rulemaking (NPRM) to establish a observed among the various uses temporary safety zone on the American especially hidden costs. A more detailed enumerated . . . for these waters.’’ agreement on compensation would need side of the Detroit River for the Windsor According to the treaty, ‘‘No use shall be to be worked out well in advance of any Can-AM Offshore Power Boat Race. The permitted which tends materially to such event. event sponsor withdrew his application conflict with or restrain any other use for safety reasons, and based on which is given preference over it in this The Coast Guard agrees with all these comments received by the Coast Guard, order of precedence: points of contention. Before the proposed rule was criticized and (1) Uses for domestic and sanitary withdrawing his permit application, the deemed not in the best interest of this purposes; event sponsor did not have the benefit vital international waterway. (2) Uses for navigation of the public comments in this matter or DATES: This proposed rule is withdrawn (3) Uses for power and irrigation.’’ an opportunity to address the issues effective July 30, 1999. As the term ‘‘domestic’’ is not defined, raised during the comment period. The ADDRESSES: Unless otherwise indicated, and recreational use is not spelled out Coast Guard appreciates all the efforts of documents referred to in this notice are or given priority in the treaty, decisions the regulated community in sharing its available for inspection or copying at on boundary water uses are in the views and will retain the public docket Marine Safety Office, Detroit between 7 purview of the International Joint for future use. Accordingly, the Coast a.m. and 4 p.m., Monday through Commission. Guard is withdrawing the notice of Friday, except Federal holidays. 3. Closure of the river for even a few proposed rulemaking and terminating FOR FURTHER INFORMATION CONTACT: hours has a ripple effect on commercial further rulemaking on this proposal. LTJG French, Coast Guard Marine Safety shipping in the Great Lakes that causes Based on the regulatory history of this Office Detroit, 110, at 313–568–9580. more than a minor inconvenience to event, the Coast Guard Captain of the SUPPLEMENTARY INFORMATION: vessels. Closure of any part of the Port Detroit will be reluctant to consider Detroit River Corridor presents safety Regulatory History proposed closures in any part of the issue for vessel operators related to Detroit River Corridor in the future. The On 3 May, 1999, the Coast Guard reduced speed and steerage. Compound Coast Guard will also work closely with published a notice of proposed that with closure of the Belle Isle Canadian Officials and the International rulemaking in the Federal Register (64 Anchorage and, for the prudent Joint Commission to ensure that all FR 23570–23571) that the American commercial mariner, you shut down the provisions of the Boundary Waters side of the Detroit River would be entire river system for up to six hours, closed for the Windsor Can-Am shutting down commercial navigation Treaty of 1909 are upheld. Offshore Race, which at the time was from Lake Erie to Lake Huron. Such a Dated July 30, 1999. scheduled to take place on August 22, closure would have a detrimental effect B. P. Hall, 1999. In the mean time, the Coast Guard not only on vessel operators, but also Commander, USCG, Acting Captain of the received notice from the event organizer pilots and terminal operators, with Port, Detroit. on June 4, 1999 of his intention not to impacts on the time sensitive nature of [FR Doc. 99–23718 Filed 9–10–99; 8:45 am] hold the race. The organizer noted delivering raw materials to Great lakes safety concerns resulting from recent ports and plants. BILLING CODE 4910±15±M fatal accidents in the Detroit river where 4. Race locations are variables that high currents and murky waters made can be controlled, so as not to impede
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ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: Regulation Development Section, Air AGENCY See the information provided in the Programs Branch (AR–18J), direct final rule which is published in Environmental Protection Agency, 40 CFR Part 52 the Rules section of this Federal Region 5, 77 West Jackson Boulevard, [TN 190±9930b; TN 196±9931b; FRL±6433± Register. Chicago, Illinois 60604. 3] Dated: August 13, 1999. Copies of the State submittal are A. Stanley Meiburg, available for inspection at: Regulation Approval and Promulgation of Acting Regional Administrator, Region 4. Development Section, Air Programs Implementation Plans, Tennessee: Branch (AR–18J), Environmental [FR Doc. 99–23192 Filed 9–10–99; 8:45 am] Approval of Revisions to the Protection Agency, Region 5, 77 West Tennessee State Implementation Plan BILLING CODE 6560±50±P Jackson Boulevard, Chicago, Illinois 60604. AGENCY: Environmental Protection Agency (EPA). ENVIRONMENTAL PROTECTION FOR FURTHER INFORMATION CONTACT: ACTION: Proposed rule. AGENCY Mark J. Palermo, Environmental Protection Specialist, Regulation SUMMARY: On March 17, 1997, and May 40 CFR Part 52 Development Section, Air Programs 8, 1997, the State of Tennessee, through Branch (AR–18J), Environmental [IL193±1b; FRL 6435±5] the Tennessee Department of Protection Agency, Region 5, 77 West Environment and Conservation (TDEC), Approval and Promulgation of Jackson Boulevard, Chicago, Illinois submitted revisions to the Tennessee Implementation Plan; Illinois 60604, (312) 886–6082. State Implementation Plan (SIP). The SUPPLEMENTARY INFORMATION: For revisions pertain to Sulfur Dioxide AGENCY: Environmental Protection additional information see the direct Emission Regulations for the New Agency (EPA). final rule published in the final rules Johnsonville and Copper Basin ACTION: Proposed rule. section of this Federal Register. Additional Control Areas. In the Rules section of this Federal SUMMARY: EPA is proposing to approve Dated: August 30, 1999. Register, EPA is approving the the July 9, 1999, Illinois site-specific Robert Springer, Tennessee State Plan submittal as a State Implementation Plan (SIP) Acting Regional Administrator, Region 5. direct final rule without prior proposal revision revising Volatile Organic [FR Doc. 99–23582 Filed 9–10–99; 8:45 am] because the Agency views this as a Compound (VOC) Reasonably Available BILLING CODE 6560±50±M noncontroversial submittal and Control Technology (RACT) anticipates no adverse comments. A requirements for Sun Chemical detailed rationale for the approval is set Corporation in Northlake, Illinois. The ENVIRONMENTAL PROTECTION forth in the direct final rule. If no SIP revision exempts 17 resin storage AGENCY adverse comments are received, no tanks from bottom or submerged fill further activity is contemplated. If EPA pipe requirements, subject to certain 40 CFR Part 52 receives adverse comments, the direct conditions. [KY±75±1±9910b; KY±97±1±9911b; FRL± final rule will be withdrawn and all In the final rules section of this 6436±6] public comments received will be Federal Register, the EPA is approving addressed in a subsequent final rule the State’s request as a direct final rule Approval and Promulgation of based on this proposed rule. EPA will without prior proposal because EPA Implementation Plans not institute a second comment period views this action as noncontroversial on this action. and anticipates no adverse comments. A Kentucky: Approval of Revisions to the Louisville State Implementation Plan DATES: Written comments must be detailed rationale for approving the received on or before October 13, 1999. State’s request is set forth in the direct AGENCY: Environmental Protection ADDRESSES: Written comments should final rule. The direct final rule will Agency (EPA). become effective without further notice be addressed to Scott Martin at the EPA ACTION: Proposed rule. Regional Office listed below. Copies of unless the Agency receives relevant the documents relevant to this proposed adverse written comment on this action. SUMMARY: The EPA is proposing to rule are available for public inspection Should the Agency receive such approve the Air Pollution Control during normal business hours at the comment, it will publish a final rule District of Jefferson County portion of following locations. The interested informing the public that the direct final the State Implementation Plan (SIP) persons wanting to examine these rule will not take effect and such public submitted by the Commonwealth of documents should make an comment received will be addressed in Kentucky through the Natural Resources appointment with the appropriate office a subsequent final rule based on this and Environmental Protection Cabinet at least 24 hours before the day of the proposed rule. If no adverse written on November 12, 1993, and amended on visit. comments are received, the direct final April 5, 1994, and June 30, 1997, which Environmental Protection Agency, rule will take effect on the date stated includes the 15 Percent Rate-of-Progress Region 4, Air Planning Branch, 61 in that document and no further activity Plan (15 percent plan) for the Louisville Forsyth Street, SW, Atlanta, Georgia will be taken on this proposed rule. EPA moderate ozone nonattainment area. 30303–3104. does not plan to institute a second This submittal was made to meet the 15 Division of Air Pollution Control, comment period on this action. Any percent reduction in emissions of Tennessee Department of Environment parties interested in commenting on this volatile organic compounds (VOCs) and Conservation, L & C Annex, 9th action should do so at this time. requirement of section 182(b)(1)(A) of Floor, 401 Church Street, Nashville, DATES: Written comments must be the Clean Air Act, as amended in 1990 Tennessee 37243–1531. received on or before October 13, 1999. (CAA). FOR FURTHER INFORMATION CONTACT: ADDRESSES: Written comments should In the Rules section of this Federal Scott Martin at (404) 562–9036. be mailed to: J. Elmer Bortzer, Chief, Register, EPA is approving the
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Kentucky Plan submittal as a direct final ACTION: Proposed rule; extension of text of the document is available for rule without prior proposal because the comment period. inspection and copying during normal Agency views this as a noncontroversial business hours in the FCC Reference submittal and anticipates no adverse SUMMARY: In this document, the Center, 445 12th Street, SW, comments. A detailed rationale for the Commercial Wireless Division (the Washington, DC and also may be approval is set forth in the direct final ‘‘Division’’) of the Federal purchased from the Commission’s copy rule. If no adverse comments are Communications Commission gives contractor, International Transcription received, no further activity is notice that the Commission granted in Services, (202) 857–3800, 445 12th contemplated. If EPA receives adverse part motions for extension of time to file Street, SW, CY–B400, Washington, DC comments, the direct final rule will be comments and reply comments on the 20554. The document is also available withdrawn and all public comments Notice of Proposed Rulemaking and via the Internet at
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Rulemaking Proceedings, 63 FR 24,121, List of Subjects outside of the envelope, ‘‘Comments on May 1, 1998. Proposed Rule for Amendment 12.’’ 47 CFR Parts 1 and 51 Comments filed through the ECFS can Comments regarding burden-hour Communications common carriers, be sent as an electronic file via the estimates for collection-of-information Telecommunications. Internet to
VerDate 18-JUN-99 17:00 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\13SEP1.XXX pfrm07 PsN: 13SEP1 49428 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules and red hake. Geographic areas that are strengtheners; (11) restrict the transfer of that overfished fisheries be rebuilt closed to fishing and minimum mesh small mesh multispecies; (12) provide a within a period not to exceed 10 years. sizes that are inefficient at catching default measure to be implemented at As a result of this preliminary review, whiting and red hake provided some the beginning of year 4 if management NMFS is returning the limited access level of protection for whiting and red measures do not meet the fishing program to the Council in its entirety. hake. However, directed whiting mortality objectives; (13) designate To return only the two problematic fisheries in the Southern New England Essential Fish Habitat for offshore hake; portions would alter significantly the Regulated Mesh Area (SNE RMA) and and (14) establish a Whiting Monitoring limited access program proposed in exempted or experimental fisheries in Committee (WMC). Amendment 12, thus changing the the Gulf of Maine/Georges Bank After a preliminary review of limited access program that was Regulated Mesh Area (GOM/GB RMA) Amendment 12, NMFS found that the approved by the majority of the voting have continued to produce high levels limited access program would be members of the Council. Under section of whiting and red hake catches. In inconsistent with national standard 4 304(c)(3) of the Magnuson-Stevens Act, anticipation of additional restrictions to and section 304(e) of the Magnuson- the Secretary of Commerce may not manage whiting, the Council established Stevens Act. The qualification criteria implement a limited access system that September 9, 1996, as the control date allow vessels that participated in either has not been approved by the majority for whiting and announced that it could the Gulf of Maine whiting raised of the voting members of the Council. limit future access to the whiting fishery footrope or separator trawl experimental Therefore, NMFS’s only option in order through a moratorium on whiting fisheries to qualify for a limited access to avoid implementing the two permits. permit with 1,000 lb (453.6 kg) of problematic measures of the limited In September 1997, NMFS’ report to landings over 3 years, rather than 50,000 access program is to exclude the limited Congress on the ‘‘Status of Fisheries of lb (22,680 kg) of landings over 18 years. access portion of Amendment 12 from the United States’’ concluded that red Vessels would be subject to the same regulations proposed for public hake and the Southern stock of whiting restrictions regardless of how the vessel comment. The open access permit are overfished and that the Northern qualified for the permit. This portion of category for small mesh multispecies is stock of whiting is approaching an the proposed limited access program is also omitted from this regulation overfished condition. In response, the inconsistent with national standard 4 because it would serve no purpose Council began the development of because different sectors of the industry without the limited access permit categories. Amendment 12 to specifically address could qualify for the same level of overfishing. fishing with different landings Amendment 12 proposes to end Proposed Measures requirements. Further, vessels may have overfishing in 4 years. Management The ‘‘Open Access Nonregulated measures in years 1, 2, and 3 would be been excluded from participation in Multispecies Permit’’ would be renamed the same, unless changed through experimental fisheries because NMFS the ‘‘Open Access Multispecies Permit’’ framework action or amendment. If the imposed participation restrictions and to avoid confusion that would result reduction in fishing mortality and these restrictive controls may have from the elimination of the definition of exploitation during the first 3 years is discouraged vessels from participating. ‘‘Nonregulated Multispecies.’’ Vessels not sufficient to meet the goals of The limited access program also currently issued ‘‘Open Access Amendment 12, a fourth year default proposes that at the beginning of year 6 Nonregulated Multispecies Permits’’ measure has been proposed to achieve of the Amendment, unless otherwise would not be required to acquire a new the target fishing mortality rates and end extended, vessels would be eligible for ‘‘Open Access Multispecies Permit,’’ but overfishing. limited access small mesh multispecies rather would receive a renamed permit Amendment 12 proposes to do the permits without having to meet the when they apply for permit renewal at following: (1) Establish new overfishing landings criteria, provided the vessels the end of the fishing year in which this definitions for two stocks of silver hake, possessed a limited access multispecies regulation is implemented. The two stocks of red hake, and offshore permit that was valid on the date the restrictions pertaining to the ‘‘Open hake (Merluccius albidus); (2) specify final rule for this amendment is Access Nonregulated Multispecies Optimum Yield (OY) for silver hake published and that continues to be valid Permit’’ would remain in effect for these (whiting), red hake and offshore hake; in year 6. The sunset provision may give vessels. (3) identify whiting, red hake, and vessel owners who would not qualify Amendment 12 proposes to change offshore hake as ‘‘small mesh for the limited access permit unrealistic the season for the Cultivator Shoal multispecies’’; (4) identify geographic expectations that they may be able to Whiting Fishery by decreasing its areas for potential use in management of participate in the whiting (small mesh duration by 1 month. The Cultivator different stocks of whiting; (5) multispecies) fisheries as a limited Shoal Whiting Fishery season would implement a moratorium on commercial access vessel when it is unlikely to begin on June 15 and end on September permits to fish for whiting, red hake and happen. Further, there has been no 30 of each year. Currently, the fishery offshore hake (small mesh analysis of the potential effects of such ends on October 31 each year. The multispecies); (6) implement an open effort on the rebuilding schedule. reduction in fishing effort by the access permit category to allow an Amendment 12 proposes to end elimination of the month of October is incidental catch; (7) implement new overfishing in year 4 and to rebuild the expected to contribute toward measures for the Cultivator Shoal stocks of whiting and red hake within Amendment 12’s overall goal of a 63– Whiting Fishery; (8) initiate 10 years. Because it is uncertain that the percent reduction in whiting management measures for all areas fishery could sustain additional vessel exploitation across all stock areas. excluding the Cultivator Shoal Whiting participation just 1 year beyond the Vessels enrolled in the Cultivator Fishery based on mesh size/possession target date to end overfishing, Shoal Whiting Fishery would be limit categories; (9) add measures which rebuilding goals may be compromised. restricted to a minimum mesh size of 3 may be implemented by a framework This measure would, therefore, be in (7.62 cm) subject to applicable adjustment; (10) implement codend inconsistent with section 304(e) of the codend restrictions. Vessels enrolled in specifications and restrictions on net Magnuson-Stevens Act that specifies the fishery would also be restricted to a
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.001 pfrm08 PsN: 13SEP1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules 49429 possession limit of 30,000 lb (13,608 kg) one of the minimum mesh size and other small mesh fisheries to continue of whiting and offshore hake. Vessels corresponding possession limit with their use while maintaining the would be allowed to fish in areas other categories. To request a letter of expected conservation benefits by than the Cultivator Shoal Whiting authorization, vessel owners would be prohibiting the use of net strengtheners Fishery area while enrolled in this required to call the Northeast Region in directed small mesh multispecies fishery but would be subject to the more Permit Office during normal business fisheries. restrictive mesh and possession hours and provide the vessel name, On May 1, 2002 (the beginning of year measures regardless of where they fish. owner name, permit number, the 4 under the schedule proposed by These measures allow participants in desired mesh size/possession limit Amendment 12), if target mortality and the Cultivator Shoal Whiting Fishery category and the period of time that the biomass objectives have not been flexibility to fish in other whiting areas vessel would be enrolled. Since letters achieved and if the Council and NMFS when whiting are not concentrated on of authorization would be effective on have not implemented other adequate the Cultivator Shoal. The possession the date of receipt vessel owners should management measures, default limit would serve to eliminate allow appropriate processing and mail measures would ensure that the fishing extremely large whiting trips that time. To withdraw from a category, mortality objectives of Amendment 12 contribute to excessive fishing mortality vessel owners must call the Northeast are achieved. The default measures in the area, yet allow for economically Region Permit Office. Withdrawals would include the following: feasible trips. would be effective upon date of request. A regulated mesh area to be defined prior Amendment 12 would implement Amendment 12 proposes that a vessel to the effective date of the default measure, whiting and offshore hake possession issued a Federal multispecies permit with a 3–in (7.62 cm) minimum mesh limits for all areas excluding the would be allowed to transfer small mesh requirement for all fishing activities (with the Cultivator Shoal Whiting Fishery. multispecies at sea up to 500 lb (226.8 exception of fisheries with larger minimum Vessels issued a Federal multispecies kg), provided it has a letter of mesh sizes). In the absence of a defined small permit would be allowed the following authorization to transfer fish at sea on mesh multispecies regulated mesh area, the possession limits of whiting and board the vessel. A total of 500 lb (226.8 default measures would be effective offshore hake: up to 3,500 lb (1,588 kg), kg) would automatically be deducted throughout the range of the species. Vessels participating in any fishery would be while using a mesh size less than, but from the vessel’s possession limit required to use the minimum mesh or larger not equal to 2.5 in (6.35 cm); up to 7,500 regardless of the actual amount unless fishing in a fishery that has been lb (3,402 kg), while using a codend transferred. Vessels receiving the small determined exempt from the minimum mesh mesh size of 2.5 in (6.35 cm) or larger, mesh multispecies at sea would be size. provided the vessel has a letter of required to have a receipt for the A possession limit of whiting and offshore authorization from the Administrator, transferred fish. The allowance for hake up to 10,000 lb (4,536 kg) for vessels Northeast Region, NMFS (Regional transfers at sea would provide possessing a Federal multispecies permit Administrator) on board; and up to continued flexibility for vessels that would be allowed. A possession limit of 100 lb (45.36 kg) of 30,000 lb (13,608 kg), while using a have traditionally purchased bait from whiting and offshore hake for vessels codend mesh size of 3 in (7.62 cm) or other vessels while in the course of participating in an exempted fishery would larger, provided the vessel has a letter targeting such other species as lobster or be allowed. of authorization from the Regional tuna. A provision to allow a vessel to fish with Administrator on board. Letters of Amendment 12 proposes new codend mesh less than 3 in (7.62 cm), if fishing is authorization for these mesh size specifications for vessels fishing for determined to be exempted from the categories would be valid for a small mesh multispecies. For vessels minimum mesh size by demonstrating a minimum of 30 days. However, vessels less than or equal to 60 ft (18.28 m) in bycatch of small mesh multispecies that is less than 10 percent of total catch. could withdraw from the minimum length overall, the mesh size would be mesh size category after a minimum of determined by measuring the first 50 Analysis of these management 7 days, but they would be subject to a meshes (100 bars in the case of square measures indicated that it may be very possession limit of 3,500 lb (1,588 kg) mesh) from the terminus of the net. For difficult to achieve the conservation regardless of the mesh size in use and a vessel greater than 60 ft (18.28 m) in objectives of the proposed amendment would not be able to re-enter the length overall, the mesh size would be without decreasing the amount of original authorization category for the determined by measuring the first 100 whiting retained or discarded with remainder of the original 30 days. meshes (200 bars in the case of square mesh less than 2.5 in (6.35 cm). Vessels that do not receive a letter of mesh) from the terminus of the net. This Therefore, the default measures authorization would automatically be restriction would not apply to vessels described above further increase the restricted to a possession limit of 3,500 using less than 2.5–in (6.35 cm) mesh likelihood that the incidental, as well as lb (1,588 kg) of whiting and offshore and being subject to other codend the directed, catch of small mesh hake, regardless of the mesh size in use. specifications specified in this part. multispecies will be reduced. Amendment 12 proposes that while The proposed management measures Additional measures that can be participating in the Northern shrimp controlling mesh size are intended to implemented through the framework fishery, to retain whiting and offshore provide an incentive for vessels to use procedure have been proposed under hake, a vessel would be required to be larger mesh to fish for small mesh Amendment 12 to allow future issued a Federal multispecies permit multispecies. Allowance of several adjustments for the small mesh and that vessels would be allowed a mesh sizes accounts for differences in multispecies. The following measures possession limit of whiting and offshore the characteristics of the various small that can be implemented through the hake equal to the amount of Northern mesh fisheries (such as squid and framework procedure have been shrimp on board up to 3,500 lb (1,588 herring) which exist. proposed: A total allowable landings kg). Amendment 12 proposes to allow limit (and appropriate seasonal This proposed rule includes vessels using mesh less than 2.5 in (6.35 adjustments) for vessels fishing in the instructions for vessel owners to follow cm) to use net strengtheners. This northern area requiring that the fishery in order for them to receive the required provision allows vessels which have be closed when the limit is reached; letters of authorization to participate in traditionally used net strengtheners in modifications or adjustments to whiting
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.001 pfrm08 PsN: 13SEP1 49430 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules grate/mesh configuration requirements; catches of small mesh multispecies, the landings of whiting and red hake and to adjustments to whiting stock boundaries proposed management action would control effort on these fisheries. Vessels for management purposes; have long-term positive impacts on that would continue fishing for small modifications to requirements for affected physical, biological, and human mesh multispecies would be subject to fisheries to be exempt from the environments. A copy of the SEIS may substantial reductions in landings from minimum mesh requirements for small be obtained from the Council (see their historical fishing activity. The mesh multispecies; and season ADDRESSES). most significant effects would be caused adjustments, declarations and This proposed rule has been by the 4th year default measures, which participation requirements for the determined to be not significant for are expected to result in the largest Cultivator Shoal Whiting Fishery. purposes of E.O. 12866. economic loss for fishery participants. Amendment 12 also proposes the Initial Regulatory Flexibility Analysis The management measures for years 1– following management measures that 3 are estimated to reduce gross revenues could be implemented through a The Council prepared an IRFA for this from all species by more than 5 percent framework adjustment to the FMP proposed rule, pursuant to the for 81 vessels (7 percent of small mesh provided that they are accompanied by Regulatory Flexibility Act (5 U.S.C. multispecies participants). If the default a full set of public hearings: A whiting 603), without a final determination as to measure is implemented, approximately Days at Sea (DAS) effort reduction whether the proposal would have a 20 percent of small mesh multispecies program and a whiting total allowable significant impact on a substantial fishery participants (222 vessels) are catch (TAC), either by region or for the number of small entities. In September estimated to experience a reduction in entire fishery. In addition, Amendment of 1997, NMFS determined that some annual gross revenues of 5 percent or 11 to the FMP, which was approved on stocks of whiting and red hake are more. March 3, 1999, adds essential fish overfished or approaching an overfished Additionally, short- and long-run habitat measures to the framework list. condition. This proposed rule is profitability analyses of small mesh The framework procedure for essential published to comply with the new multispecies commercial fishing vessels fish habitat, which was inadvertently requirements of the Magnuson-Stevens indicate that management measures not included in regulations at the time Act which requires that a management proposed in this amendment would Amendment 11 to the FMP was plan be developed and implemented to force some vessels to cease operations. approved, is now included in this rule. end overfishing and to rebuild In the short run, vessels may be The framework adjustment process overfished stocks. This proposed rule assumed to maintain business allows the Council flexibility to develop intends to end overfishing by operations, provided operating costs can and analyze management actions over a implementing whiting, offshore hake, be paid. In the long run, vessels may be shorter time period than is possible and red hake possession limits; able to maintain business operations under the amendment process. minimum mesh sizes; and a year 4 only if all costs (fixed and operating) Framework development still involves default measure to ensure that the can be paid from gross receipts. notification of proposed measures to the elimination of overfishing is attained. Estimated profitability for the years 1– public and opportunities for public To ensure that there will be effective 3 and year 4 default management comment. recordkeeping and compliance for the measures indicated that two percent, or Amendment 12 proposes to establish proposed measures, this proposed rule more, of the vessels may not be able to the Whiting Monitoring Committee would establish two new collection-of- operate at positive long-run profit upon (WMC) to monitor the progress of the information requirements and include implementation of the FMP by this rebuilding of small mesh multispecies one collection-of-information proposed rule. Under the years 1–3 stocks on an annual basis. The role, requirement that was previously measures, a total of 25 vessels estimated structure, and process for the WMC omitted. These two new requirements to be earning positive profit under the would be identical to the Multispecies consist of a requirement for a vessel status quo, (2.2 percent of all small Monitoring Committee (MMC), with the owner or operator to call the Regional mesh multispecies fishery participants) exception that the WMC would contain Administrator to request a letter of would be operating at negative profit. at least three industry representatives: authorization to fish under one of the Similarly, a total of 61 vessels estimated At least one from New England, one mesh size/possession limit categories to be earning positive profit under the from Southern New England, and one and of a requirement to make a receipt status quo (5.3 percent of all small mesh from the Mid-Atlantic regions. for fish bought through a transfer of fish multispecies fishery participants) would Establishment of a monitoring at sea. The omitted requirement is a be operating at negative profit under the committee provides regular, consistent requirement to call in to receive a letter year 4 default measure. It is assumed evaluation of the management measures of authorization to transfer fish other such vessels would cease operations as to ensure that the goals of the Northeast than regulated multispecies at sea. a result of their negative profit. Multispecies FMP specific to small Measures analyzed in the IRFA include The impact of the proposed action mesh multispecies are achieved. the full set of management measures would not be distributed evenly among This rule proposes to correct with particular attention to mesh size vessels or sectors of the industry. references to the appeals paragraphs of and possession limits and the year 4 Impacts of the proposed management the multispecies permitting section and default measure. The small entities action would be the greatest on the to clarify the net strengthener provision considered in this analysis are 1,156 communities that depend most heavily at § 648.80(g). vessels whose reported landing was on small mesh multispecies fisheries. made of one or more combined pounds Most of the effort in the small mesh Classification of whiting, red hake, and offshore hake fisheries and resulting landings are from The Council prepared and NMFS has during the calendar years 1995 to 1997. vessels based in Rhode Island, New adopted a SEIS for this amendment; a The following is a brief discussion of York, and New Jersey. Therefore, with notice of availability was published at the measures and alternatives analyzed management measures designed to 63 FR 48727, September 11, 1998. in the IRFA. reduce effort and landings, vessels Although short-term negative impacts Measures proposed in this fishing from these states would would result from lowered allowed amendment are intended to reduce experience the effects of the
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.001 pfrm08 PsN: 13SEP1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules 49431 management measures to the greatest boundary between the Gulf of Maine/ would be impractical and difficult to extent. Compared to the status quo, Georges Bank and the Southern New enforce given the high-volume nature of however, industry may realize much England Regulated Mesh Areas to the fishery and that whiting is a highly greater benefits in the long term as differentiate between the northern and perishable product. stocks of small mesh species recover, southern areas. Management measures 6. The Council considered spawning and value of the species increases as a that were considered included season closures to protect spawning result of the proposed management minimum mesh sizes, eastern and stocks of whiting and red hake, but measures. western zone delineation in the rejected the measure because spawning An analysis of the management southern area, and possession limits data for whiting are incomplete. The measures in an open access fishery was based on mesh size, areas fished, data that are available suggest that also conducted. Although it is likely seasons, and vessel size. While the existing large mesh measures in the that current numbers of vessels Council maintained the Cultivator Shoal Northeast Multispecies FMP provide permitted to fish for small mesh Whiting Fishery exemption area, it protection for known spawning fish. multispecies would remain at current rejected further delineation because it levels or slightly increase, it is uncertain felt that area-specific measures would NMFS seeks comments regarding the what the actual level of participation, be unnecessary with simplified and IRFA. Copies of the IRFA are available effort and catch levels will result. uniform management measures for all from the Council (see ADDRESSES). However, vessels that would have areas, except the Cultivator Shoal Paperwork Reduction Act qualified for the limited access permits Whiting exemption area. would remain subject to greater 3. Seasonal restrictions, including a Notwithstanding any other provision restrictions and therefore would be reduction of the current season, were of law, no person is required to respond equally impacted under a limited access considered by the Council for to nor shall a person be subject to a or open access fishery. Vessels that management measures for the Cultivator penalty for failure to comply with a would have been excluded from the Shoal Whiting Fishery. The Council had collection of information subject to the limited access fishery would likely considered reducing the season of the requirements of the Paperwork recognize greater profitability as a result fishery by 2 months by eliminating June Reduction Act unless that collection of of an open access system over the short- and October from the allowed season. In information displays a currently valid term. Therefore, because the open addition, various possession limits and OMB control number. access fishery would result in increased participation restrictions were This proposed rule contains three profitability for some small entities considered. While Amendment 12 new collection-of-information when compared to the limited access proposes a 1-month reduction of the requirements subject to the Paperwork permit program, NMFS determines that season that eliminates the month of Reduction Act and have been submitted the management measures in an open October, the elimination of the June to OMB for approval. This proposed access system would have a reduced portion was rejected. Public comment rule also repeats an existing requirement negative impact on small entities. during the public hearing stage that has been approved by OMB under Other measures proposed in this suggested that landings from the fishery control number 0648–0202. The public amendment, including minimum mesh in June are of high value because of the reporting burden for these collection-of- and possession limit enrollment lack of other available fish or allowed information requirements is indicated in programs (not including the direct whiting fisheries. The possession limits the parentheses in the following reductions of catch and landings caused and other restrictions, other than the statements and includes the time for by minimum mesh sizes and possession proposed measures in this rule, were reviewing instructions, searching limits), codend specifications, the net rejected for consideration in existing data sources, gathering and strengthener provision, and the transfer Amendment 12 because they were too maintaining the data needed, and at sea provision have no quantifiable complex or not feasible. The Council completing and reviewing the collection economic impact. However, these felt that, while the low possession limits of information. Public comment is measures are expected to have minimal would ensure that fishing mortality sought regarding whether the proposed economic impact on participating goals relative to the Cultivator Shoal collection-of-information requirements vessels because they would not result in area would be reached quickly, vessels are necessary for the proper the loss of catch or landings and would would not be able to profit from trips to performance of the functions of the allow continued flexibility. the Cultivator Shoal area with low agency, including whether the Alternatives Considered But Rejected possession limits. information shall have practical utility; by the Council 4. The Council considered three the accuracy of the burden estimates; 1. The Council considered a ‘‘no options for possible transfers of small ways to enhance the quality, utility, and action’’ alternative that would result in mesh multispecies at sea. One measure clarity of the information to be no changes to the current measures would prohibit transfers; a second collected; and ways to minimize the under the Northeast Multispecies FMP. would allow unlimited transfers; and a burden of the collection of information, The no action alternative was rejected third would allow vessels to transfer including the use of automated because it would not fulfill the limited amounts of small mesh collection techniques or other forms of requirements of the Sustainable multispecies. The Council rejected the information technology. Send comments Fisheries Act with respect to overfished prohibition of transfers because it would regarding these reporting burden stocks. Further, evaluations of not allow the needed flexibility in the estimates or any other aspects of the biological, social, and economic impacts industry. The unlimited transfer at sea collection of information, including suggest that the proposed management option was also rejected because it suggestions for reducing the burden, to measures would result in greater, long- would compromise the effectiveness of NMFS and OMB (see ADDRESSES). term benefits to the industry. the possession limits it was developing. 2. The Council considered various 5. The Council considered The new requirements are: management measures specific to implementing minimum fish sizes for Call-in to NMFS Region for northern, southern, and the Cultivator whiting, but rejected the idea due to the Enrollments for Authorization Letter to Shoal Whiting Fishery areas, using the likelihood that measuring whiting Transfer at Sea, (2 minutes/response);
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Written Receipt for At-Sea Transfers Winter flounder- Pleuronectes and all scup dealers, and, as of June 1, of Small mesh Multispecies, (1 minute/ americanus. 1997, all black sea bass dealers must response); Witch flounder- Glyptocephalus have been issued under this section, and Call-in to NMFS Region for cynoglossus. have in their possession, a valid permit Enrollments for Mesh Size/ Possession Yellowtail flounder- Limanda for these species. As of [insert the date Limit Authorization Letter, (2 minutes/ ferruginea. the final rule is effective], persons on response). * * * * * board vessels receiving small mesh The repeated existing requirement is: Small mesh multispecies means the multispecies at sea for use exclusively Call in to NMFS Region for subset of Northeast multispecies that as bait are deemed not to be dealers for Enrollment for the Cultivator Shoal includes silver hake, offshore hake, and purposes of receiving such small mesh Whiting Fishery Authorization Letter, (2 red hake. multispecies and are not required to minutes/response). * * * * * possess a valid dealer’s permit under List of Subjects in 50 CFR Part 648 Whiting Monitoring Committee (WMC) this section, provided the vessel means a team appointed by the NEFMC complies with the provisions specified Fisheries, Fishing, Reporting and to review, analyze, and recommend under § 648.13. recordkeeping requirements. adjustments to the management * * * * * Dated: September 1, 1999. measures addressing small mesh 5. In § 648.13, paragraph (b) is revised Andrew A. Rosenberg, multispecies. The team consists of staff and paragraph (e) is added to read as Deputy Assistant Administrator for Fisheries, from the NEFMC and MAFMC, NMFS follows: National Marine Fisheries Service. Northeast Regional Office, the NEFSC, For the reasons stated in the the USCG, at least one industry § 648.13 Transfers at sea. preamble, 50 CFR part 648 is proposed representative from each geographical * * * * * to be amended as follows: area (northern New England, southern (b)(1) Except as provided in paragraph New England, and the Mid-Atlantic), (b)(2) of this section, vessels issued a PART 648±FISHERIES OF THE and no more than two representatives, multispecies permit under § 648.4(a)(1) NORTHEASTERN UNITED STATES appointed by the Commission, from or a scallop permit under § 648.4(a)(2) 1. The authority citation for part 648 affected states. are prohibited from transferring or continues to read as follows: 3. In § 648.4, paragraph (a)(1)(ii) is attempting to transfer any fish from one revised to read as follows: vessel to another vessel, except that Authority: 16 U.S.C. 1801 et seq. vessels issued a Federal multispecies § 648.4 Vessel and individual commercial 2. In § 648.2, the definition for permits. permit under § 648.4(a)(1) and ‘‘Nonregulated multispecies’’ is specifically authorized in writing by the removed, the definitions for ‘‘Dealer’’ (a) * * * Regional Administrator to do so, may (1) * * * and ‘‘Northeast (NE) multispecies or (ii) Open access permits. A vessel of transfer species other than regulated multispecies’’ are revised, and the the United States that has not been species from one vessel to another definitions for ‘‘Small mesh issued a limited access multispecies vessel. multispecies’’ and ‘‘Whiting Monitoring permit is eligible for and may be issued (2) Vessels issued a Federal Committee (WMC)’’ are added to read as an ‘‘open access multispecies’’, multispecies permit under § 648.4(a)(1) follows: ‘‘handgear’’, or ‘‘charter/party’’ permit may transfer only up to 500 lb (226.8 kg) and may fish for, possess on board, and of combined small mesh multispecies § 648.2 Definitions. per trip for use as bait from one vessel * * * * * land multispecies finfish subject to the restrictions in § 648.88. A vessel that to another, provided: Dealer means any person who (i) The transferring vessel possesses a receives, for a commercial purpose has been issued a valid limited access scallop permit, but that has not been Federal multispecies permit as specified (other than solely for transport on land), under § 648.4(a)(1); from the owner or operator of a vessel issued a limited access multispecies permit, is eligible for and may be issued (ii) The transferring vessel has a letter issued a valid permit under this part, of authorization issued by the Regional any species of fish, the harvest of which an open access scallop multispecies possession limit permit and may fish Administrator on board; and is managed by this part, unless (iii) The receiving vessel possesses a otherwise exempted in this part. for, possess on board, and land multispecies finfish subject to the written receipt for any small mesh * * * * * restrictions in § 648.88. The owner of a multispecies purchased at sea. Northeast (NE) multispecies or vessel issued an open access permit may * * * * * multispecies means the following request a different open access permit (e) Vessels issued a letter of species: authorization from the Regional American plaice- Hippoglossoides category by submitting an application to the Regional Administrator at any time. Administrator to transfer small mesh platessoides. multispecies at sea for use as bait will Atlantic cod- Gadus morhua. * * * * * automatically have 500 lb (226.8 kg) Haddock- Melanogrammus aeglefinus. 4. In § 648.6, paragraph (a) is revised Ocean Pout- Macrozoarces to read as follows: deducted from the vessel’s combined silver hake and offshore hake possession americanus. § 648.6 Dealer/processor permits. Offshore Hake- Merluccius albidus. limit, as specified under § 648.86(c), for Pollock- Pollachius virens. (a) General. All NE multispecies, sea every trip during the participation Redfish- Sebastes fasciatus. scallop, summer flounder, surf clam and period specified on the letter of Red hake- Urophycis chuss. ocean quahog dealers, and surf clam and authorization, regardless of whether or Silver hake (whiting)- Merluccius ocean quahog processors must have not a transfer of small mesh bilinearis. been issued under this section, and have multispecies at sea occurred or whether White hake- Urophycis tenuis. in their possession, a valid permit for or not the actual amount that was Windowpane flounder- Scophthalmus these species. As of January 1, 1997, all transferred was less than 500 lb (226.8 aquosus. mackerel, squid, and butterfish dealers kg). This deduction will be noted on the
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.001 pfrm08 PsN: 13SEP1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules 49433 transferring vessel’s letter of (7) Possess or land per trip more than § 648.80 Regulated mesh areas and authorization from the Regional the possession or landing limits restrictions on gear and methods of fishing. Administrator. specified under § 648.86(a), (b), (c), (d) * * * * * * * * * * and under § 648.82(b)(3), if the vessel (a) * * * 6. In § 648.14, paragraphs (a)(42), has been issued a limited access (3) * * * (a)(43), (b), (c) introductory text, (c)(7) multispecies permit. (i) Restrictions on fishing for, and (t) are revised, and paragraphs * * * * * possessing, or landing fish other than (x)(4)(iii) and (z) are added to read as (t) In addition to the general shrimp. (A) Until May 1, 2002, a vessel follows: prohibitions specified in § 600.725 of fishing in the northern shrimp fishery this chapter and in paragraphs (a) described in this section under this § 648.14 Prohibitions. through (h) of this section, it is unlawful exemption may not fish for, possess on (a) * * * for any person owning or operating a board, or land any species of fish other (42) Fish within the areas described in vessel issued an open access than shrimp, except for the following, § 648.80(a)(4) with nets of mesh smaller multispecies permit to possess or land with the restrictions noted, as allowable than the minimum size specified in any regulated species as defined in incidental species: Longhorn sculpin; § 648.80(a)(2) or § 648.80(a)(4)(i)(B), and § 648.2, or to violate any applicable combined silver hake and offshore unless the vessel is issued and possesses provisions of § 648.88, unless otherwise hake—up to an amount equal to the on board an authorizing letter issued specified in § 648.17. total weight of shrimp possessed on under § 648.80(a)(4)(i). board or landed, not to exceed 3,500 lb * * * * * (43) Violate any of the provisions of (1,588 kg); and American lobster—up to (x) * * * § 648.80, including paragraphs (a)(3), 10 percent, by weight, of all other the small mesh Northern shrimp fishery (4) * * * species on board or 200 lobsters, exemption area; (a)(4), the Cultivator (iii) All small mesh multispecies whichever is less. Silver hake and Shoals whiting fishery exemption area; retained or possessed on a vessel issued offshore hake on board a vessel subject (a)(8), Small Mesh Area 1/Small Mesh any permit under § 648.4 are deemed to to this possession limit must be Area 2; (a)(9), the Nantucket Shoals have been harvested from the EEZ. separated from other species of fish and dogfish fishery exemption area; (a)(11), * * * * * stored so as to be readily available for the Nantucket Shoals mussel and sea (z) Small mesh multispecies. (1) In inspection. urchin dredge exemption area; (a)(12), addition to the general prohibitions (B) Beginning May 1, 2002, a vessel the GOM/GB monkfish gillnet specified in § 600.725 of this chapter fishing for Northern shrimp may not exemption area; (a)(13), the GOM/GB and in paragraph (a) of this section, and fish for, possess on board, or land any dogfish gillnet exemption area; (b)(3), subject to paragraph (a)(32) of this species of fish other than shrimp, except exemptions (small mesh); (b)(5), the section it is unlawful for any person for the following, with the restrictions SNE monkfish and skate trawl owning or operating a vessel issued a noted, as allowable incidental species: exemption area; (b)(6), the SNE Federal multispecies permit to land, Longhorn sculpin; combined silver hake monkfish and skate gillnet exemption offload, or otherwise transfer, or attempt and offshore hake—up to 100 lb (45.36 area; (b)(7), the SNE dogfish gillnet to land, offload, or otherwise transfer, kg); and American lobster—up to 10 exemption area; (b)(8), the SNE mussel small mesh multispecies from one percent, by weight, of all other species and sea urchin dredge exemption area; vessel to another in excess of the limits on board or 200 lobsters, whichever is or (b)(9), the SNE little tunny gillnet specified in § 648.13, unless both less. exemption area. A violation of any of vessels fish exclusively in state waters * * * * * these paragraphs in § 648.80 is a and neither vessel has been issued a (4) * * * separate violation. multispecies permit. (i) * * * * * * * * (2) In addition to the general (A) A vessel fishing in the Cultivator (b) In addition to the general prohibitions specified in § 600.725 of Shoal Whiting Fishery under this prohibitions specified in § 600.725 of this chapter and in paragraph (a) of this exemption must have a letter of this chapter and in paragraph (a) of this section, beginning May 1, 2002, it is authorization issued by the Regional section, it is unlawful for any person unlawful for any vessel to do any of the Administrator on board and is subject to owning or operating a vessel holding a following: the following: multispecies permit, issued an (i) Fish with, use or have available for (B) Until May 1, 2002, a vessel operator’s permit, or issued a letter immediate use within the areas participating in this fishery may not fish under § 648.4(a)(1)(i)(M)(3), to land, or described in §§ 648.80(a), (b) and (c), for, possess on board, or land any possess on board a vessel, more than the nets of mesh whose size is smaller than species of fish other than whiting and possession or landing limits specified in 3–in (7.62–cm), unless otherwise offshore hake combined—up to a § 648.86(a),(b) and (c) or to violate any exempted pursuant to § 648.80(a)(7) or maximum of 30,000 lb (13,608 kg), of the other provisions of § 648.86, unless the vessel has not been issued a except for the following, with the unless otherwise specified in § 648.17. permit under § 648.4 and fishes restrictions noted, as allowable (c) In addition to the general exclusively in state waters. incidental species: Herring; longhorn prohibitions specified in § 600.725 of (ii) If issued a Federal multispecies sculpin; squid; butterfish; mackerel; this chapter and in paragraphs (a) and permit, land, or possess on board a dogfish, and red hake—up to 10 percent (b) of this section, it is unlawful for any vessel, more than 10,000 lb (4,536 kg) of each, by weight, of all other species on person owning or operating a vessel combined whiting and offshore hake. board; monkfish and monkfish parts— issued a limited access multispecies 7. In § 648.80, paragraphs (a)(3)(i), up to 10 percent, by weight, of all other permit or a letter under (a)(4)(i)(A) through (a)(4)(i)(D), (a)(7), species on board or up to 50 lb (23 kg) § 648.4(a)(1)(i)(M)(3), unless otherwise (a)(8)(i), (a)(9)(i)(D), (b)(3)(i), (c)(4), (g)(1) tail-weight/166 lb (75 kg) whole-weight specified in § 648.17 to do any of the and (g)(2)(i) are revised, and (a)(4)(i)(E) of monkfish per trip, as specified in following: through (a)(4)(i)(G), and (g)(4) are added § 648.94(c)(4), whichever is less; and * * * * * to read as follows: American lobster—up to 10 percent, by
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.001 pfrm08 PsN: 13SEP1 49434 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules weight, of all other species on board or consideration various factors including, nets with a mesh size smaller than the 200 lobsters, whichever is less. but not limited to, juvenile mortality. A minimum size, provided the vessel (C) Beginning May 1, 2002, a vessel fishery can be defined, restricted, or complies with the requirements of fishing in the Cultivator Shoal Whiting allowed by area, gear, season, or other paragraphs (a)(3)(ii) or (a)(8)(iv) of this Fishery is subject to the mesh size means determined to be appropriate to section from July 15 through November restrictions specified in paragraph reduce bycatch of regulated species. An 15 when fishing in Small Mesh Area 1 (a)(4)(i)(D) of this section and may not existing exemption may be deleted or and from January 1 through June 30 fish for, possess on board, or land any modified if the Regional Administrator when fishing in Small Mesh Area 2. A species of fish other than whiting and determines that the catch of regulated vessel may not fish for, possess on offshore hake combined—up to a species is equal to or greater than 5 board, or land any species of fish other maximum of 10,000 lb (4,536 kg), except percent, by weight, of total catch, or that than: Silver hake and offshore hake, for the allowable incidental species continuing the exemption may butterfish, dogfish, herring, mackerel, listed in paragraph (a)(4)(i)(B) of this jeopardize meeting fishing mortality ocean pout, scup, squid and red hake, section. objectives. Notification of additions, except for the following allowable (D) All nets must comply with a deletions or modifications will be made incidental species (bycatch as the term minimum mesh size of 3 in (7.62 cm) through issuance of a rule in the Federal is used elsewhere in this part) with the square or diamond mesh applied to the Register. restrictions noted: Longhorn sculpin; first 100 meshes (200 bars in the case of (B) Small mesh multispecies. monkfish and monkfish parts—up to 10 square mesh) counted from the terminus Beginning May 1, 2002, an exemption percent, by weight, of all other species of the net for vessels greater than 60 ft may be added in an existing fishery for on board or up to 50 lb (23 kg) tail- (18.28 m) in length and the first 50 which there are sufficient data or weight/166 lb (75 kg) whole-weight of meshes (100 bars in the case of square information to ascertain the amount of monkfish per trip, as specified in mesh) counted from the terminus of the small mesh multispecies bycatch, if the § 648.94(c)(4), whichever is less; and net for vessels less than or equal to 60 Regional Administrator, after American lobster—up to 10 percent, by ft (18.28 m) in length. consultation with the NEFMC, weight, of all other species on board or (E) Fishing is confined to a season of determines that the percentage of small 200 lobsters, whichever is less. June 15 through September 30, unless mesh multispecies caught as bycatch is, (B) Unless otherwise prohibited in otherwise specified by notification in or can be reduced to, less than 10 § 648.81, beginning May 1, 2002, in the Federal Register. percent, by weight, of total catch and addition to the requirements specified (F) When transiting through the GOM/ that such exemption will not jeopardize in paragraph (a)(8)(i)(A) of this section, GB Regulated Mesh Area specified fishing mortality objectives. In vessels are subject to the mesh size under paragraph (a)(1) of this section, determining whether exempting a restrictions specified in paragraph any nets with a mesh size smaller than fishery may jeopardize meeting fishing (a)(4)(i)(D) of this section and may not the minimum mesh specified in mortality objectives, the Regional fish for, possess on board, or land any paragraph (a)(2) of this section must be Administrator may take into species of fish other than: Silver hake stowed in accordance with one of the consideration various factors including, and offshore hake—up to 10,000 lb methods specified in § 648.23(b), unless but not limited to, juvenile mortality. A (4,536 kg), butterfish, dogfish, herring, the vessel is fishing for small mesh fishery can be defined, restricted, or mackerel, ocean pout, scup, squid and allowed by area, gear, season, or other multispecies under another exempted red hake, except for the following means determined to be appropriate to fishery specified in paragraph (a) of this allowable incidental species (bycatch as reduce bycatch of small mesh section during the course of the trip. the term is used elsewhere in this part) multispecies. An existing exemption (G) A vessel participating in the with the restrictions noted: Longhorn may be deleted or modified if the Cultivator Shoal Fishery may fish for sculpin; monkfish and monkfish parts— Regional Administrator determines that small mesh multispecies in exempted up to 10 percent, by weight, of all other the catch of regulated species is equal to fisheries outside of the Cultivator Shoal species on board or up to 50 lb (23 kg) or greater than 10 percent, by weight, of Whiting Fishery Exemption Area, tail-weight/166 lb (75 kg) whole-weight total catch, or that continuing the provided that the vessel complies with of monkfish per trip, as specified in exemption may jeopardize meeting § 648.94(c)(4), whichever is less; and the requirements specified in paragraph fishing mortality objectives. Notification (a)(4)(i) of this section for the entire trip. American lobster—up to 10 percent, by of additions, deletions, or modifications weight, of all other species on board or * * * * * will be made through issuance of a rule 200 lobsters, whichever is less. (7) Addition or deletion of in the Federal Register. (C) Small mesh areas 1 and 2 are exemptions—(i)(A) Regulated (ii) The NEFMC may recommend to defined by straight lines connecting the multispecies. An exemption may be the Regional Administrator, through the following points in the order stated added in an existing fishery for which framework procedure specified in (copies of a chart depicting these areas there are sufficient data or information § 648.90(b), additions or deletions to are available from the Regional to ascertain the amount of regulated exemptions for fisheries, either existing Administrator upon request (see Table 1 species bycatch, if the Regional or proposed, for which there may be to § 600.502 of this chapter)): Administrator, after consultation with insufficient data or information for the the NEFMC, determines that the Regional Administrator to determine, percentage of regulated species caught without public comment, percentage as bycatch is, or can be reduced to, less catch of regulated species or small mesh Small Mesh Area 1 than 5 percent, by weight, of total catch multispecies. and that such exemption will not (8) * * * Point N. lat. W. long. jeopardize fishing mortality objectives. (i)(A) Unless otherwise prohibited in SM1 ...... 43°03' 70°27' In determining whether exempting a § 648.81, until May 1, 2002, a vessel SM2 ...... 42°57' 70°22' fishery may jeopardize meeting fishing subject to the minimum mesh size SM3 ...... 42°47' 70°32' mortality objectives, the Regional restrictions specified in paragraph (a)(2) SM4 ...... 42°45' 70°29' Administrator may take into of this section may fish with or possess SM5 ...... 42°43' 70°32'
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of this section may not use nets with strengthener complies with the mesh size less than 3 in (7.62 cm), provisions specified under § 648.23(d). Small Mesh Area 1 unless exempted pursuant to paragraph * * * * * (b)(4) of this section, and may fish for, 8. In § 648.86, paragraphs (c) and (d) Point N. lat. W. long. harvest, possess, or land butterfish, are redesignated as paragraphs (e) and SM6 ...... 42°44' 70°39' dogfish (trawl only), herring, mackerel, (f) respectively and new paragraphs (c) SM7 ...... 42°49' 70°43' ocean pout, scup, shrimp, squid, and (d) are added to read as follows: SM8 ...... 42°50' 70°41' summer flounder, silver hake and SM9 ...... 42°53' 70°43' offshore hake - up to 10,000 lb (4,536 § 648.86 Possession restrictions. SM10 ...... 42°55' 70°40' kg), and weakfish with nets of a mesh * * * * * ° ° SM11 ...... 42 59' 70 32' size smaller than the minimum size (c) Small mesh multispecies until May SM1 ...... 43°03' 70°27' 1, 2002. (1) Vessels issued a valid Small Mesh Area 2 specified in the SNE Regulated Mesh Area, provided such vessels comply Federal multispecies permit specified Point N. lat. W. long. under § 648.4(a)(1) are subject to the SM13 ...... 43°05.6' 69°55.0' with requirements specified in SM14 ...... 43°10.1' 69°43.3' paragraph (a)(4)(i)(D) and (b)(3)(ii) of following possession limits for small SM15 ...... 42°49.5' 69°40.0' this section and with the mesh size and mesh multispecies: SM16 ...... 42°41.5' 69°40.0' possession limit restrictions specified (i) Mesh size smaller than 2.5 in (6.35 SM17 ...... 42°36.6' 69°55.0' under § 648.86. cm) and vessels without a letter of SM13 ...... 43°05.6' 69°55.0' authorization. Vessels fishing for, in * * * * * possession of, or landing small mesh * * * * * (c) * * * multispecies with nets, or with nets on (9) * * * (4) Addition or deletion of board that have not been properly (i) * * * exemptions. Same as paragraph (a)(7) of stowed, of mesh size smaller than 2.5 in (D)(1) Until May 1, 2002, the this section. (6.35 cm), and, vessels which have not following species may be retained, with * * * * * been issued a letter of authorization the restrictions noted, as allowable (g) Restrictions on gear and methods pursuant to paragraph (c)(1)(ii) or incidental species in the Nantucket of fishing—(1) Net obstruction or (c)(1)(iii) of this section may possess on Shoals Dogfish Fishery Exemption Area: constriction. Except as provided in board and land up to only 3,500 lb Longhorn sculpin; silver hake—up to paragraph (g)(4) of this section, a fishing (1,588 kg) of combined silver hake and 200 lb (90.72 kg); monkfish and vessel shall not use any device or offshore hake. Silver hake and offshore monkfish parts—up to 10 percent, by material, including, but not limited to, hake on board a vessel subject to this weight, of all other species on board or nets, net strengtheners, ropes, lines, or possession limit must be separated from up to 50 lb (23 kg) tail-weight/166 lb (75 chafing gear, on the top of a trawl net other species of fish and stored so as to kg) whole-weight of monkfish per trip, subject to minimum mesh size be readily available for inspection. The as specified in § 648.94(c)(4), whichever restrictions except that one splitting vessel is subject to applicable is less; American lobster—up to 10 strap and one bull rope (if present), restrictions on gear, area, and time of percent, by weight, of all other species consisting of line and rope no more than fishing specified in § 648.80 and any on board or 200 lobsters, whichever is 3 in (7.62 cm) in diameter, may be used other applicable provision of this part. less; and skate or skate parts—up to 10 if such splitting strap and/or bull rope (ii) Mesh size 2.5 in (6.35 cm) or percent, by weight, of all other species does not constrict in any manner the top greater. Vessels fishing for, in possession of, or landing small mesh on board. of the trawl net. ‘‘The top of the trawl (2) Beginning May 1, 2002, vessels are multispecies may possess on board and net’’ means the 50 percent of the net subject to the mesh size restrictions land up to only 7,500 lb (3,402 kg) of that (in a hypothetical situation) would specified in paragraph (a)(4)(i)(D) of this combined silver hake and offshore hake not be in contact with the ocean bottom section and may retain the allowable when fishing with nets with a minimum during a tow if the net were laid flat on incidental species listed in paragraph mesh size of 2.5 in (6.35 cm) provided the ocean floor. For the purpose of this (a)(9)(i)(D)(1) of this section. the vessel has a letter of authorization paragraph, head ropes are not issued by the Regional Administrator as * * * * * considered part of the top of the trawl described in paragraph (c)(2) of this (b) * * * net. (3) * * * section requiring mesh size of at least (i) Species exemptions. (A) Until May (2) * * * (i) Except as provided in 2.5 in (6.35 cm) to be used and provided 1, 2002, vessels subject to the minimum paragraph (g)(4) of this section, a fishing that any nets of mesh size smaller than mesh size restrictions specified in vessel may not use any mesh 2.5 in (6.35 cm) have not been used to paragraph (b)(2) of this section may fish configuration, mesh construction, or catch such fish and are properly stowed for, harvest, possess, or land butterfish, other means on or in the top of the net pursuant to § 648.81(e). Silver hake and dogfish (trawl only), herring, mackerel, subject to minimum mesh size offshore hake on board a vessel subject ocean pout, scup, shrimp, squid, restrictions, as defined in paragraph to this possession limit must be summer flounder, silver hake and (g)(1) of this section, if it obstructs the separated from other species of fish and offshore hake, and weakfish with nets of meshes of the net in any manner. stored so as to be readily available for a mesh size smaller than the minimum * * * * * inspection. The vessel is subject to size specified in the SNE Regulated (4) Net strengthener restrictions when applicable restrictions on gear, area, and Mesh Area, provided such vessels fishing for small mesh multispecies. A time of fishing specified in § 648.80 and comply with requirements specified in vessel fishing for small mesh any other applicable provision of this paragraph (b)(3)(ii) of this section and multispecies in the GOM/GB, SNE, or part. with the mesh size and possession limit MA Regulated Mesh Areas as defined in (iii) Mesh size of 3 in (7.62 cm) or restrictions specified under § 648.86(c). paragraphs (a), (b), and (c) of this greater. Vessels fishing for, in (B) Beginning May 1, 2002, vessels section with nets of mesh size smaller possession of, or landing small mesh subject to the minimum mesh size than 2.5–in (6.35–cm) may use a net multispecies may possess on board and restrictions specified in paragraph (b)(2) strengthener provided that the net land up to only 30,000 lb (13,608 kg) of
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.001 pfrm08 PsN: 13SEP1 49436 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules combined silver hake and offshore hake § 648.80(a)(3) and issued a valid Federal kg) less than the possession limit the when fishing with nets with a minimum multispecies permit specified under vessel would otherwise receive. This mesh size of 3 in (7.62 cm) provided the § 648.4(a)(1) may possess and land deduction will be noted on the vessel has a letter of authorization silver hake and offshore hake, transferring vessel’s letter of issued by the Regional Administrator as combined, up to an amount equal to the authorization from the Regional described in paragraph (c)(2) of this weight of shrimp on board, not to Administrator. section requiring mesh size of at least 3 exceed 3,500 lb (1,588 kg). Silver hake * * * * * in (7.62 cm) to be used and provided and offshore hake on board a vessel 9. In § 648.90, paragraphs (a) that any nets of mesh size smaller than subject to this possession limit must be introductory text, (a)(1) through (a)(4), 3 in (7.62 cm) have not been used to separated from other species of fish and and (b)(1) are revised to read as follows: catch such fish and are properly stowed stored so as to be readily available for pursuant to § 648.81(e). Silver hake and inspection. § 648.90 Framework specifications. offshore hake on board a vessel subject (4) Possession restriction for vessels (a) Annual review. The Multispecies to this possession limit must be electing to transfer small mesh Monitoring Committee (MSMC) shall separated from other species of fish and multispecies at sea. Vessels issued a meet on or before November 15 of each stored so as to be readily available for valid Federal multispecies permit and year to develop target TACs for the inspection. The vessel is subject to issued a letter of authorization to upcoming fishing year and to develop applicable restrictions on gear, area, and transfer small mesh multispecies at sea options for NEFMC consideration on time of fishing specified in § 648.80 and according to the provisions specified in any changes, adjustments, or additions any other applicable provision of this § 648.13(b) will be subject to a to DAS allocations, closed areas, or on part. combined silver hake and offshore hake other measures necessary to achieve the (2) Letter of authorization. Vessels possession limit which is 500 lb (226.8 NE Multispecies FMP goals and fishing pursuant to paragraphs (c)(1)(ii) kg) less than the possession limit the objectives. For the year 2000 and or (c)(1)(iii) of this section must carry a vessel would otherwise receive. This thereafter, the MMC and the Whiting letter of authorization to fish in the deduction will be noted on the Monitoring Committee (WMC) shall minimum mesh size/possession limit transferring vessel’s letter of meet separately on or before November category on board the vessel. To request authorization from the Regional 15 of each year to develop options for a letter of authorization, vessel owners Administrator. NEFMC consideration on any changes, must call the Northeast Region Permit (d) Small mesh multispecies adjustments, or on additions to DAS Office during normal business hours beginning on May 1, 2002—(1) Federal allocations, if applicable, closed areas or and provide the vessel name, owner multispecies permit holders. A vessel other measures necessary to achieve the name, permit number, the desired mesh issued a valid Federal multispecies NE Multispecies FMP goals and size/possession limit category and the permit specified under § 648.4 (a)(1) objectives. period of time that the vessel would be may possess on board and land up to (1) The MSMC and WMC, as enrolled. Since letters of authorization 10,000 lb (4,536 kg) of combined silver applicable, shall separately review would be effective on the date of hake and offshore hake. Silver hake and available data pertaining to: Catch and receipt, vessel owners should allow offshore hake on board a vessel subject landings, discards, DAS, and other appropriate processing and mail time. to this possession limit must be measures of fishing effort, survey Enrollment must be a minimum of 30 separated from other species of fish and results, stock status, current estimates of days. To withdraw from a category, stored so as to be readily available for fishing mortality, and any other relevant vessel owners must call the Northeast inspection. The vessel is subject to information. Region Permit Office. Withdrawals restrictions on gear, area, and time of (2) Based on this review, the MSMC would be effective upon date of request. fishing specified in § 648.80 and any shall recommend target TACs and Withdrawals may occur after a other applicable provision of this part. develop options necessary to achieve minimum of 7 days of enrollment in (2) Possession limit for vessels the FMP goals and objectives, which which case vessel owners may not re- participating in the Northern shrimp may include a preferred option. The enroll the vessel in any mesh size/ fishery. Vessels participating in the WMC shall recommend management possession limit category until 30 days Small Mesh Northern Shrimp Fishery options necessary to achieve FMP goals from the original enrollment period exemption, as described in and objectives pertaining to small mesh have passed and are subject to a silver § 648.80(a)(3) and issued a valid Federal multispecies, which may include a hake and offshore hake possession limit multispecies permit specified under preferred option. The MSMC and WMC of 3,500 lb (1,588 kg) regardless of the § 648.4(a)(1) may possess and land must demonstrate through analyses and mesh size in use. For example, if a silver hake and offshore hake, documentation that the options they vessel owner enrolls in the 3–in (7.62 combined, up to 100 lb (45.36 kg). Silver develop are expected to meet the NE cm) mesh/30,000 (13,608 kg) lb hake and offshore hake on board a Multispecies FMP goals and objectives. possession limit category which is vessel subject to this possession limit The MSMC and WMC may review the effective October 1 and chooses must be separated from other species of performance of different user groups or November 30 as the end date but fish and stored so as to be readily fleet sectors in developing options. The withdraws on October 7 and enrolls in available for inspection. range of options developed by the the possession limit category, the vessel (3) Possession restriction for vessels MSMC or WMC may include any of the may not be re-enrolled in the 2.5–in electing to transfer small mesh management measures in the NE (6.35 cm)/ 7,500 lbs (3,402 kg) or 3–in multispecies at sea. Vessels issued a Multispecies FMP, including, but not mesh/30,000 lb (13,608 kg) possession valid Federal multispecies permit and limited to: Annual target TACs, which limit category until October 31. issued a letter of authorization to must be based on the projected fishing (3) Possession limit for vessels transfer small mesh multispecies at sea mortality levels required to meet the participating in the Northern shrimp according to the provisions specified in goals and objectives outlined in the NE fishery. Vessels participating in the § 648.13(b) will be subject to a Multispecies FMP for the 10 regulated Small mesh Northern Shrimp Fishery combined silver hake and offshore hake species or small mesh multispecies; exemption, as described in possession limit which is 500 lb (226.9 DAS changes; possession limits; gear
VerDate 18-JUN-99 13:02 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\A13SE2.001 pfrm08 PsN: 13SEP1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Proposed Rules 49437 restrictions; closed areas; permitting adjustments or additions to DAS designation of habitat areas of particular restrictions; minimum fish sizes; allocations (if applicable), closed areas concern within EFH, and any other recreational fishing measures; or other measures necessary to achieve management measures currently description and identification of the NE Multispecies FMP’s goals and included in the FMP. In addition, the essential fish habitat (EFH), fishing gear objectives. Included in the NEFMC’s Council’s recommendation on management measures to protect EFH, recommendation will be supporting adjustments or additions to management designation of habitat areas of particular documents, as appropriate, concerning measures pertaining to small mesh concern within EFH; and any other the environmental and economic multispecies, other than to address gear management measures currently impacts of the proposed action and the conflicts, must come from one or more included in the NE Multispecies FMP. other options considered by the of the following categories: Quotas and In addition, for the 2002 fishing year, NEFMC. appropriate seasonal adjustments for the WMC must consider, and * * * * * vessels fishing in experimental or recommend as appropriate, management exempted fisheries that use small mesh options other than the default measures (b) * * * (1) Adjustment process. (i) in combination with a separator trawl/ for small mesh multispecies After a management action has been grate (if applicable), modifications to management (mesh and possession limit initiated, the Council shall develop and separator grate (if applicable) and mesh restrictions for small mesh multispecies analyze appropriate management configurations for fishing for small mesh beginning May 1, 2002). actions over the span of at least two multispecies, adjustments to whiting (3) The NEFMC shall review the Council meetings. The Council shall stock boundaries for management recommended target TACs provide the public with advance notice purposes, adjustments for fisheries recommended by the MSMC and all of of the availability of both the proposals exempted from minimum mesh the options developed by the MSMC and the analyses and opportunity to requirements to fish for small mesh and WMC, and other relevant comment on them prior to and at the multispecies (if applicable), season information, consider public comment, second Council meeting. The Council’s adjustments, declarations, and and develop a recommendation to meet recommendation on adjustments or participation requirements for the the NE Multispecies FMP objective additions to management measures, Cultivator Shoal Whiting Fishery pertaining to regulated species or small other than to address gear conflicts, Exemption Area mesh multispecies that is consistent must come from one or more of the (ii) Adjustment process for Whiting with other applicable law. If the NEFMC following categories: DAS changes, TACs and DAS. The Council may does not submit a recommendation that effort monitoring, data reporting, develop recommendations for a Whiting meets the NE Multispecies FMP possession limits, gear restrictions, DAS effort reduction program or a objectives and is consistent with other closed areas, permitting restrictions, Whiting TAC through the framework applicable law, the Regional crew limits, minimum fish sizes, process outlined in paragraph (c)(1) of Administrator may adopt any option onboard observers, minimum hook size this section only if these options are developed by the MSMC or WMC, and hook style, the use of crucifiers in accompanied by a full set of public unless rejected by the NEFMC, as the hook-gear fishery, fleet sector shares, hearings that span the area affected by specified in paragraph (a)(6) of this recreational fishing measures, area the proposed measures in order to section, provided the option meets the closures and other appropriate measures provide adequate opportunity for public NE Multispecies FMP objectives and is to mitigate marine mammal comment. consistent with other applicable law. entanglements and interactions, (4) Based on this review, the NEFMC description and identification of * * * * * shall submit a recommendation to the essential fish habitat (EFH), fishing gear [FR Doc. 99–23488 Filed 9–10–99; 8:45 am] Regional Administrator of any changes, management measures to protect EFH, BILLING CODE 3510±22±F
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Notices Federal Register Vol. 64, No. 176
Monday, September 13, 1999
This section of the FEDERAL REGISTER comparable regulations on imports of consistent with Section 8e import contains documents other than rules or those commodities must be issued. regulations under the Act. proposed rules that are applicable to the Import regulations apply only during This form requires the minimum public. Notices of hearings and investigations, those periods when domestic marketing amount of information necessary to committee meetings, agency decisions and effectively carry out the requirements of rulings, delegations of authority, filing of order regulations are in effect. petitions and applications and agency Currently, the following commodities the Act, and its use is necessary to fulfill statements of organization and functions are are subject to Section 8e import the intent of the Act, and to administer examples of documents appearing in this regulations: avocados, dates (other than Section 8e compliance activities. section. dates for processing), hazelnuts, In addition, included in this grapefruit, table grapes, kiwifruit, limes, extension and revision of a currently olives (other than Spanish-style olives) approved information collection is DEPARTMENT OF AGRICULTURE onions, oranges, Irish potatoes, prunes, another form titled, ‘‘Civil Penalty raisins, tomatoes, and walnuts. Stipulation Agreement’’ (FV–7). This Agricultural Marketing Service However, imports of these commodities form provides AMS with an additional [Docket No. FV99±944±1 NC] are exempt from such requirements if tool to obtain resolution of certain cases they are imported for such outlets as under the AMAA without the cost of Notice of Request for Extension and processing, charity, animal feed, seed, going to a hearing. Stipulation Revision of a Currently Approved and distribution to relief agencies, when agreements may be appropriate for, but Information Collection those outlets are exempt under the not limited to, instances of minor applicable marketing order. violations of a marketing order or AGENCY: Agricultural Marketing Service, marketing agreement or section 8e of the USDA Safeguard procedures in the form of importer and receiver reporting AMAA. However, AMS is not under any ACTION: Notice and request for obligation to issue stipulation comments. requirements are used to ensure that the imported commodity is provided to agreements. The only requirement for this form is a signature, therefore, there SUMMARY: In accordance with the authorized exempt outlets. The is no burden on the person if they agree Paperwork Reduction Act of 1995 (44 safeguard procedures are similar to the to the Agreement and return it. U.S.C. Chapter 35), this notice reports currently required by most The information collected is used announces the Agricultural Marketing domestic marketing orders. The import primarily by authorized representatives Service’s (AMS) intention to request an regulations require importers and of the Department, including AMS, extension for and revision to a currently receivers of imported fruit, vegetable, Fruit and Vegetable Programs’ regional approved information collection for and specialty crops to submit a form, as and headquarters staff. AMS is the specified exempt import commodities. provided in sections 944.350, 980.501, and 999.500. primary user of the information. DATES: Comments on this notice must be Estimate of Burden: Public reporting received by November 12, 1999. An importer wishing to import burden for this collection of information ADDITIONAL INFORMATION OR COMMENTS: commodities for exempt purposes must is estimated to average .1698 hours per Contact Valerie L. Emmer-Scott, complete, prior to importation, an response. Marketing Specialist, Marketing Order Importer’s Exempt Commodity Form Respondents: Importers and receivers Administration Branch, Fruit and (FV–6), which is a four-part form. Copy of exempt commodities. Vegetable Programs, AMS, USDA, room one is presented to the U.S. Customs Estimated Number of Respondents: 2525–S., P.O. Box 96456, Washington, Service. The importer files copy two 1,920. DC 20090–6456; Tel: (202) 205–2829, with the Marketing Order Estimated Number of Responses per Fax: (202) 720–5698, or E-mail: Administration Branch (MOAB) of the Respondent: 5. [email protected]. Fruit and Vegetable Programs, AMS, Estimated Total Annual Burden on SUPPLEMENTARY INFORMATION: within two days after the commodity Respondents: 1,632 hours. Title: Specified Commodities enters the United States. The third copy Comments are invited on: (1) Whether Imported into the United States Exempt of the form accompanies the exempt the proposed collection of information from Import Requirements. shipment to its intended destination. is necessary for the proper performance OMB Number: 0581–0167. The receiver certifies that the of the functions of the agency, including Expiration Date of Approval: May 31, commodity has been received and that whether the information will have 2000. it will be utilized for authorized exempt practical utility; (2) the accuracy of the Type of Request: Extension and purposes. The receiver then files copy agency’s estimate of the burden of the revision of a currently approved three with MOAB, within two days after proposed collection of information information collection. receiving the commodity. The fourth including the validity of the Abstract: Section 8e of the copy is retained by the importer. methodology and assumptions used; (3) Agricultural Marketing Agreement Act The Department of Agriculture ways to enhance the quality, utility and of 1937 (AMAA), as amended (7 U.S.C. (Department) utilizes this information to clarity of the information to be 601–674) requires that whenever the ensure that imported goods destined for collected; and (4) ways to minimize the Secretary of Agriculture issues grade, exempt outlets are given no less burden of the collection of information size, quality, or maturity regulations favorable treatment than that afforded to on those who are to respond, including under domestic marketing orders for domestic goods destined for such through the use of appropriate certain commodities, the same or exempt outlets. These exemptions are automated, electronic, mechanical, or
VerDate 18-JUN-99 22:10 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm07 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49439 other technological collection Corporation, United States Department Signed in Washington, DC, on September techniques or other forms of information of Agriculture, 9435 Holmes Road, 7, 1999. technology. Kansas City, MO 64131. Comments may Kenneth D. Ackerman, Comments should reference OMB No. also be sent via the Internet to Manager, Federal Crop Insurance 0581–0167 and be mailed to Docket [email protected]. Corporation. Clerk, Fruit and Vegetable Programs, A copy of each response will be [FR Doc. 99–23795 Filed 9–10–99; 8:45 am] AMS, USDA, P.O. Box 96456, Room available for public inspection and BILLING CODE 3410±08±P 2525-S, Washington, D.C. 20090-6456; copying from 7 a.m. to 4:30 p.m., CDT, Fax (202) 720–5698; or E-mail: Monday through Friday except moabdocket—[email protected]. holidays, at the above address. DEPARTMENT OF AGRICULTURE Comments should reference the docket number and the date and page number FOR FURTHER INFORMATION CONTACT: Natural Resources Conservation of this issue of the Federal Register. All Kathy Tiefel, Insurance Management Service comments received will be available for Specialist, Research and Development public inspection in the Office of the Division, Federal Crop Insurance Notice of Proposed Changes in NCRS Docket Clerk during regular USDA Corporation, at the Kansas City, MO, National Handbook of Conservation business hours at 14th and address listed above, telephone (816) Practices for Review and Comment Independence Ave., S.W., Washington, 926–6343. AGENCY: Natural Resources D.C., room 2525–S. SUPPLEMENTARY INFORMATION: The Conservation Service (NRCS), DOA. All responses to this notice will be current watermelon pilot crop insurance ACTION: Notice of proposed changes in summarized and included in the request program was implemented for the 1999 the NRCS National Handbook of for OMB approval. All comments will crop year in the following fifteen Conservation Practices for review and also become a matter of public record. counties in eight States: Geneva County comment. Signed: September 7, 1999 in Alabama; Sussex County in Delaware; SUMMARY: Robert C. Keeney Alachua, Jackson, and Manatee Counties Notice is hereby given of the intention of NRCS to issue a series of Deputy Administrator, Fruit and Vegetable in Florida; Crisp, Tift, Turner, and Programs Worth Counties in Georgia; Wicomico new or revised conservation practice standards in its National Handbook of [FR Doc. 99–23790 Filed 9–10–99; 8:45 am] County in Maryland; Chowan and Conservation Practices. These standards BILLING CODE 3410±02±p Sampson Counties in North Carolina; include Closure of Waste and Duval, Frio, and Hidalgo Counties Impoundments, Conservation Cover, in Texas. The selected pilot program Contour Farming, Cover Crop, Contour DEPARTMENT OF AGRICULTURE counties accounted for approximately Stripcropping, Grassed Waterway, and 19 percent of the national watermelon Federal Crop Insurance Corporation Irrigation System—Microirrigation. planted acreage. The pilot program NRCS State Conservationists who utilized an actual production history Notice and Request for Public choose to adopt these practices for use (APH) plan of insurance. As a result of Comment on the Watermelon Pilot within their States will incorporate complaints received regarding the Crop Insurance Program them into Section IV of their Field watermelon pilot crop insurance Office Technical Guide. These practices AGENCY: Federal Crop Insurance program concerning excess watermelon Corporation, USDA. may be used in conservation systems production and determination of market that treat highly erodible land or on ACTION: Notice with request for prices, FCIC is suspending the current land determined to be wetland. comments. program for the 2000 crop year. FCIC EFFECTIVE DATES: Comments will be will continue to work with producers, SUMMARY: This notice announces that received on or before November 12, industry representatives, and others to the Federal Crop Insurance Corporation 1999. This series of new or revised develop a watermelon insurance (FCIC) is hereby suspending the current conservation practice standards will be program that may better meet the needs watermelon pilot crop insurance adopted after the close of the 60-day of producers. program for the 2000 crop year. FCIC period. will continue to work with producers, Notice FOR FURTHER INFORMATION CONTACT: industry representatives, and others to Single copies of these standards are develop a revised watermelon insurance FCIC is hereby suspending the current available from NRCS-CED in program that may better meet the needs watermelon pilot crop insurance Washington, DC. Submit individual of producers. The intended effect of this program for the 2000 crop year. inquiries and return any comments in action is to advise all interested parties Producers with existing watermelon writing to William Hughey, National of FCIC’s suspension of the current policies will have those policies Agricultural Engineer, Natural watermelon program for the 2000 crop canceled by the cancellation date in Resources Conservation Service, Post year and to solicit comments regarding accordance with the terms of the policy. Office Box 2890, Room 6139–S, a revised watermelon pilot crop FCIC will continue to work with Washington, DC 20013–2890. insurance program. producers, industry representatives, and Telephone Number 202–720–5023. The DATES: Written comments and opinions others to develop a watermelon standards are also available and can be on suggested improvements for the insurance program that may better meet downloaded from the Internet at: http:/ insurance of watermelons will be the needs of producers. Plans of /www.ftw.nrcs.usda.gov/ accepted until close of business insurance other than the APH plan will practicelstds.html. November 12, 1999. be considered. FCIC is soliciting SUPPLEMENTARY INFORMATION: Section ADDRESSES: Interested persons are comments regarding a revised 343 of the Federal Agriculture invited to submit written comments to watermelon pilot crop insurance Improvement and Reform Act of 1996 the Director, Research and Evaluation program. requires NRCS to make available for Division, Federal Crop Insurance Authority: 7 U.S.C. 1506(l), 1506(p). public review and comment proposed
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49440 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices revisions to conservation practice believes that it accurately assesses the Contact person for more information: standards used to carry out the highly impacts of the proposed project. No Richard R. Janati, Chairman Seif’s Staff erodible land and wetland provisions of adverse impacts are expected with the Member on the Commission, at 717–787– the law. For the next 60 days, NRCS will construction of the project. RUS has 2163. receive comments relative to the reviewed and accepted the document as Richard R. Janati, proposed changes. Following that its Environmental Assessment and is Chairman’s Staff Member on the Commission. period, a determination will be made by making it available for public review. [FR Doc. 99–23681 Filed 9–10–99; 8:45 am] NRCS regarding disposition of those The EA can be reviewed at the BILLING CODE 0000±00±M comments, and a final determination of address provided above or at the change will be made. following locations: Pearlie S. Reed, Brazos Electric Power Cooperative, Inc., DEPARTMENT OF COMMERCE Chief, Natural Resources Conservation 2404 LaSalle Avenue, Waco, Texas Service, Washington, D.C. 76702–2585, Telephone: (254) 750– Foreign-Trade Zones Board [FR Doc. 99–23673 Filed 9–10–99; 8:45 am] 6324 [Docket 45±99] BILLING CODE 3410±16±P CoServ, 3501 FM 2181, Corinth, Texas 76205–3741, Telephone: (940) 321– Foreign-Trade Zone 27ÐBoston, MA; 4640 Application for Subzone, J. Baker, Inc. DEPARTMENT OF AGRICULTURE Lewisville Public Library, 1197 West (Distribution of Apparel, Footwear and Main Street, Lewisville, Texas 75067– Accessories), Canton, MA Rural Utilities Service 3425, Telephone: (972) 219–3570 An application has been submitted to Questions and comments should be the Foreign-Trade Zones Board (the Brazos Electric Power Cooperative, sent to RUS at the address provided. Board) by the Massachusetts Port Inc.; Notice of Availability of an RUS should receive comments on the Authority (Boston, MA), grantee of FTZ Environmental Assessment Environmental Assessment in writing 27, requesting special-purpose subzone by October 15, 1999, to ensure that the AGENCY: Rural Utilities Service, USDA. status for the apparel, footwear and comments are taken into consideration ACTION: Notice of availability of an accessories warehousing/distribution prior to RUS making its environmental environmental assessment. facilities of J. Baker, Inc., located in determination. Canton, MA, some 22 miles south of SUMMARY: Notice is hereby given that Dated: September 2, 1999. Boston. The application was submitted the Rural Utilities Service (RUS) is Glendon D. Deal, pursuant to the provisions of the issuing an Environmental Assessment Acting Director, Engineering and Foreign-Trade Zones Act, as amended with respect to the potential Environmental Staff. (19 U.S.C. 81a–81u), and the regulations environmental impacts related to the [FR Doc. 99–23793 Filed 9–10–99; 8:45 am] of the Board (15 CFR part 400). It was construction and operation of the BILLING CODE 3410±15±P formally filed on September 7, 1999. Lewisville 345/138 kV Switching The Baker facilities are located at 330 Station in the City of Lewisville, Texas. Turnpike Street (750,000 sq. ft. on 30.7 The project is proposed by Brazos acres) and 555 Turnpike Street (45,850 Electric Power Cooperative, Inc. APPLACHIAN STATES LOW-LEVEL RADIOACTIVE WASTE COMMISSION sq. ft. on 4.16 acres). There are 800 (Brazos), of Waco, Texas. RUS may employees at the two facilities. The provide financing assistance for the Annual Meeting facilities are used for storage, project. inspection, finishing, packaging and FOR FUTHER INFORMATION CONTACT: Time and Date: 9:00 a.m.—12:00 p.m. distribution of a wide variety of apparel, Dennis E. Rankin, Environmental October 20, 1999 footwear and accessories such as Protection Specialist, RUS, Engineering Place: Harrisburg Hilton and Towers, One North Second Street, Harrisburg, PA 17101. neckties, belts, hosiery, gloves and and Environmental Staff, Stop 1571, novelty items. About 65 percent of the 1400 Independence Avenue, SW, Status: Most of the meeting will be open to the public. An executive session closed to products are sourced from abroad and Washington, DC 20250–1571, telephone: the public will be held about 9:15 a.m. to over 5 percent are exported. No (202) 720–1953 or e-mail: 10:00 a.m. authority is being sought for activity [email protected].; or David Matters to be Considered: conducted under FTZ procedures that McDaniel, Brazos, PO Box 2585, Waco, Portions Open to the Public: The primary would result in a change in tariff Texas 76702–2585, telephone: (254) purpose of this meeting is to (1) Review the classification. 750–6324 or e-mail: independent auditors’ report of the Zone procedures would exempt Baker [email protected]. Commissions’ financial statement for fiscal from Customs duty payments on foreign year 1998–1999; (2) Review the SUPPLEMENTARY INFORMATION: Brazos is Commission’s annual reports for fiscal years products that are reexported. On its planning to construct an 8–10 acre 345/ 1997–1998 and 1998–1999; (3) Consider a domestic sales, the company would be 138 kV switching station in Denton proposed budget for fiscal year 2000–2001; able to defer duty payments until County, Texas. The proposed site is (4) Review the project reports for the low- merchandise is shipped from the plant. located in the vicinity of the northwest level radioactive waste (LLRW) disposal The application indicates that the corner of North Mill Street and Jones facility siting process in Pennsylvania; (5) savings from zone procedures would Street in the City of Lewisville. Existing Review the status of siting efforts in other help improve the plant’s international transmission facilities are located in the states and compacts; (6) Review and discuss competitiveness. immediate area. the General Accounting Office’s (GAO) report In accordance with the Board’s An environmental report (ER) which on management and disposal of LLRW; and (7) Discuss renewal of Commission’s regulations, a member of the FTZ staff describes the project further and investment agreement with the Pennsylvania has been appointed examiner to discusses the environmental impacts of Office of the Treasurer. investigate the application and report to the proposed project was prepared by Portions Closed to the Public: Executive the Board. Brazos. RUS has conducted an Session from about 9:15 a.m. to 10:00 a.m. to Public comment is invited from independent evaluation of the ER and discuss personal matter interested parties. Submissions (original
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49441 and 3 copies) shall be addressed to the DEPARTMENT OF COMMERCE sq. ft. on 58 acres, 575 employees), Board’s Executive Secretary at the Plainsboro and at 150 Firmenich Way address below. The closing period for Foreign-Trade Zones Board (833,041 sq. ft. on 19 acres, 129 their receipt is November 12, 1999. [Docket 43±99] employees), Port Newark. The facilities Rebuttal comments in response to are used to produce a variety of flavor material submitted during the foregoing Foreign-Trade Zone 49ÐNewark/ and fragrance products, which are used period may be submitted during the Elizabeth, NJ; Application for Subzone, in perfumes, cosmetics, soaps, subsequent 15-day period (to November Firmenich, Inc. (Flavor and Fragrance detergents, personal care products, 29, 1999). Products) Plainsboro and Port Newark, prepared foods, soft drinks, dairy foods, A copy of the application and NJ pharmaceuticals, dietary foods and accompanying exhibits will be available confectionary products. Most of the for public inspection at each of the An application has been submitted to finished products are categorized as following locations: the Foreign-Trade Zones Board (the flavor and fragrance products (duty U.S. Department of Commerce Export Board) by the Port Authority of New rate—zero). The products are blended York and New Jersey, grantee of FTZ 49, Assistance Center, 164 Northern from numerous natural and synthetic Newark/Elizabeth, NJ, requesting Avenue, World Trade Center, Suite ingredients, including a number of special-purpose subzone status for the 307, Boston, MA 02210 natural compounds not available in the flavor and fragrance manufacturing Office of the Executive Secretary, U.S. Foreign-sourced materials may, facilities of Firmenich, Inc., located in Foreign-Trade Zones Board, Room depending on the product, account for 3716, U.S. Department of Commerce, Plainsboro and Port Newark, New Jersey. The application was submitted a substantial portion of the finished 14th & Pennsylvania Avenue, NW, products’ value. It is estimated that Washington, DC 20230 pursuant to the provisions of the Foreign-Trade Zones Act, as amended overall foreign-sourced materials Dated: September 7, 1999. (19 U.S.C. 81a–81u), and the regulations account for some 75 percent of total Dennis Puccinelli, of the Board (15 CFR part 400). It was material value. Acting Executive Secretary. formally filed on September 1, 1999. The foreign-sourced materials which [FR Doc. 99–23774 Filed 9–10–99; 8:45 am] The Firmenich, Inc. facilities are will account for the primary FTZ BILLING CODE 3510±DS±P located at 250 Plainsboro Road (384,220 savings are as follows:
Essential Oils ...... HTSUS 3301.13.0000, 4.6% HTSUS 3301.12.0000, 3.2% Heterocyclic compounds with nitrogen hetero-atoms ...... HTSUS 2933.39.2700, 9.5% Heterocyclic compounds with oxygen hetero-atoms ...... HTSUS 2932.99.9000, 3.7% HTSUS 2932.29.5050, 3.7% HTSUS 2932.29.4500, 1.8/kg+11.4% HTSUS 2932.19.5000, 3.7% HTSUS 2932.19.1000, 6.5% Carboxylic acids ...... HTSUS 2918.30.9000, 3.7% Unsaturated acyclic monocarboxylic acids, cyclic monocarboxylic acids ...... HTSUS 2916.19.5000, 3.7% Ketones and quinones whether or not with other oxygen functions, and their halogenated, sulfo- HTSUS 2914.40.0000, 4.8% nated, nitrated, or nitrosated derivatives. HTSUS 2914.29.5000, 4.8% HTSUS 2914.23.0000, 5.5% Aldehydes, whether or not with oxygen function; cyclic polymers of aldehydes; HTSUS 2913.30.2000, 4.8% paraformaldehyde. Epoxides, epoxy alcohols, expoxyphenols and epoxy ethers ...... HTSUS 2910.90.5000, 4.8% Cyclic alcohols ...... HTSUS 2906.19.5000, 5.5% Acyclic alcohols ...... HTSUS 2905.29.9000, 3.7% HTSUS 2905.22.5050, 4.8% HTSUS 2905.22.5010, 4.8%
The application indicates that the applies to the finished products (duty address below. The closing period for company may also import under FTZ free) instead of the rates otherwise their receipt is November 12, 1999. procedures a wide variety of other flavor applicable to the foreign materials Rebuttal comments in response to and fragrance materials from the (noted above). The company would also material submitted during the foregoing following general categories: sugars, be exempt from duty payments on period may be submitted during the gelatins, chlorides, fruit and vegetable foreign merchandise that becomes subsequent 15-day period to November extracts and oils, as well as various scrap/waste. The application indicates 29, 1999. other natural and synthetic ingredients that the savings from zone procedures A copy of the application and and products used in production, would help improve the plant’s accompanying exhibits will be available packaging and distribution of flavor and international competitiveness. for public inspection at each of the fragrance products (duty rates range 0– In accordance with the Board’s following locations: 19.6%). regulations, a member of the FTZ staff U.S. Department of Commerce Export Zone procedures would exempt has been appointed examiner to Assistance Center, 6 World Trade Firmenich from Customs duty payments investigate the application and report to Center, Rm. 635, New York, NY 10048 on foreign materials used in production the Board. Office of the Executive Secretary, for export. On domestic shipments, the Public comment is invited from Foreign-Trade Zones Board, Room company would be able to defer interested parties. Submissions (original 3716, U.S. Department of Commerce, Customs duty payments on foreign and 3 copies) shall be addressed to the 14th & Pennsylvania Avenue NW, materials and choose the duty rate that Board’s Executive Secretary at the Washington, DC 20230
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Dated: September 2, 1999. Zone procedures would exempt SUMMARY: The United States Court of Dennis Puccinelli, Givaudan from Customs duty payments International Trade and the United Acting Executive Secretary. on foreign materials used in production States Court of Appeals for the Federal [FR Doc. 99–23772 Filed 9–10–99; 8:45 am] for export. On domestic shipments, the Circuit have affirmed the Department of BILLING CODE 3510±DS±P company would be able to defer Commerce’s final remand results Customs duty payments on foreign affecting final assessment rates for the materials and choose the duty rate that administrative reviews of the DEPARTMENT OF COMMERCE applies to the finished products (duty antidumping duty orders on antifriction free) instead of the rates otherwise bearings (other than tapered roller Foreign-Trade Zones Board applicable to the foreign materials bearings) and parts thereof from France, [Docket 44±99] (noted above). The company would also Italy, Japan, Singapore, Sweden, be exempt from duty payments on Thailand, and the United Kingdom. The Foreign-Trade Zone 44ÐMt. Olive, NJ; foreign merchandise that becomes classes or kinds of merchandise covered Request for Manufacturing Authority, scrap/waste (1%). The application by these reviews are ball bearings and Givaudan Roure Corporation, (Flavor indicates that the savings from zone parts thereof, cylindrical roller bearings and Fragrance Products), Mt. Olive, NJ procedures would help improve the and parts thereof, and spherical plain plant’s international competitiveness. bearings and parts thereof. The period of An application has been submitted to In accordance with the Board’s review is May 1, 1992, through April 30, the Foreign-Trade Zones Board (the regulations, a member of the FTZ staff 1993. As there is now a final and Board) by the New Jersey Commerce has been appointed examiner to conclusive court decision in these cases and Economic Growth Commission, investigate the application and report to (with the exception of the case on Japan Trenton, NJ, grantee of FTZ 44, pursuant the Board. for which certain decisions are on to § 400.28(a)(2) of the Board’s Public comment is invited from appeal to the Court of Appeals for the regulations (15 CFR part 400), interested parties. Submissions (original Federal Circuit), we are amending our requesting authority on behalf of and 3 copies) shall be addressed to the final results of reviews and we will Givaudan Roure Corporation (Givaudan) Board’s Executive Secretary at the instruct the U.S. Customs Service to to manufacture flavor and fragrance products under FTZ procedures within address below. The closing period for liquidate entries subject to these reviews FTZ 44. It was formally filed on their receipt is November 12, 1999. with the exception of those still under September 3, 1999. Rebuttal comments in response to appeal. The Givaudan facility (186,000 sq. ft.) material submitted during the foregoing EFFECTIVE DATE: September 13, 1999. is located at 300 Waterloo Valley Road period may be submitted during the FOR FURTHER INFORMATION CONTACT: within FTZ 44 in Mt. Olive, New Jersey. subsequent 15-day period (to November Larry Tabash or Robin Gray, AD/CVD The Givaudan facility (186 employees) 29, 1999). Enforcement, Import Administration, is used to produce a variety of flavors A copy of the application and International Trade Administration, and fragrances, which are used in soaps, accompanying exhibits will be available U.S. Department of Commerce, 14th detergents, perfumes, cosmetics, for public inspection at the following Street and Constitution Avenue, NW, toiletries and household products location: Office of the Executive Washington, DC 20230; telephone (202) blended from numerous natural and Secretary, Foreign-Trade Zones Board, 482–5047 or (202) 482–4023, synthetic ingredients. Most of the Room 3716, U.S. Department of respectively. Commerce, 14th & Pennsylvania finished products are categorized as SUPPLEMENTARY INFORMATION: fragrance compounds (duty rate—zero). Avenue, NW., Washington, DC 20230. The products are blended from a variety Dated: September 3, 1999. Applicable Statute of natural and synthetic ingredients, a Dennis Puccinelli, Unless otherwise indicated, all number of which are not available in the Acting Executive Secretary. citations to the Tariff Act of 1930, as U.S. Foreign-sourced materials will [FR Doc. 99–23773 Filed 9–10–99; 8:45 am] amended (the Act), are references to the account for, on average, 50 percent of BILLING CODE 3510±DS±P provisions in effect as of December 31, the finished products’ value, and 1994. In addition, unless otherwise include compounds such as tropional, indicated, all citations to the peach pure, fixambrene, verdantiol, DEPARTMENT OF COMMERCE Department of Commerce’s (the evernyl, hexenyl salicylate-cis-3, ethyl Department’s) regulations are to the methyl butyrate, phenoxyethyl International Trade Administration regulations as codified at 19 CFR part isobutyrate, phenyl ethyl acetate, linalyl 353 (1995). acetate synthetic FCC, hexenyl acetate- [A±427±801, A±475±801, A±588±804, A±559± CIS 3, jasnone cis, isoraldeine, ionone 801, A±401±801, A±549±801, A±412±801] Background beta synthetic, nethylionantheme On February 28, 1995, the Department gamma, isoraldeine pure, lilial, Antifriction Bearings (Other Than published its final results of cyclamen aldehyde extra, tricyclal, Tapered Roller Bearings) and Parts administrative reviews of the vernaldehyde, cyclal, lemarome, Thereof From France, Italy, Japan, antidumping duty orders on antifriction melonal, sandalore, linalool synthetic, Singapore, Sweden, Thailand, and the bearings (other than tapered roller ethyl linalool, rhodinol, tetrahydro United Kingdom; Amended Final bearings) and parts thereof from France, linalool, and dimetol (duty rates on Results of Antidumping Duty Germany, Italy, Japan, Singapore, these items range from 3.7% to 12.2%). Administrative Reviews Sweden, Thailand, and the United The application indicates that the AGENCY: Import Administration, Kingdom, covering the period May 1, company may also import under FTZ International Trade Administration, 1992, through April 30, 1993 (AFBs 4). procedures a wide variety of other United States Department of Commerce. See Antifriction Bearings (Other Than fragrance compounds, as well as other Tapered Roller Bearings) and Parts ACTION: Notice of amended final results materials related to packaging and Thereof From France, et al.; Final of administrative reviews. distribution of fragrance products. Results of Antidumping Duty
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Administrative Reviews, Partial Department to make methodological NMB/Pelmec Thailand— Termination of Administrative Reviews, changes and to recalculate the (1) recalculate NMB’s CV and COP and Revocation In Part of Antidumping antidumping margins for certain firms after allocating research and Duty Orders, 60 FR 10900,10959 under review. Specifically, the CIT development costs of Minebea Co., Ltd., (February 28, 1995). These final results ordered the Department, inter alia, to over total consolidated cost of sales, and were amended on March 31, 1995, May make the following changes on a (2) correct the packing expense 15, 1995, June 13, 1995, June 29, 1995, company-specific basis: clerical error; December 19, 1995, and August 8, 1997 SNR France—correct a ministerial FAG-Barden and NSK–RHP U.K.— (see 60 FR 16608, 60 FR 25887, 60 FR error; (1) correct the clerical error with 31143, 60 FR 33791, 60 FR 65264, and SKF France—correct a ministerial respect to FAG’s U.S. sales, 62 FR 42745, respectively). The classes error; (2) use the approved tax-neutral or kinds of merchandise covered by Nachi Japan—correct a clerical error; methodology for adjusting for value- these reviews are ball bearings and parts NSK Japan— added taxes, thereof (BBs), cylindrical roller bearings (1) correct a clerical error, (3) correct the clerical error in the and parts thereof (CRBs), and spherical (2) apply a tax-neutral methodology in conversion of insurance costs to dollars plain bearings and parts thereof (SPBs). computing the value-added tax in cases in which the U.S. sales were A domestic producer, the Torrington adjustment, already valued in dollars, and (3) deny the adjustment to foreign Company, and a number of respondent (4) correct a clerical error in the market value for NSK’s return rebates interested parties filed lawsuits with the application of value-added tax to the and post-sale price adjustments, and HEDGE value. United States Court of International (4) exclude NSK’s zero-priced sample The CIT affirmed the Department’s Trade (CIT) challenging the final results. transfers from its U.S. sales database; final remand results affecting final These lawsuits were litigated at the CIT IKS Japan— and the United States Court of Appeals (1) correct the erroneous calculation assessment rates for all the above cases for the Federal Circuit (CAFC). In the of a negative United States price for (except the reviews involving certain course of this litigation, the CIT and certain observations and Japanese companies which are still CAFC issued a number of orders and (2) correct the erroneous inclusion of subject to further litigation). As there are opinions, of which the following have movement expenses incurred in Japan now final and conclusive court resulted in changes to the antidumping in the calculation of movement decisions in these actions, we are margins calculated in AFBs 4: expenses for further-manufactured amending our final results of review in The Torrington Company v. United merchandise; these matters, with the exception of States, Slip Op. 97–107 (CIT September FAG Italy— those cases which are still under appeal, 17, 1997) with respect to France; (1) use the approved tax-neutral and we will subsequently instruct the The Torrington Company v. United methodology for adjusting for value- Customs Service to liquidate entries States, Slip Op. 97–136 (CIT September added taxes, subject to these reviews. 19, 1997) with respect to Sweden; (2) explain the circumstances in Amendment to Final Results The Torrington Company v. United which it will apply the reimbursement States, Slip Op. 97–29 (CIT March 7, regulation in an exporter’s sales price Pursuant to section 516A(e) of the 1997) with respect to Sweden; (ESP) situation, and Act, we are now amending the final NSK Ltd. v. United States, Slip Op. (3) correct the clerical error and results of administrative reviews of the 95–163 (CIT September 25, 1995) with recalculate FAG’s margin to include antidumping duty orders on antifriction respect to Japan; margins for best information available bearings (other than tapered roller NSK Ltd. v. United States, Slip Op. sales; bearings) and parts thereof from France, 97–154 (CIT November 20, 1997) with SKF Italy— Italy, Japan, Singapore, Sweden, respect to Japan; (1) use the approved tax-neutral Thailand, and the United Kingdom, NSK Ltd. v. United States, Slip Op. methodology for adjusting for value- except for those cases still under appeal, 98–34 (CIT March 24, 1998) with added taxes, for the period May 1, 1992, through respect to Japan; (2) explain the circumstances in April 30, 1993. The revised weighted- FAG Italia S.p.A. and FAG Bearings which it will apply the reimbursement average margins are as follows: Corporation; SKF USA Inc., and SKF regulation in an ESP situation, and Industrie S.p.A. v. United States et al. (3) correct a clerical error; Company BBs CRBs SPBs (FAG/SKF/Torrington), Slip Op. 96–187 NMB/Pelmec—recalculate NMB’s (CIT November 22, 1996) with respect to constructed value (CV) and cost of FRANCE Italy; production (COP) after allocating SKF ...... 2.37 (1) 37.98 The Torrington Company v. United research and development costs of SNR 1.89 2.58 (2) States, Slip Op. 98–116 (CIT August 12, Minebea Co., Ltd., over total ITALY 1998) with respect to Singapore; consolidated cost of sales; FAG ...... 2.48 (1) ...... The Torrington Company v. United SKF Sweden— SKF 3.68 0.00 ...... States, Slip Op. 97–140 (CIT September (1) treat Astra and Asea Brown Bovery 26, 1997) with respect to Thailand; the as unrelated to SKF Sverige AB, JAPAN CAFC upheld the CIT on October 7, IKS ...... 4.65 (2)(2) (2) use a tax-neutral value-added tax ( ) 1998, at 156 F. 3d 1361 (Fed. Cir. 1998); methodology, Nachi ...... 12.46 1.03 2 (1) FAG U.K. et al v. United States, Slip (3) explain when the reimbursement NSK 16.10 10.37 Op. 97–77 (CIT June 18, 1997) with regulation would apply in an ESP SINGAPORE respect to the United Kingdom; the situation, NMB/Pelmec ...... 4.70 ...... CAFC dismissed appeal number 97– (4) consider whether a company- SWEDEN 1550 on December 5, 1997. specific arm’s-length test is warranted SKF ...... 13.55 10.62 ...... In the context of the above-cited and, if so, to apply such a test, and litigation, the CIT (in some cases based (5) to correct clerical errors in the THAILAND on decisions by the CAFC) ordered the computer program; NMB/Pelmec ...... 0.01 ......
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Company BBs CRBs SPBs Department determined to conduct an History of the Order expedited review. As a result of this The antidumping duty order on brass UNITED KINGDOM review, the Department finds that sheet and strip from Sweden was FAG-Barden ...... 4.65 8.22 ...... revocation of the antidumping duty published in the Federal Register on NSK-RHP ...... 14.49 20.03 ...... order would be likely to lead to March 6, 1987 (52 FR 6998).1 In that 1 No U.S. sales during the review period. continuation or recurrence of dumping order, the Department indicated that the 2 No review requested. at the levels indicated in the ‘‘Final weighted-average dumping margin for Result of Review’’ section of this notice. Accordingly, the Department will all entries of brass sheet and strip from determine and the U.S. Customs Service FOR FURTHER INFORMATION CONTACT: Eun Sweden is 9.49 percent.2 Since that will assess appropriate antidumping W. Cho or Melissa G. Skinner, Office of time, the Department has completed duties on entries of the subject Policy for Import Administration, several administrative reviews.3 The merchandise made by firms covered by International Trade Administration, order remains in effect for all these reviews. Individual differences U.S. Department of Commerce, 14th manufacturers and exporters of the between United States price and foreign Street and Constitution Avenue, NW, subject merchandise. Washington, DC 20230; telephone: (202) market value may vary from the Background percentages listed above. The 482–1698 or (202) 482–1560, On February 1, 1999, the Department Department has already issued respectively. initiated a sunset review of the appraisement instructions to the EFFECTIVE DATE: September 13, 1999. antidumping order on brass sheet and Customs Service for certain companies Statute and Regulations strip from Sweden (64 FR 4840), whose margins have not changed from This review was conducted pursuant pursuant to section 751(c) of the Act. those announced in AFBs 4 and the The Department received a Notice of previous amendments. For companies to sections 751(c) and 752(c) of the Act. The Department’s procedures for the Intent to Participate on behalf of Heyco covered by these amended results, the Metals, Inc. (‘‘Heyco’’), Hussey Copper Department will issue appraisement conduct of sunset reviews are set forth in Procedures for Conducting Five-Year Ltd. (‘‘Hussey’’), Olin Corporation-Brass instructions to the U.S. Customs Service Group (‘‘Olin’’), Outokumpu American after publication of these amended final (‘‘Sunset’’) Reviews of Antidumping and Countervailing Duty Orders, 63 FR Brass (‘‘OAB’’) (formerly American results of reviews. Brass Company),4 PMX Industries, Inc. We are issuing and publishing this 13516 (March 20, 1998) (‘‘Sunset (‘‘PMX’’), Revere Copper Products, Inc. determination in accordance with Regulations’’). Guidance on methodological or analytical issues (‘‘Revere’’), the International sections 751(a)(1) and 777(i)(1) of the Association of Machinists and Act. relevant to the Department’s conduct of sunset reviews is set forth in the Aerospace Workers, the United Auto Dated: September 1, 1999. Workers (Local 2367), and the United Department’s Policy Bulletin 98:3— Richard W. Moreland, Steelworkers of America (AFL/CIO) Policies Regarding the Conduct of Five- (collectively ‘‘the domestic interested Acting Assistant Secretary for Import year (‘‘Sunset’’) Reviews of Administration. parties’’) on February 16, 1999, within Antidumping and Countervailing Duty the deadline specified in section [FR Doc. 99–23775 Filed 9–10–99; 8:45 am] Orders; Policy Bulletin, 63 FR 18871 351.218(d)(1)(i) of the Sunset BILLING CODE 3510±DS±P (April 16, 1998) (‘‘Sunset Policy Regulations. The domestic interested Bulletin’’). parties claimed interested party status DEPARTMENT OF COMMERCE Scope under sections 771(9)(C) and 771(9)(D) of the Act as U.S. brass mills, rerollers, International Trade Administration This order covers shipments of brass sheet and strip, other than leaded and and unions whose workers are engaged [A±401±601] tinned, from Sweden. The chemical 1 See Antidumping Duty Order: Brass Sheet and composition of the covered products is Final Results of Expedited Sunset Strip From Sweden, March 6, 1987 (52 FR 6998). currently defined in the Copper 2 However, the order and subsequent reviews Review: Brass Sheet and Strip From Development Association (‘‘C.D.A.’’) dealt with only one Swedish company, Outokumpu Sweden 200 Series or the Unified Numbering (in the original investigation, Outokumpu was doing business under the name Metallverken AGENCY: Import Administration, System (‘‘U.N.S.’’) C2000. This review Nederland B.V., see March 3, 1999, Substantive International Trade Administration, does not cover products with chemical Response of the domestic interested parties at 27). Department of Commerce. compositions that are defined by 3 See Brass Sheet and Strip From Sweden: Final Results of Antidumping Duty Administrative ACTION: Notice of Final Results of anything other than either the C.D.A. or U.N.S. series. In physical dimensions, Review, November 27, 1990 (55 FR 49317); Brass Expedited Sunset Review: Brass Sheet Sheet and Strip From Sweden: Final Results of and Strip from Sweden. the products covered by this review Antidumping Duty Administrative Reviews, January have a solid rectangular cross section 23, 1992 (57 FR 2706); Brass Sheet and Strip From SUMMARY: On February 1, 1999, the over .0006 inches (.15 millimeters) Sweden: Amendment to Final Results of Department of Commerce (‘‘the through .1888 inches (4.8 millimeters) Antidumping Duty Administrative Review, May 7, 1991 (56 FR 21128); Brass Sheet and Strip From Department’’) initiated a sunset review in finished thickness or gauge, Sweden: Final Results of Antidumping Duty of the antidumping order on brass sheet regardless of width. Coiled, wound-on- Administrative Review, July 1, 1992 (57 FR 29278); and strip from Sweden (64 FR 4840) reels (traverse wound), and cut-to-length Brass Sheet and Strip From Sweden: Affirmation of pursuant to section 751(c) of the Tariff products are included. The merchandise the Results of Redetermination Pursuant to Court Remand, April 28, 1994 (59 FR 21958); and Brass Act of 1930, as amended (the ‘‘Act’’). On is currently classified under Sheet and Strip From Sweden: Final Results of the basis of a notice of intent to Harmonized Tariff Schedule (‘‘HTS’’) Antidumping Duty Administrative Review, January participate and adequate substantive item numbers 7409.21.00 and 18, 1995 (60 FR 3617). response filed on behalf of domestic 7409.29.00. The HTS numbers are 4 Outokumpu American Brass is opposing interested parties and inadequate continuation of the antidumping duty order against provided for convenience and U.S. Sweden. See March 3, 1999 Substantive Response response (in this case, a waiver) from Customs purposes. The written of the domestic interested parties at page 3, footnote respondent interested parties, the description remains dispositive. 1.
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In their substantive issuance of the order, or (c) dumping would be likely to lead to continuation response, the domestic interested was eliminated after the issuance of the or recurrence of dumping. Section parties indicate that most of their order and import volumes for the 752(c) of the Act provides that, in members were parties to the original subject merchandise declined making this determination, the investigation with a few exceptions: significantly (see section II.A.3). Department shall consider the weighted- Heyco did not participate in the original In addition to considering the average dumping margins determined in investigation but fully supports the guidance on likelihood cited above, the investigation and subsequent instant review, and PMX was section 751(c)(4)(B) of the Act provides reviews and the volume of imports of established after the original petitions that the Department shall determine that the subject merchandise for the period were filed. The domestic parties also revocation of an order is likely to lead before and the period after the issuance note that OAB was formerly known as to continuation or recurrence of of the antidumping order, and shall American Brass Company. dumping where a respondent interested provide to the International Trade party waives its participation in the We received a statement of waiver Commission (‘‘the Commission’’) the sunset review. In the instant review, the from respondent interested party, magnitude of the margin of dumping Department received a statement of Outokumpu, to this proceeding, (see likely to prevail if the order is revoked. waiver from the only respondent Outokumpu’s March 3, 1999 Statement The Department’s determinations interested party, Outokumpu. of Waiver). In its waiver, Outokumpu concerning continuation or recurrence In their substantive response, the made unsolicited comments that it no of dumping and the magnitude of the domestic interested parties propose that longer produces the subject margin are discussed below. In addition, revocation of the order will likely lead merchandise in Sweden, and that it the domestic interested parties’ to continuation or recurrence of dismantled and removed the machinery comments with respect to continuation dumping of brass sheet and strip from required to produce the subject or recurrence of dumping and the Sweden (see March 3, 1999 Substantive merchandise from Swedish plants.5 As magnitude of the margin are addressed Response of the domestic interested a result of Outokumpu’s filing of waiver, within the respective sections below. parties at 44–45). To illustrate their pursuant to 19 CFR 351.218(e)(1)(ii)(C), contention, the domestic interested the Department determined to conduct Continuation or Recurrence of parties point out a drastic decline of an expedited, 120-day, review of this Dumping import volumes of the subject order.6 Drawing on the guidance provided in merchandise since the issuance of the the legislative history accompanying the In accordance with section order. Also, the domestic interested Uruguay Round Agreements Act 751(c)(5)(C)(v) of the Act, the parties indicate that, since the (‘‘URAA’’), specifically the Statement of Department may treat a review as imposition of the order, dumping of the Administrative Action (‘‘the SAA’’), extraordinarily complicated if it is a subject merchandise has continued and H.R. Doc. No. 103–316, vol. 1 (1994), the review of a transition order—an order is presently persisting above the de House Report, H.R. Rep. No. 103–826, which was in effect on January 1, 1995, minimis level. Id. 39–40.8 pt.1 (1994), and the Senate Report, S. As a result, see section 751(c)(6)(C) of the Act. The the domestic interested parties Department determined that the sunset Rep. No. 103–412 (1994), the Department issued its Sunset Policy conclude, dumping of the subject review of the antidumping duty order merchandise will continue if the order on brass sheet and strip from Sweden is Bulletin providing guidance on methodological and analytical issues, were revoked. extraordinarily complicated. Therefore, With respect to the import volumes of on June 7, 1999, the Department including the bases for likelihood determinations. In its Sunset Policy the subject merchandise, the domestic extended the time limit for completion interested parties note that the post- of the preliminary results of this review Bulletin, the Department indicated that determinations of likelihood will be order import volume in 1987 was a mere until not later than August 30, 1999, in 35.4 percent of the pre-order import made on an order-wide basis (see 9 section II.A.2). In addition, the volume in 1985. Id. In addition, the 5 To support this, Outokumpu submitted two Department indicated that normally it domestic interested parties state that unsolicited affidavits, each attesting to the fact that imports of the subject merchandise Outokumpu no longer produces the subject merchandise in Sweden: one from Programme 7 See Porcelain-on-Steel Cooking Ware From the continue to decline: just 189,000 Director of Trade Policy for the Federation of People’s Republic of China, Porcelain-on-Steel Swedish Industries and the other from Division for Cooking Ware From Taiwan, Top-of-the-Stove 8 After finding all exporters/manufacturers were the Americas Desk Officer at the Swedish Ministry Stainless Steel Cooking Ware From Korea (South) dumping the subject merchandise at a weighted- for Foregin Affairs. Nonetheless, as per section (AD & CVD), Top-of-the-Stove Stainless Steel average margins of 9.49 in the less than fair value 351.218(d)(2)(i) of the Sunset Regulation, the Cooking Ware From Taiwan (AD & CVD), Standard investigation, the Department has dealt exclusively Department did not consider the unsolicited Carnations From Chile (AD & CVD), Fresh Cut with Outokumpu as a lone respondent interested comments made by Outokumpu in making its Flowers From Mexico, Fresh Cut Flowers From party in all the subsequent administrative reviews. determination. Ecuador, Brass Sheet and Strip From Brazil (AD & For the following reviews, Outokumpu’s dumping 6 The domestic interested parties filed comments, CVD), Brass Sheet and Strip From Korea (South), margins were as indicated: 5.64 percent for 1986– pertaining to the Department’s decision to conduct Brass Sheet and Strip From France (AD & CVD), 1988, 5.41 percent for 1988–1989, 6.32 percent for a expedited (120-day) sunset review for the present Brass Sheet and Strip From Germany, Brass Sheet 1989–1990, 9.49 percent for 1990–1991, 8.60 review, in which the domestic party concurred with and Strip From Italy, Brass Sheet and Strip From percent for 1991–1992., see footnote 3, supra. the Department’s decision, see May 12, 1999 the Sweden, Brass Sheet and Strip From Japan, 9 The domestic interested parties acknowledge domestic interested parties’ comments on the Pompon Chrysanthemums From Peru: Extension of that during 1987–1991 the imports of the subject Adequacy of Responses and the Appropriateness of Time Limit for Final Results of Five-Year Reviews, merchandise increased slightly; nonetheless, they Expedited Sunset Review at 2. 64 FR 30305 (June 7, 1999). remained well below the 1985 level.
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49446 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices pounds in 1992, no imports for 1993– merchandise.11 Therefore, the Department should abide by its practice, 1997, and in 1998 just 761 pounds. Id. Department determines that the import as set forth in the regulations, and In conclusion, the domestic interested volumes of the subject merchandise should provide to the Commission the parties urge that the Department should decreased significantly after the margin set forth in the original find that dumping would be likely to issuance of the order. investigation. Given that dumping has continued continue if the order is revoked because The Department agrees with the dumping margins for the subject over the life of the order; that import volumes of the subject merchandise domestic interested parties’ suggestion merchandise have existed significantly pertaining to the margin that is likely to above the de minimis level over the life decreased significantly after the issuance of the order; that respondent prevail if the order were revoked. of the order, because the imports of the Because the original 9.49 percent subject merchandise immediately and interested parties have waived their right to participate in this review; and margin accurately reflects the behavior substantially declined after the issuance that there are no arguments and/or of Swedish producers and exporters of the order, and because the imports of evidence to the contrary, the without the discipline of an order in the subject merchandise have become Department agrees with the domestic place, the Department will provide to nearly non-existent since 1992. The interested parties’ contention that the the Commission that margin found in aforementioned circumstances, Swedish brass industry is incapable of the original investigation. Absent according to the domestic interested selling the subject merchandise in the argument and evidence to the contrary, parties, provide a clear indication that United States at fair value. the Department sees no reason to change the Swedish brass industry is unable to Consequently, the Department its usual practice of selecting the rate sell in the United States without determines that dumping is likely to from the original investigation. We will dumping. continue if the order is revoked. report to the Commission the company- As indicated in Section II.A.3 of the Magnitude of the Margin specific and all others rates contained in Sunset Policy Bulletin, the SAA at 890, the Final Results of Review section of and House Report at 63–64, the In the Sunset Policy Bulletin, the this notice. Department considered whether Department stated that it will normally dumping continued at any level above provide to the Commission the margin Final Results of Review de minimis after the issuance of the that was determined in the final order. If companies continue dumping determination in the original As a result of this review, the with the discipline of an order in place, investigation. Further, for companies Department finds that revocation of the the Department may reasonably infer not specifically investigated or for antidumping order would likely lead to that dumping would continue were the companies that did not begin shipping continuation or recurrence of dumping discipline removed. After examining the until after the order was issued, the at the margins listed below: published findings with respect to Department normally will provide a weighted-average dumping margins in margin based on the ‘‘all others’’ rate Margin Manufacturer/exporter (percent) previous administrative reviews, the from the investigation. (See section Department agrees with the domestic II.B.1 of the Sunset Policy Bulletin.) Outokumpu (formerly interested parties that weighted-average Exceptions to this policy include the Metallverken AB) ...... 9.49 dumping margins at a level above de use of a more recently calculated All Others ...... 9.49 minimis have persisted over the life of margin, where appropriate, and consideration of duty absorption the order and currently remain in place This notice serves as the only for all Swedish producers and exporters determinations. (See sections II.B.2 and reminder to parties subject to of brass sheet and strip.10 3 of the Sunset Policy Bulletin.) The Department, in its final administrative protective order (APO) of Consistent with section 752(c) of the determination of sales at less-than-fair- their responsibility concerning the Act, the Department also considered the value, published a weighted-average disposition of proprietary information volume of imports before and after the dumping margin for Outokumpu and disclosed under APO in accordance issuance of the order. The data supplied ‘‘all others’: 9.49 percent (52 FR 819, with 19 CFR 351.305 of the by the domestic interested parties and January 9, 1987).12 We note that, to date, Department’s regulations. Timely those of the United States Census the Department has not issued any duty notification of return/destruction of Bureau IM146s and the United States absorption findings in this case. APO materials or conversion to judicial International Trade Commission In its substantive response, citing the protective order is hereby requested. indicate that, since the imposition of the SAA at 890 and the Sunset Policy Failure to comply with the regulations order, import volumes of the subject Bulletin, the domestic interested parties merchandise have declined and the terms of an APO is a state that the Department normally will substantially. Namely, the import sanctionable violation. provide the Commission with the volumes of the subject merchandise This five-year (‘‘sunset’’) review and dumping margins from the investigation declined substantially immediately notice are in accordance with sections because those are the only calculated following the imposition of the order. margins that reflect the behavior of 751(c), 752, and 777(i)(1) of the Act. Moreover, for the period 1994–1998, exporters without the discipline of the Dated: August 30, 1999. Census Bureau IM 146 data do not order in place. (See the March 3, 1999 reflect any annual imports of the subject Robert S. LaRussa, Substantive Response of the domestic Assistant Secretary for Import interested parties at 45–46.) Therefore, Administration. 10 See footnote 3, supra, for the list of final the domestic interested parties urge, the determinations of administrative reviews in which [FR Doc. 99–23044 Filed 9–10–99; 8:45 am] the Department found above de minimis weighted- BILLING CODE 3510±DS±P average margins for Swedish producers/exporters in 11 Although domestic interested parties state that all periods of investigation. Also, see footnotes 7, 761 pounds of the subject merchandise were supra for a history of weighted-average dumping imported in 1998, no source is given for this figure. margins found for the subject merchandise. 12 See footnote 2, supra.
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DEPARTMENT OF COMMERCE metal from the People’s Republic of including metal flake, powder, China (PRC). See Notice of Amended compressed powder, and fines. The International Trade Administration Final Determination and Antidumping subject merchandise is currently Duty Order: Manganese Metal from the classifiable under subheadings [A±570±840] People’s Republic of China, 61 FR 4415 8111.00.45.00 and 8111.00.60.00 of the Manganese Metal From the People's (February 6, 1996) (LTFV Investigation). Harmonized Tariff Schedule of the Republic of China; Final Results of In accordance with 19 CFR United States (HTSUS). Although the Second Antidumping Administrative 351.213(b)(2), on February 9, 1998, HTSUS subheadings are provided for Review Elkem Metals Company and Kerr-McGee convenience and customs purposes, our Chemical Corporation (the petitioners) written description of the scope of this AGENCY: Import Administration, requested that we conduct an proceeding is dispositive. International Trade Administration, administrative review of this order. On Department of Commerce. March 23, 1998, in accordance with 19 Verification ACTION: Notice of Final Results of CFR 351.213(c)(3), we published a We verified factor information Antidumping Duty Administrative notice of initiation of this antidumping provided by Xiang Tan Huan Yu Review of Manganese Metal from the duty administrative review. See 63 FR Metallurgical Products Plant (Huan Yu). People’s Republic of China. 13837. We also conducted sales verifications at On March 8, 1999, we published our HIED, CMIECHN/CNIECHN, and SUMMARY: We have determined that preliminary results of review. See 64 FR Minmetals. Our verification at each of sales by China Metallurgical Import & 10986. Included in our Preliminary these companies consisted of standard Export Hunan Corporation/Hunan Results notice was our notice of partial verification procedures, including the Nonferrous Metals Import & Export rescission of this review with respect to examination of relevant sales and Associated Corporation have been made two PRC exporters: China National financial records and the selection of below normal value during the period of Electronics Import and Export Hunan original documentation containing review of February 1, 1997, through Company (CEIEC) and Minmetals relevant information. In addition to January 31, 1998. Since we were unable Precious & Rare Minerals Import & these standard verifications, we also to verify that China Hunan International Export Corporation (Minmetals). verified the sales documents submitted Economic Development Corporation We subsequently provided interested by SCL. Our verification results for each reported all of its U.S. sales during the parties an opportunity to comment on of these companies are detailed in the period of review, we are applying the preliminary results, and held a verification reports on file in the Central adverse facts available to calculate the public hearing on May 14, 1999. The Records Unit (CRU) in room B–099 of dumping margin for this exporter of the following parties submitted comments: the Department’s main building. subject merchandise. Based on these Elkem Metals Company and Kerr-McGee Export Price final results of review, we will instruct Chemical Corporation (together the U.S. Customs Service to assess comprising the petitioners), and China For those U.S. sales made by antidumping duties based on the Hunan International Economic CMIECHN/CNIECHN and which we difference between the export price and Development Corporation (HIED) and verified, we calculated an export price, normal value on all appropriate entries. China Metallurgical Import & Export in accordance with section 772(a) of the Hunan Corporation/Hunan Nonferrous EFFECTIVE DATE: September 13, 1999. Act, because the subject merchandise Metals Import & Export Associated was sold to unaffiliated purchasers in FOR FURTHER INFORMATION CONTACT: Greg Corporation (CMIECHN/CNIECHN) the United States prior to importation Campbell or Craig Matney, Group 1, (together comprising the respondents), into the United States and constructed Office I, Antidumping/Countervailing as well as Sumitomo Canada, Limited export price treatment was not Duty Enforcement, Import (SCL) (a Canadian reseller of subject otherwise indicated. Administration, International Trade merchandise). Because it was not For these sales, we calculated export Administration, U.S. Department of practicable to complete the review price based on the price to unaffiliated Commerce, 14th Street and Constitution within the time limit mandated by purchasers. We deducted an amount, Avenue NW., Washington, DC 20230; section 751(a)(3)(A) of the Act, on July where appropriate, for foreign inland telephone (202) 482–2239 or (202) 482– 1, 1999, we published a notice of freight, ocean freight, and marine 1778, respectively. extension of time limit for this review. insurance.1 The costs for these items SUPPLEMENTARY INFORMATION: See 64 FR 35626. were valued in the surrogate country. The Department is conducting this As discussed in the Customs Data Applicable Statute administrative review in accordance section below, there were many more Unless otherwise indicated, all with section 751 of the Act. The period shipments of manganese metal listing citations to the Tariff Act of 1930, as of review (POR) is February 1, 1997 CMIECHN/CNIECHN as the amended (the Act), are references to the through January 31, 1998. manufacturer/exporter entered into the provisions effective January 1, 1995, the Scope of Review United States during the POR than the effective date of the amendments made number of CMIECHN/CNIECHN’s to the Act by the Uruguay Round The merchandise covered by this verified U.S. sales. We have determined Agreements Act (URAA). In addition, all review is manganese metal, which is that these additional entries are not references to the Department’s composed principally of manganese, by CMIECHN/CNIECHN sales for the regulations are to 19 CFR Part 351 (April weight, but also contains some purposes of this review and, therefore, 1998). impurities such as carbon, sulfur, phosphorous, iron and silicon. 1 Background For a detailed discussion of how we derived net Manganese metal contains by weight not export price and constructed value, see On February 6, 1996, the Department less than 95 percent manganese. All Memorandum to the Case File; Calculations for the Final Results of Review for CMIECHN/CNIECHN of Commerce (the Department) compositions, forms and sizes of (September 7, 1999), a public version of which is published in the Federal Register the manganese metal are included within available in room B–099 of the Department’s main antidumping duty order on manganese the scope of this administrative review, building.
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49448 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices we have not calculated an export price (3) amounts of energy and other utilities the PRC as calculated by the Department for these entries. Likewise, for the consumed; and (4) representative capital and updated in May 1999. reasons enumerated in the Facts cost, including depreciation. In For selling, general, and Available section below, we have not examining potential surrogate values, administrative expenses (SG&A), factory calculated an export price for HIED’s we selected, where possible and overhead, and profit values, we used sales. appropriate, the publicly available value information from the Reserve Bank of which was: (1) an average non-export India Bulletin (January 1997) for the Normal Value value; (2) representative of a range of Indian industrial grouping ‘‘Processing 1. Non-Market-Economy Status prices either within the POR or most and Manufacturing: Metals, Chemicals, For companies located in NME contemporaneous with the POR; (3) and Products Thereof.’’ To value factory countries, section 773(c)(1) of the Act product-specific; and (4) tax-exclusive. overhead, we calculated the ratio of provides that the Department shall Where we could not obtain a POR- factory overhead expenses to the cost of determine normal value (NV) using a representative price for an appropriate materials and energy. Using the same factors-of-production methodology if (1) surrogate value, we selected a value in source, we also calculated the SG&A the merchandise is exported from an accordance with the remaining criteria expense as a percentage of the cost of NME country, and (2) the information mentioned above and which was the materials, energy and factory overhead, does not permit the calculation of NV closest in time to the POR. In and profit as a percentage of the cost of using home-market prices, third-country accordance with this methodology, we production (i.e., materials, energy, labor, prices, or constructed value under have valued the factors as described factory overhead and SG&A). 3 section 773(a) of the Act. below. For most packing materials values, we The Department has treated the PRC We valued manganese ore using a used per-unit values based on the data as an NME country in all previous June 1998 export price quotation (in in the Import Statistics. For iron drums, antidumping cases. In accordance with U.S. dollars) from a Brazilian however, we used a price quotation section 771(18)(C)(i) of the Act, any manganese mine for manganese from an Indian manufacturer rather than determination that a foreign country is carbonate ore. Consistent with our a value from the Import Statistics a NME country shall remain in effect methodology used in the first because the quoted price was for the until revoked by the administering administrative review final results, this appropriate type of container used, authority. None of the parties to this price was adjusted to reflect the decline whereas the Import Statistics were proceeding has contested such in manganese ore world prices since the aggregated over various types of 4 treatment in this review. Furthermore, POR. We adjusted this price further to containers. We made further available information does not permit account for the reported manganese adjustments to account for freight costs the calculation of NV using home- content of the ore used in the PRC incurred between the PRC supplier and market prices, third-country prices or manufacture of the subject merchandise manganese metal producers. constructed value under section 773(a) and to account for the differences in To value electricity, we used the of the Act. Therefore, we treated the transportation distances. average rate applicable to large PRC as a NME country for purposes of To value various process chemicals industrial users throughout India as this review and calculated NV by used in the production of manganese reported in the 1995 Confederation of valuing the factors of production in a metal, we used prices obtained from the Indian Industries Handbook of comparable market-economy country following Indian sources: Indian Statistics. We adjusted the March 1, which is a significant producer of Chemical Weekly (February 1997 1995, value to reflect inflation up to the comparable merchandise. through November 1997); the Monthly POR using the WPI published by the Statistics of Foreign Trade of India, IMF. 2. Surrogate-Country Selection Volume II—Imports (February through To value rail freight, we relied upon In accordance with section 773(c)(4) May 1997) (Import Statistics); price rates published in June 1998 by the of the Act and section 351.408(b) of our quotations from Indian chemicals Indian Railway Conference Association, regulations, we find that India has a producers, and the Indian Minerals deflated by the Indian WPI to derive a level of economic development Yearbook (1995) (IMY). Where surrogate value contemporaneous with comparable to the PRC and that it is a necessary, we adjusted these values to the POR. To value truck freight, we used significant producer of comparable reflect inflation up to the POR using an a price quotation from an Indian freight merchandise.2 Therefore, for this Indian wholesale price index (WPI) provider. Because this quotation was for review, we have selected India as the published by the International Monetary a period subsequent to the POR, we surrogate country and have used Fund (IMF). Additionally, we adjusted deflated the value back to the POR using publicly available information relating these values, where appropriate, to the WPI published by the IMF. to India, unless otherwise noted, to account for differences in chemical value the various factors of production. content and to account for freight costs 4. Changes Since the Preliminary incurred between the suppliers and Results 3. Factors-of-Production Valuation manganese metal producers. We have made certain changes, as For purposes of calculating NV, we To value the labor input, consistent identified below, in our margin valued PRC factors of production, in with 19 CFR 351.408(c)(3), we used the calculations pursuant to comments we accordance with section 773(c)(1) of the regression-based estimated wage rate for received from interested parties, to the Act. Factors of production include but availability of updated information, and 3 are not limited to the following For a more detailed explanation of the to the discovery of clerical errors since elements: (1) hours of labor required; (2) methodology used in calculating various surrogate values, see Memorandum to the File from Case the preliminary results. quantities of raw materials employed; Team; Factors of Production Valuation for the Final (a) Liquid ammonium: see Comment 5 Results (September 7, 1999). (b) Sulphuric acid: see Comment 5 2 See Memorandum to Susan Kuhbach from Jeff 4 See Manganese Metal from the PRC; Final (c) Rail freight: see Comment 10 May; Non-Market-Economy Status and Surrogate Results and Partial Rescission of Antidumping Duty Country Selection (June 23, 1998), a public copy of Administrative Review, 63 FR 12440, 12442 (March (d) Packing materials: see Comment which is available in the Central Records Unit. 13, 1998) (First Review Results). 13
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(e) Labor: In May 1999, the The second category of disputed CMIECHN/CNIECHN’s cash deposit Department revised its regression-based CMIECHN/CNIECHN entries includes rate.8 For instance, an affidavit on the PRC wage rate (as published on the what appear to be resales of subject record of this review suggests that one Department’s website). This revised merchandise that was, at some point, U.S. importer may have knowingly wage rate has been incorporated into purchased from CMIECHN/CNIECHN. entered subject merchandise incorrectly these final results. The documentation for these reseller under CMIECHN/CNIECHN’s cash deposit rate rather than under the PRC- Customs Data entries generally includes a commercial invoice from the reseller to the U.S. wide rate. Moreover, we note that the In the course of this administrative importer. In certain instances this relationship between other PRC review, the Department obtained commercial invoice also indicates that exporters and the other U.S. importer of customs entry documentation from the this merchandise was originally sourced these disputed CMIECHN/CNIECHN U.S. Customs Service (Customs). We from CMIECHN/CNIECHN.6 The entries is already in question and was initially requested this customs data to defining characteristic of the one of the reasons we have used adverse verify the non-shipment claims by documentation for this category of facts available to determine HIED’s certain PRC exporters. Our request for entries, however, is that there are no dumping margin in these final results. entry data was also responsive to commercial invoices from CMIECHN/ See Facts Available section below. concerns expressed by the petitioners CNIECHN addressed directly to the U.S. Thus, based on this evidence and the that many more shipments of importer. fact that these entries do not reflect sales manganese metal had entered the We note that most of the entries in the from third-country resellers, there is United States during the POR than were second-category are U.S. sales of the reason to believe that the importers of reported as sales by the respondents. third-country reseller SCL. During this these disputed entries did not enter the The information we obtained included review, the Department verified at SCL merchandise at the proper cash deposit the documentation submitted by the that this merchandise was, in fact, rate. U.S. importers, as required upon entry, purchased from CMIECHN/CNIECHN. Given the above, and based upon our for each shipment of subject The Department also verified at SCL and verification of CMIECHN/CNIECHN’s merchandise that entered during the CMIECHN/CNIECHN that there was no total U.S. sales, we have determined POR. We have closely examined this reason to believe that CMIECHN/ that the disputed CMIECHN/CNIECHN documentation for each entry and find CNIECHN would have known that these entries which comprise this third 5 the following. sales to SCL were destined for category are neither U.S. sales nor To start, the customs data indicates exportation to the United States.7 exports by CMIECHN/CNIECHN for the that many more shipments of The third category of disputed purposes of this review. Consequently, manganese metal listing CMIECHN/ CMIECHN/CNIECHN entries is we determine that these entries were not CNIECHN as the exporter were entered comprised of shipments for which the entitled to CMIECHN/CNIECHN’s cash into the United States than the number customs documentation includes deposit rate and, instead, should have of U.S. sales reported by CMIECHN/ commercial invoices from CMIECHN/ been subject to the PRC-wide rate of CNIECHN and verified by the CNIECHN directly to the U.S. importer. 143.32 percent. Therefore, as explained Department. In fact, the verified sales CMIECHN/CNIECHN alleges that these in the Assessment and Cash Deposit represent less than five percent of the commercial invoices and certain other Rates section below these entries will be total value of POR entries listing documents submitted to Customs for liquidated at the PRC-wide rate of CMIECHN/CNIECHN as the exporter. these entries are, in fact, forged and has 143.32 percent. CMIECHN/CNIECHN maintains that its formally asked Customs to investigate verified sales are the only sales it made Facts Available whether these documents represent to the United States during the POR. Section 776(a)(2) of the Act provides customs fraud. However, Customs has Thus, the issue before the Department that if an interested party (1) withholds not made any determination regarding was whether this merchandise was information that has been requested by the accuracy and authenticity of these properly identified as being exported by the Department, (2) fails to provide such documents as of the date of these final CMIECHN/CNIECHN and, information in a timely manner or in the results. consequently, whether these entries form requested, (3) significantly Nevertheless, in the course of this were entitled to CMIECHN/CNIECHN’s impedes a proceeding under the review the Department has examined a cash deposit rate. antidumping statute, or (4) provides An examination of this customs considerable amount of evidence information that cannot be verified, the documentation shows that these regarding the nature of and Department shall use, subject to section disputed CMIECHN/CNIECHN entries circumstances surrounding these 782(d), facts available in reaching the can be classified into three categories. disputed CMIECHN/CNIECHN entries. applicable determination. While section The first category consists of entries There is substantial evidence which 782(d) of the Act provides certain which correspond to sales of subject supports a finding that CMIECHN/ conditions that must be satisfied before merchandise reported by the CNIECHN was improperly identified as the Department may disregard all or part respondents in the first administrative the exporter of record of these disputed of the information submitted by a review. The Department therefore has entries and, consequently, that these respondent, these conditions only apply previously reviewed these sales and entries should not have been subject to when the information submitted can be calculated the appropriate dumping verified and the interested parties have 6 The documentation for some of these reseller margin on these entries accordingly. entries also includes inspection certificates, country cooperated to the best of their abilities. of origin certificates, or secondary commercial See section 782(e) of the Act. 5 For a detailed analysis of the issues raised by invoices indicating that the merchandise was, at this customs data, see Memorandum to Richard W. some point, purchased from CMIECHN/CNIECHN. 1. Application of Facts Available Moreland from Greg Campbell; Major Concurrence 7 For a detailed account of the Department’s We determine that, in accordance Issues for the Final Results of Review (September verification at SCL, see Memorandum to the Case 7, 1999) (Final Concurrence Memo), a public File; Results of Verification of SCL (July 23, 1999), with sections 776(a)(2) and 776(b) of the version of which is available in room B–099 of the a public version of which is available in room B– Department’s main building. 099 of the Department’s main building. 8 See Final Concurrence Memo.
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Act, the use of facts otherwise available, accounting records for HIED’s affiliates, examine whether the respondent adverse to the company, is appropriate including those selling manganese ‘‘cooperated’’ by ‘‘acting to the best of for HIED because its sales data could not metal, were likewise not available its ability’’ under section 776(b) of the be verified and because it did not though, according to HIED management, Act, the Department considers, inter cooperate to the best of its ability in the this was because company officials were alia, the accuracy and completeness of course of this review. The bases for unwilling to travel to other locations in submitted information and whether the these conclusions are detailed below. the PRC where the documents were respondent has hindered the calculation On August 13, 1998, the Department kept. of accurate dumping margins. See, e.g., provided HIED with the customs data There were many significant delays in Certain Welded Carbon Steel Pipes and showing the POR entries into the United the verification process as a result of Tubes From Thailand: Final Results of States of manganese metal purportedly sorting through conflicting statements Antidumping Duty Administrative from HIED. In an accompanying letter by officials and of the difficulty in Review, 62 FR 53808, 53819–53820 we noted that these entries differed in locating documents which were (October 16, 1997). material ways from HIED’s reported U.S. explicitly requested by the Department As discussed above, HIED failed to sales and requested that HIED comment in the verification outline sent prior to provide much of the documentation on this inconsistency. HIED replied that the verification. Despite the fact that the requested by the Verification Team and its reported sales were correct and could verification was extended—at the necessary to verify HIED’s sales. be reconciled with its books. HIED Department’s initiative—for an Moreover, various company officials’ further noted that any inconsistencies additional half day, several important statements were contradictory on were likely due to ‘‘fraudulent schemes’’ documents were not presented to the several points central to a successful on the part of other exporters to export Verification Team until near or at the verification. Furthermore, the subject merchandise into the United end of verification, preventing an Department identified unreported sales States under the most favorable adequate review of important data. of subject merchandise by HIED which circumstances. Subsequent to verification, the the company knew, or should have The Department subsequently Department received from Customs known, should have been properly conducted a verification of HIED’s supporting documentation (e.g., included in the reported U.S. sales list. reported sales. During the course of Customs Form 7501, commercial Thus, we have determined that HIED verification, we encountered numerous invoices, packing lists) filed by the U.S. withheld information we requested and inconsistencies and delays, and certain importer upon entering the subject significantly impeded the antidumping documents were not available. For merchandise into the United States for proceeding. instance, HIED officials’ explanation of several of the entries which appeared in We find, therefore, that HIED has not the company’s relationship to its U.S. the customs data. The supporting acted to the best of its ability to comply customer was, in general, incongruous documentation for several entries listed with our requests for information. and incomplete and, at times, entirely in the customs data identified HIED as Accordingly, consistent with section contrary to what other company officials the actual exporter of the subject 776(b) of the Act, we have applied had stated previously. Moreover, merchandise. However, for many of adverse facts available to this company. although company officials claimed these entries there were no 3. Corroboration of Secondary initially that only one of HIED’s corresponding sales listed in HIED’s Information departments and one of its affiliates U.S. sales listing, as submitted to the made sales of manganese metal during Department. In this review, we are using as adverse the POR, Department officials These numerous inconsistencies and facts available the PRC-wide rate conducting the verification (the delays, and the unavailability of (143.32 percent) determined for non- Verification Team) subsequently documentation, taken together, responding exporters involved in the identified accounting records which constitute a verification failure under LTFV Investigation. This margin indicated that at least one additional section 776(a)(2)(D) of the Act. Thus, we represents the highest margin in the business unit may also have been have determined that HIED failed to petition, as modified by the Department involved in selling manganese metal. report sales it made to the United States. for the purposes of initiation. See Furthermore, the Verification Team was The Department has, therefore, Initiation of Antidumping Duty unable to verify the total quantity and determined that, because HIED’s Investigation: Manganese Metal from the value of subject merchandise sold by reported sales data could not be verified PRC, 59 FR 61869 (December 2, 1994) HIED and its affiliates because certain and, generally, the credibility of the (LTFV Initiation). intermediate accounting records could information contained in HIED’s Information derived from the petition not be reconciled to source data or to questionnaire responses could not be constitutes secondary information the financial statements. established, section 776(a) of the Act within the meaning of the SAA. See Verification of the completeness of requires the Department to disregard SAA at 870. Section 776(c) of the Act HIED’s sales reporting was also HIED’s questionnaire responses and provides that the Department shall, to seriously hindered by the Verification apply facts available. the extent practicable, corroborate Team’s inability to review several of the secondary information from sales and accounting records reportedly 2. Use of Adverse Facts Available independent sources reasonably at its maintained by HIED. In some cases, the In selecting from among the facts disposal. The SAA provides that source documentation requested by the available, section 776(b) of the Act ‘‘corroborate’’ means that the Department to verify total sales was authorizes the Department to use an Department will satisfy itself that the reportedly discarded prior to adverse inference if the Department secondary information to be used has verification. Company officials offered finds that a party has failed to cooperate probative value. The SAA at 870, no explanation as to why they were by not acting to the best of its ability to however, states further that ‘‘the fact unable to retrieve other sales and comply with requests for information. that corroboration may not be accounting records, maintained at the See Statement of Administrative Action practicable in a given circumstance will company headquarters, for the majority (SAA), H.R. Doc. 316, Vol. 1, 103rd not prevent the agencies from applying of HIED’s sales departments. Sales and Cong., 2d sess. 870 at 870 (1994). To an adverse inference.’’ In addition, the
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SAA, at 869, emphasizes that the Reporter. Furthermore, we revalued knowledge of the ultimate U.S. Department need not prove that the electricity costs using World Bank data destination of the sales. facts available are the best alternative on electricity rates for industrial users The petitioners further argue that the information. in Indonesia, an appropriate surrogate Department encountered major To corroborate secondary information, country at a comparable level of problems at the verification of HIED and to the extent practicable the Department economic development to the PRC. CMIECHN/CNIECHN and, therefore, will examine the reliability and We find, therefore, for the purpose of was unable to verify the completeness of relevance of the information to be used. these final results that the PRC-wide these respondents’ sales reporting. In To examine the reliability of margins in margin established in the LTFV particular, the verification of CMIECHN/ the petition, we examine whether, based Investigation is reliable. As there is no CNIECHN’s total sales was dependent on available evidence, those margins information on the record of this review on the respondent’s consistent use of its reasonably reflect a level of dumping that demonstrates that the rate selected invoice numbering system. The that may have occurred during the is not an appropriate adverse facts petitioners note that the invoice period of investigation by any firm, available rate for HIED, we determine numbers on many of the disputed including those that did not provide us that this rate has probative value and, CMIECHN/CNIECHN entries were not with usable information. This generally therefore, is an appropriate basis for consistent with this numbering system. consists of examining, to the extent facts otherwise available. Moreover, although the Department practicable, whether the significant examined at verification all of elements used to derive the petition Analysis of Comments Received CMIECHN/CNIECHN’s sales invoices margins, or the resulting margins, are We received comments from reflecting this system, the Department supported by independent sources. interested parties regarding the could not then trace those invoices to With respect to the relevance aspect of following general topics: (1) The use of the company’s general accounting corroboration, the Department will facts available, (2) the appropriate rate records. Therefore, the petitioners consider information reasonably at its for resellers, and (3) the valuation of assert, the completeness of CMIECHN/ disposal as to whether there are factors of production and the by-product CNIECHN’s reporting of total sales circumstances that would render a credit. Summaries of the comments and remains unverified. With regard to HIED, the petitioners margin not relevant. Where rebuttals, as well as the Department’s note that the Department applied circumstances indicate that the selected responses to the comments, are adverse facts available to this exporter margin may not be relevant, the included below. Department will attempt to find a more in the preliminary results based in part appropriate basis for facts available. See, 1. Use of Facts Otherwise Available on the fact that the Department could not confirm HIED’s sales at verification. e.g., Fresh Cut Flowers from Mexico; Comment 1: The petitioners argue that There is no new information on the Final Results of Antidumping Duty the Department, consistent with its record since the preliminary results, the Administrative Review, 61 FR 6812, established practice regarding petitioners maintain, that would 6814 (February 22, 1996) (where the respondents who have failed to report a Department disregarded the highest warrant a change in this decision. significant portion of their U.S. sales, margin as best information available Given the above, in the petitioners’ should apply total adverse facts because the margin was based on view, the Department cannot reasonably available to all customs entries another company’s uncharacteristic conclude that the disputed entries do indicating HIED or CMIECHN/CNIECHN business expense resulting in an not represent U.S. sales by the as the manufacturer/exporter. As a basis unusually high margin). respondents for the purpose of this For the initiation of the investigation, for this adverse facts available finding, review. The Department, therefore, based on an analysis of the petition and the petitioners note that customs entry cannot proceed with its intention, as a subsequent supplement to the documentation and port arrival data stated in the preliminary results, of petition, the Department modified the indicate that there were several more assigning facts available to CMIECHN/ dumping margin contained in the entries from these exporters than their CNIECHN’s ‘‘unreported sales’’ while petition. See LTFV Initiation at 61870. reported U.S. sales. None of the record applying a calculated margin to that In the petition, the U.S. price was based information or arguments submitted by company’s ‘‘reviewed sales.’’ The on price quotations obtained for the respondents, the petitioners petitioners maintain that the manganese metal from the PRC during maintain, adequately accounts for these Department has a longstanding practice December 1993 through May 1994. The additional entries which the of applying facts available to all of a factors of production were valued, respondents claim not to have made. respondent’s sales if a significant where possible, using publicly available First, argue the petitioners, the portion of those sales are found to be published information for India. Where respondents have not sufficiently unreported. Therefore, the petitioners Indian values were not available, the substantiated their allegations that these argue, the Department should apply petitioners used data based on their own additional entries represent customs total adverse facts available to all of costs. For the initiation, however, the fraud. Minor differences in the CMIECHN/CNIECHN’s sales, ‘‘reported Department disallowed all factors appearance of the sales documents of an and unreported,’’ for these final results. valued by using the petitioners’ own exporter are not uncommon, and do not Likewise, the Department should costs. Instead, we recalculated factory establish one document form as continue to apply total adverse facts overhead and depreciation expenses authentic and the other fraudulent. available to all of HIED’s sales. using the statistics in the Reserve Bank Second, the petitioners continue, even The respondents counter that there is of India Bulletin (December 1992), a if these additional, disputed entries do no credible evidence on the record that publicly available and independent represent legitimate sales by the CMIECHN/CNIECHN failed to include a source used in other investigations of respondents to intermediary resellers, significant portion of its U.S. sales, that imports from the PRC. We also who then resold the merchandise to the it withheld information, or that it has recalculated the valuation of several United States, these sales might still be done anything wrong in this case. To process chemicals using data from the U.S. sales for the purposes of this the contrary, the respondents argue, independent source Chemical Marketing review if the respondents had CMIECHN/CNIECHN has provided
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49452 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices accurate and complete information sales reporting.9 It is true that, due to rate we have found for HIED is a regarding its U.S. sales. the nature of CMIECHN/CNIECHN’s separate rate based on facts available. The respondents further note that methodology for recording sales, the Moreover, for the reasons enumerated in CMIECHN/CNIECHN’s allegations company’s accounting records cannot be the Facts Available section above, we regarding fraudulent entry data are still fully relied upon to confirm sales made find that HIED has not fully cooperated under consideration by Customs. See during the POR. However, for the with the Department in this review. purposes of conducting an antidumping Customs Data section above. Therefore, 2. Appropriate Rate for Resellers until Customs makes an official review the Department does not require that responding companies adopt a Comment 2: During the POR, SCL determination regarding these specific accounting methodology. The imported into the United States subject allegations, no wrongdoing by Department recognizes that while some merchandise which it had purchased CMIECHN/CNIECHN can be proven, companies maintain more sophisticated from CMIECHN/CNIECHN.10 SCL and the petitioners arguments are mere records including audited financial entered its appearance in this review speculation. CMIECHN/CNIECHN statements, other companies have more subsequent to the preliminary results cannot be penalized based on the rudimentary record-keeping systems and submitted, along with its case brief, disputed customs data, the respondents and may lack audited financial sales documentation for all of its POR maintain, if no finding in any fraud statements. In these cases, the entries. SCL argues that it was necessary investigation by Customs has been Department attempts to use other to become a party to this proceeding in made. reasonable methods of verifying the order to object to the change in practice, Moreover, the respondents continue, respondents’ data. as first articulated in the preliminary CMIECHN/CNIECHN has cooperated Therefore, in the case of CMIECHN/ results, in the Department’s treatment of fully with the Department’s requests for CNIECHN, because sales were not third country exporters of subject information and fully disclosed the necessarily recorded in their accounting merchandise. SCL argues that this required U.S. sales information. system in a consistent manner, we change is an abuse of the Department’s Contrary to the petitioners’ assertion, found other means at verification of discretion and is contrary to law, for the insist the respondents, at verification confirming that no POR manganese following reasons. the Department was able to review and metal sales were unreported. For First, SCL states that the Department’s trace a variety of records and instance, relying on the accuracy of the established policy is to assign a third- documents, none of which indicated company’s invoicing system, we country exporter of subject merchandise unreported sales. The Department has reviewed in sequential order the the specific rate applicable to its not found any of the problems initially commercial invoices for sales of all supplier of subject merchandise in identified in CMIECHN/CNIECHN’s products by CMIECHN/CNIECHN. In instances where the third-country accounting practices at verification to be this process, we did not identify any exporter has not been named in a evidence of unreported U.S. sales. evidence of unreported sales. request for review, has not received a The petitioners contend that because questionnaire from the Department, and Therefore, the respondents conclude, there were no means of confirming the where no allegation of middleman the Department should continue to base accuracy and consistency of this dumping has been made. SCL maintains CMIECHN/CNIECHN’s dumping margin invoicing system, the Department that it is clear from the facts of this case on the sales and factors data submitted cannot rely on this system to verify that SCL meets these criteria and is, by the company. Likewise, the sales. Apart from the allegedly-forged therefore, entitled to CMIECHN/ Department should apply a separate rate commercial invoices for the disputed CNIECHN’s reviewed rate. to HIED for these final results because entries, however, we found no Second, the Department cannot, SCL HIED has cooperated with the inconsistencies or inaccuracies in argues, draw the adverse inference that Department. CMIECHN/CNIECHN’s application of its all of the disputed entries not reported Department’s Position: We agree with system of assigning numbers to its directly by CMIECHN/CNIECHN are not the respondents that adverse facts commercial invoices. We therefore find genuine sales of CMIECHN/CNIECHN- available is not the appropriate basis for that it is reasonable to rely on this supplied material. To do so would be to determining the dumping margin of system as one means of establishing the treat SCL, a legitimate reseller of CMIECHN/CNIECHN. The petitioners completeness and accuracy of CMIECHN/CNIECHN-supplied material, point to the disputed entries in the CMIECHN/CNIECHN reported U.S. the same as an unscrupulous importer customs data and the Department’s sales. committing customs fraud. In entering alleged inability to verify CMIECHN/ With regard to HIED, we agree with its merchandise under CMIECHN/ CNIECHN’s total sales at verification as the petitioners that continued use of CNIECHN’s cash deposit rate, SCL support for the use of total adverse facts adverse facts available in these final maintains, it was not acting fraudulently results is warranted. No significant new available. With regard to the first issue, but was merely acting according to its information has become available since for the reasons discussed in the Customs understanding of the Department’s the preliminary results that would lead Data section above we have determined practice concerning resellers of PRC us to reconsider this position. In that the disputed CMIECHN/CNIECHN material. entries are not U.S. sales by CMIECHN/ response to the respondents’ argument Third, SCL notes that 19 U.S.C. CNIECHN for the purposes of this that the Department should apply a 1675(a)(2)(B) (section 751(a)(2)(B) of the review. separate rate to HIED for these final Act) provides for ‘‘new shipper results because HIED has cooperated reviews’’ in instances where the As to the verification of sales, with the Department, we note that the although the Department experienced Department receives a request for review from a producer or exporter who certain difficulties in tracing total sales 9 For a detailed account of the Department’s through CMIECHN/CNIECHN’s verification at CMIECHN/CNIECHN, see did not export, during the period of accounting system, these difficulties did Memorandum to the Case File; Results of Verification of CMIECHN/CNIECHN (October 14, 10 SCL was both the foreign exporter and the U.S. not preclude us from verifying the 1998), a public version of which is available in importer of record for its entries of subject completeness of CMIECHN/CNIECHN’s room B–099 of the Department’s main building. merchandise.
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49453 investigation, the merchandise subject A final alternative proposed by SCL Amended Final Results of Antidumping to the antidumping duty order. would be to calculate a new rate specific Duty Administrative Review, 64 FR However, SCL argues, it was not eligible to SCL based, not on adverse facts 7624, 7626 (February 16, 1999); Fresh for a new shipper review given that its available, but on SCL’s reported U.S. Garlic from the PRC; Final Results of supplier CMIECHN/CNIECHN had sales prices. Antidumping Duty Administrative previously exported merchandise The petitioners argue that, according Review and Partial Termination of subject to the dumping order. to SCL’s own admission, SCL, not Administrative Review, 62 FR 23758, Fourth, SCL argues that the PRC-wide CMIECHN/CNIECHN, was the party 23760; Sparklers from the PRC; Final rate which the Department preliminarily with the knowledge of the U.S. Results of Antidumping Duty determined to apply to all of the destination of the merchandise entered Administrative Review, 61 FR 39630, disputed CMIECHN/CNIECHN entries by SCL. Thus, the petitioners contend, 39631. was originally calculated in the LTFV SCL is the exporter for the purposes of The assessment language in the Investigation based on adverse best the antidumping law. Furthermore, the preliminary results was premised on the information available because some PRC petitioners assert, the statute clearly information on the record at the time. suppliers in the investigation refused to requires the Department to assess Prior to the preliminary results, much of respond to the Department’s antidumping duties on entries at the the available information and argument questionnaire. This adverse best margin of dumping on those entries. centered on the possibility of information available (BIA) rate was Therefore, CMIECHN/CNIECHN’s unreported sales by CMIECHN/ imposed prior to the URAA. The current assessment rate cannot be applied to CNIECHN and potential fraud on the review, however, is subject to the URAA entries of merchandise exported by SCL part of U.S. importers. At that point, amendments to the Act. Under the given that the calculation of CMIECHN/ SCL had not entered an appearance as amended Act, SCL continues, the CNIECHN’s rate does not take into an interested party. Recognizing the Department can only apply facts account the prices of sales from SCL to potential need for additional otherwise available (formerly BIA) its unrelated U.S. customers. information, in the notice of our where an interested party withholds The petitioners further maintain that preliminary results we stated that we information, fails to provide the if the Department finds that CMIECHN/ would reconsider, in the final results, information in the form or manner CNIECHN, not SCL, is the exporter of our preliminary determination that requested by the Department, impedes these entries, then the Department must CMIECHN/CNIECHN was not the the proceeding, or provides information conclude that CMIECHN/CNIECHN exporter of these disputed entries in the which cannot be verified. None of these failed to report a significant volume of event that ‘‘any substantive new criteria apply to the actions of SCL. U.S. sales to SCL. Therefore, the information on the matter, including Moreover, the Department cannot apply Department would have to apply the any potential determination by the inferences adverse to SCL because SCL 143.32 percent facts available rate to all Customs Service regarding alleged has never failed to cooperate with the entries corresponding to CMIECHN/ customs fraud, becomes available.’’ 64 Department but, rather, has acted to the CNIECHN sales. FR at 10988. best of its ability by providing its sales If the Department concludes that SCL Since we issued the preliminary documents along with its case brief as is the exporter of these POR entries, results, substantial new information has soon as it was made aware in the then SCL was required to request an become available that has clarified the preliminary results of the Department’s administrative review to obtain an status of SCL as a reseller. This new intended change in practice regarding assessment rate for those entries information includes, inter alia, SCL’s resellers. different from the PRC-wide rate. The sales documentation tracing its Based on the above, SCL argues that petitioners argue that even if SCL was purchases of manganese metal from the Department should not liquidate not the exporter of the merchandise and, CMIECHN/CNIECHN and the SCL’s entries at the PRC-wide rate, as therefore, could not request a new subsequent resale of this subject envisioned in the preliminary results, shipper review, SCL could nevertheless merchandise into the United States. Our but instead adopt one of the following have requested an administrative review subsequent verification of SCL’s alternative approaches. First, the as the U.S. importer. The petitioners documents further confirmed SCL’s Department could initiate a changed continue that the Department cannot position as a third-country reseller of circumstances review in order to now calculate a margin for SCL after the merchandise supplied by CMIECHN/ determine the extent of third-country preliminary results when the company CNIECHN. The SCL verification also sales of CMIECHN/CNIECHN failed to request in a timely manner a further confirmed that, at the time of the merchandise and the identity of the review of its POR entries. sales transactions, CMIECHN/CNIECHN third-country resellers. Under this Finally, the petitioners contend, the was not aware of the ultimate U.S. approach, SCL argues, SCL would be Department could apply the PRC-wide destination of the merchandise it sold to given the opportunity to establish that rate to SCL even if that rate was based SCL. Moreover, the additional customs CMIECHN/CNIECHN supplied SCL’s on BIA (or facts available) because in documentation which the Department merchandise and that the sales were not other proceedings the courts have obtained only after the preliminary made below normal value. upheld the Department’s application of results were issued played an important A second alternative approach a BIA-based PRC-wide rate to parties part in differentiating the disputed suggested by SCL would be to assess that failed to request administrative CMIECHN/CNIECHN entries that CMIECHN/CNIECHN’s calculated rate reviews. represented sales by the reseller SCL on all direct or indirect sales to the Department’s Position: We agree with from those disputed entries for which United States of CMIECHN/CNIECHN SCL that it’s been the Department’s customs fraud has been alleged. See material. The Department would accept established practice to assign to the Customs Data section above. SCL’s factual information (submitted entries of non-PRC exporters of subject We took the unusual step in this after the preliminary results) and then merchandise from the PRC the rate review of accepting substantial new verify SCL’s sales data to confirm that applicable to the PRC supplier of that information onto the record from an the merchandise was originally sourced exporter. See e.g., Manganese Metal interested party which entered its from CMIECHN/CNIECHN. from the People’s Republic of China; appearance only after the preliminary
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49454 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices results were issued. However, the facts The respondents counter by noting, Moreover, given that the and circumstances of this review, first, that the price quotation from the specifications stated for the 1998 price particularly as they relate to the customs Brazilian ore producer included the full quotation were essentially the same as data and alleged customs fraud, are specifications for the type of ore being those for the 1993 price quotation themselves highly unusual. Moreover, offered; based on the chemical content (which was, undisputably, for a these final results were postponed in listed, there is no reason to believe that commercial grade ore), it would seem part to develop an adequate record on the price quoted was for off-grade ore. likely that the ore producer, a long- which to make a determination with Second, the respondents note that the established seller of ore on the world respect to SCL, and to give all parties price quotation originated from the market, would clearly indicate in the sufficient time to analyze and comment Brazilian ore producer, not the U.S. 1998 quotation that the ore grade on on the additional information the importer to whom the quotation was offer was not of commercial quality, if Department has collected since the addressed. In lieu of any indication or that were the case. There is nothing in preliminary results. Therefore, the allegation that the document itself was the 1998 price quote, however, interests of no party have been fraudulent, the respondents argue, there indicating that the merchandise on offer prejudiced by this unusual step. is no reason to reject the price quotation is not of normal commercial grade. Also, For all the above reasons, we find that as inaccurate or unreliable merely contrary to the information provided by the PRC-wide rate is not the rate because it was addressed to an importer the petitioners’ researcher that ‘‘the applicable to SCL’s POR entries and that allegedly committing customs fraud. remaining inventories of 1998 refers to SCL, as a third-country reseller, was Finally, the respondents contend, this the cleaning of stocks, with very low entitled to enter the subject price quotation represents the best ore quantity * * *’’ the quoted 1998 price merchandise under CMIECHN/ surrogate value because it is the most is for a quantity of 35,000 to 44,000 CNIECHN’s cash deposit rate. current information available and metric tons, an amount which would because it pertains to an ore type most generally be considered commercial. 3. Valuation of Factors of Production similar to that used by the PRC Additionally, despite the petitioners’ (a) Ore Valuation manganese metal producers. general assertion to the contrary, there Department’s Position: We agree with is no evidence on the record to suggest Comment 3: In the preliminary the respondents that the 1998 Brazilian that in 1998 the Brazilian mine sold its results, to value the respondents’ ‘‘ore ore price quotation represents the best ore at a discount merely because it was 1’’ we used a June 1998 price quotation ore surrogate information available on in the process of closing down its for carbonate manganese ore obtained the record. To start, we note that the ore mining operations. by the respondents from a Brazilian price quotation originated with the Furthermore, we reject the petitioners’ manganese ore mine. The petitioners Brazilian ore producer in question, argument that we should not utilize argue that this was an inappropriate whereas the seemingly contrary information that was sent to a company surrogate value given that, according to information was provided by the accused by parties in this case of information on the record provided by petitioners’ researcher. In light of other customs fraud. The price quotation was the petitioners, the Brazilian ore information regarding this surrogate generated by the Brazilian producer and producer had ceased mining operations value, we cannot conclude that there is no evidence indicating that the by 1998 and was only selling from its commercial sales did not exist during producer was involved in any remaining small stock, consisting of off- the POR simply because the petitioners’ fraudulent activity. specification ore, at the time of the price Despite the petitioners’ argument that researcher could not obtain information quote. According to the petitioners, there is no compelling reason to use the on commercial prices from the ore companies in the process of closing 1998 price quotation because there are producer’s management. down operations often reduce their other reasonable ore surrogate values on Next, we note that the ore grade’s prices below normal market levels and, the record, we find that the 1998 price chemical composition and physical therefore, this price quotation is not quotation represents the best ore 1 properties listed in the 1998 price quote, representative of a commercial value for surrogate available. As discussed in the with the exception of the moisture the ore. The petitioners further note that Factors of Production Valuation section content, were provided at a level of the U.S. manganese importer to whom above, where we could not identify an detail and specificity greater than that of the ore price quotation was addressed appropriate POR-representative the 1993 price quote, the suggested (and from whom the respondents surrogate value, we selected a value, in surrogate of the petitioners. The obtained the price information) has accordance with the normal surrogate petitioners are correct in that the ore otherwise been implicated in this criteria, which was the closest in time specifications listed (in either the 1993 review in the respondents’ fraud to the POR. In the first administrative or the 1998 quote) do not account for allegation. The Department cannot, the review of this proceeding, we selected 100 percent of the ore’s chemical petitioners assert, rely on this price the ore grade from the Brazilian content. However, based on the criteria quotation as though it were obtained producer because among all the established on the record of this and from a party whose information can be available ore surrogates, it best fulfilled previous segments of this proceeding, relied upon as truthfully presented and the standard criteria for surrogate we find the level of specification and obtained in good faith. There is, finally, selection. However, because the 1993 detail, with regard to the ore’s primary no compelling reason to rely on this price quotation was not physical and chemical properties, to be price quotation given that, according to contemporaneous with the first review sufficient for determining the the petitioners, there are other POR, we adjusted the quoted price to quotation’s suitability as a surrogate reasonable surrogate ore values on the reflect movement in manganese ore value.12 record, including the value the administrative review segments of this proceeding. Department used in the First Review value for ore 1 a 1993 price quotation for the same 11 The Department has, therefore, accumulated Results. basic grade of ore from the same Brazilian mine. extensive expertise in considering the physical and 12 The suitability of alternative ore surrogate chemical properties of manganese ore, one of the 11 In the first administrative review of this values was a particularly contentious and closely most significant inputs in the subject merchandise. proceeding, the Department used as a surrogate examined issue in the investigation and first See LTFV Investigation and First Review Results.
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49455 prices in the intervening years. Using data.13 We found, however, that there the Indian import statistics they the 1993 price quotation in the current was insufficient information on the submitted to value the input because the administrative review, however, would record to confirm the accuracy, import statistics are publicly-available require a time-adjustment spanning objectivity, and breadth of coverage (i.e., published information. roughly four years. Given that the 1998 the extent to which the electricity data The petitioners argue that the price quotation is dated only four reflects price trends throughout all of Department used the correct surrogate months after the POR, consistent with India) of the data presented. value in the preliminary results. The the Department’s established Therefore, considering the uncertainty value in the Indian import statistics is methodology we have used the more surrounding this data, we find that the for selenium, the petitioners note, contemporaneous 1998 value. continued use of the general Indian whereas the manufacturer’s price WPI, as published in the International quotation is for selenium dioxide, the (b) Electricity Valuation Financial Statistics and as used by the input actually used by the respondents. Department for factors of production Comment 4: To value electricity in the Department’s Position: We agree with surrogates in numerous prior PRC cases, the petitioners that the 1998 price preliminary results, we used the average is more appropriate for purposes of this electricity rate for large industrial quotation used in our preliminary administrative review. results is the best available surrogate electricity users in India as of March 1, value because it is for the actual 1995, inflated to the POR using the (c) Chemical Valuation chemical used by the respondents. The Indian WPI. Subsequent to the Comment 5: The respondents argue value in the Import Statistics preferred preliminary results, the petitioners that the Department incorrectly by the respondents is for selenium, not submitted an Indian WPI that was calculated the tax-exclusive price for selenium dioxide. specific to the electricity industry. The sulphuric acid. The respondents claim Moreover, the regulations at section petitioners argue that the general Indian that Indian excise and sales taxes are assessed sequentially, a fact the 351.408(c)(1) state that the Department WPI used in the preliminary results ‘‘will normally use publicly available reflects changes in the price of a wide Department has acknowledged in other cases, and that this should be accounted information to value factors.’’ In prior variety of goods across the full spectrum segments of this proceeding, as well as of the Indian economy. In contrast, the for in the calculation of tax-exclusive prices for this chemical. in numerous other proceedings, the electricity-specific WPI reflects more Department has used price quotations to accurately the movement in Indian Moreover, the respondents argue that we did not properly exclude the non- value production factors. As discussed electricity prices in particular. Given the above, for instance, we have used a Department’s practice of selecting market economy imports from the Import Statistics used to value liquid price quotation submitted by the surrogates that correspond as closely as ammonium. The respondents point to respondents to value ore 1 in these final possible to the inputs used by the other cases where the Department has results. See Normal Value section respondents, the petitioners argue, the explicitly excluded the imports of these above. We, therefore, have continued to Department should inflate the 1995 countries when deriving surrogate value selenium dioxide in these final electricity rate by the electricity-specific values. results using this price quotation. WPI to derive an electricity surrogate The petitioners have no comment. Comment 7: The respondents argue value that is contemporaneous with the Department’s Position: We agree with that the Department misunderstood the POR. the respondents that our calculation for information they submitted regarding The respondents counter that, excluding taxes from the sulphuric acid the concentration of the SDD chemical consistent with the calculations surrogate value was incorrect in our used in the production of the performed in previous segments of this preliminary results. For these final respondents’ merchandise. In the proceeding, the Department should results, we have corrected this preliminary results, the Department continue using the general Indian WPI calculation so that it is consistent with used a price quotation from an Indian to inflate the 1995 electricity rate. The the Department’s established formula chemicals producer for SDD with a 40 respondents further note that the for deriving tax-exclusive Indian percent purity. We then adjusted this Department has never used in any case surrogate values, as articulated in price to account for the fact that the before the electricity-specific WPI Chrome Plated Lug Nuts from the reported purity of the SDD actually used submitted by the petitioners. People’s Republic of China; Final by the respondents was significantly Results of Antidumping Duty different. The respondents claim that all Department’s Position: We have Administrative Review, 63 FR 53872, standard SDD has a purity level of 40 continued to use the general WPI to 53874 (October 7, 1998). percent, and that the respondents’ inflate the 1995 Indian electricity rate. Likewise, the respondents are correct reported purity level should be The petitioners are correct in stating regarding our practice of excluding non- interpreted as a percentage of the 40 that it is the Department’s general market economy imports from the trade percent. practice to use surrogate information as data used as surrogate values. We have The petitioners counter that the specific as possible to the input and revised our liquid ammonium surrogate information on which the respondents industry in question. Thus, we value in these final results accordingly. base their arguments was first submitted considered very carefully the electricity- Comment 6: In our preliminary on the record by the respondents with specific WPI that the petitioners results, we valued selenium dioxide their case brief, well after the deadline submitted. Given that the Department using a 1998 price quotation from an for new factual information. Moreover, has not examined this information in Indian selenium manufacturer. The the petitioners continue, it is not clear prior proceedings, and given that the respondents argue that we should use that the information in the affidavit, publisher of this data appears to be a provided by the respondents in support private research organization rather than 13 See Memorandum to the Case File from Andrew of their argument, pertains to the type a government agency, we attempted to Covington; Research into Center for Monitoring of SDD used by the PRC manganese analyze the methodology used to Indian Economy (August 31, 1999), a copy of which is available in the Department’s Central Records metal producers. Nor does it appear, the collect, synthesize and report this Unit. petitioners note, that the manganese
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49456 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices metal producer certified these facts and SG&A ratios in TRBs–10 14 is calculation of the profit surrogate ratio supplied by the respondent. irrelevant to this proceeding because the fully includes all labor costs in the Department’s Position: We have not surrogate values used in TRBs–10 were numerator and denominator. We have revised our adjustment to the SDD from a different source and because the excluded all labor costs from our surrogate value for these final results. In methodology in TRBs–10 was an calculation of overhead and SG&A the Department’s June 12, 1998 initial exception to the Department’s normal ratios, however, to increase the accuracy questionnaire, we asked the practice. and specificity of our valuation of the The petitioners counter by first noting respondents’ to report ‘‘the chemical respondents’ costs of production. In that, contrary to the respondents’ composition/purity for each raw particular, we have the somewhat assertion, the Department did include material input * * *’’ and, in our unusual benefit in this case of having labor costs in its calculation of a reported total unit labor inputs (broken subsequent August 21, 1998 surrogate profit percentage. The supplemental questionnaire we asked down into direct, factory overhead and petitioners continue by stating that it SG&A labor categories). We therefore them to confirm the correct composition was appropriate for the Department to of their SDD input. In our preliminary have valued the total unit labor costs of exclude all labor from the calculation of the PRC producers by multiplying the results, we used the purity level as overhead and SG&A surrogate total unit labor inputs by the surrogate reported and confirmed by the percentages because the Department wage rate. In many past cases, only respondents. separately had valued all labor, direct labor was reported and, therefore, Although the respondents had ample including direct and indirect factory overhead and SG&A labor was opportunity to clarify or revise any labor and SG&A labor. Had the subsumed within the general surrogate misleading or incorrect information in Department not excluded all labor from percentages for the overhead and SG&A their responses within the regulatory the numerator and denominator in cost categories. deadlines for factual information, it was calculating factory overhead and SG&A Given that we are valuing overhead not until their April 16, 1999 case brief expense ratios, certain labor costs would and SG&A labor directly based on the that the respondents submitted have been double-counted. Rather, the respondents’ reported factors, we have additional factual information regarding Department’s approach in the excluded all labor (from both the purported standard purity levels for this preliminary results was consistently numerator and denominator) in chemical. In a May 18, 1999 letter to the applied and appropriate given the level calculating surrogate ratios for the respondents’ counsel, the Department of detail on the record of the remaining overhead and SG&A costs. informed the respondents that this respondents’ reported labor costs. Likewise, we have excluded all labor Moreover, continue the petitioners, portion of the case brief contained components from the respondents’ the respondents’ quotation from the untimely filed, new factual information direct inputs cost base to which we accounting text is irrelevant in this which would be removed from the apply these labor-exclusive surrogate instance. In looking at the context of the record of this review. overhead and SG&A ratios. As the quotation, the petitioners argue that the Therefore, for these final results, we text deals with the cost-accounting issue petitioners point out, failure to do so have continued to adjust the SDD of allocation of factory overhead costs would in this case overstate the surrogate value to reflect the SDD purity among multiple products. Given that respondents’ total labor costs. level as reported in the respondents’ this review involves non-market Turning to the respondents’ other questionnaire and supplemental economy producers, producers costs are points, the passage in the accounting responses. irrelevant and no allocation among text cited by the respondents does not necessarily pertain to the facts of this (d) Overhead, SG&A and Profit different products is being made. Finally, the petitioners argue, the case. First, it does not appear that the respondents’ producer is a labor- Comment 8: The respondents argue overhead and SG&A ratios in this case intensive firm, ‘‘whose operations are that the Department should include the are based on Indian, and not PRC, performed manually and only labor and labor benefit items, such as production experience. Although the incidentally by machines.’’ To the the ‘‘Provident Fund’’ and ‘‘Employees amount of labor hours incurred in contrary, based on reported and verified Welfare Expense,’’ in the cost of different countries in the production of information, the manufacture of manufacture before calculation of a unit of given merchandise may vary manganese metal is technologically overhead, SG&A and profit ratios. The significantly, the amounts of raw sophisticated, involving advanced respondents cite an accounting textbook materials and energy consumed per unit equipment and machinery to support that states that, ‘‘* * * a labor-intensive of output is generally more uniform. complex chemical and electrolytic firm—a firm whose operations are Therefore, the petitioners claim that it is processes. Labor, therefore, would not performed manually and only appropriate to use a labor-exclusive appear to be the central input driving incidentally by machines—should use a basis for calculating the surrogate the overhead and SG&A cost structure of labor-oriented base * * *’’ in making overhead and SG&A percentages in one the producer. labor-exclusive overhead allocations.’’ country that will be used to derive Moreover, we agree with the Citing several past cases, the production costs in a different country. petitioners’ argument that the cited respondents claim further that the Department’s Position: We believe passage is referring to the allocation of standard Department practice is to that the calculation of labor-exclusive factory overhead costs among multiple include such expenses in the COM for surrogate overhead and SG&A products. The issue at hand, however, is determining the overhead, SG&A and percentages is appropriate and the appropriate means of estimating the profit ratios. reasonable. To start, we note that our costs of certain producers (the PRC Furthermore, the respondents argue 14 Tapered Roller Bearing and Parts Thereof, manganese metal manufacturers) based that the fact that the Department Finished and Unfinished, from the People’s on the relative size of certain costs to adopted an approach similar to that Republic of China: Final Results of 1996–97 Antidumping Duty Administrative Review and the total cost structure of other used in the preliminary results in Determination Not to Revoke Order in Part, 63 FR producers (Indian chemicals and metals calculating labor-exclusive overhead 63842 (November 17, 1998) (TRBs–10). manufacturers).
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Furthermore, it is true that the other PRC cases to value these expenses not reported individually in the CMIE overhead and SG&A ratios in TRBs–10 whereas the Department has relied upon Data, based on allocation ratios derived were based on the reported costs of the RBI Data as a basis for valuing from data in a separate publication. particular Indian TRBs producers overhead, SG&A and profit. To support Given that we know so little about how whereas the overhead and SG&A this contention, the respondents cite to this data is collected, aggregated and surrogates in this review are based on several past proceedings and note that, reported, it is not clear that deriving the aggregated data of Indian chemicals in several cases, the surrogates in earlier allocation ratios based on the and metals producers generally as segments were based on other sources information in one publication to adjust published by the Reserve Bank of India. but that in the more recent segments of the data from a different publication is It is important to note, first, that these those proceedings the Department relied methodologically correct and two sources are not that dissimilar given on the RBI Data. reasonable. that the aggregate data presumably The respondents also maintain that, Therefore, considering the uncertainty incorporates the experiences of contrary to the claims of the petitioners, surrounding this data, we find that the individual producers. Any differences the CMIE Data is not specific to continued use of the RBI Data, as used between the surrogates, however, are nonferrous metals producers, but rather, by the Department for valuing beside the point. Whether or not to according to the notes accompanying surrogates in numerous prior PRC cases, exclude labor in deriving overhead and the data, includes information for a is more appropriate for the purposes of SG&A ratios is a methodological issue wide variety of non-metals related this administrative review. manufacturers (e.g., food products, specific to each case which depends on (e) Freight Valuation whether and to what extent the fertilizers, chemicals). Moreover, the Department must adjust and manipulate respondents continue, this data appears Comment 10: In the preliminary the surrogate data to derive cost to encompass ‘‘central government results, we valued inland rail freight estimates that best reflect the public sector’’ companies as well as using Indian rail rates reported in an production costs in the respondents’ companies with an indeterminate August 13, 1997 ore price quotation country. volume of sales. from an Indian manganese mine. The Therefore, for the reasons above, we Department’s Position: We have petitioners argue that manganese metal have continued to derive labor- continued to use the RBI Data in these is packed in drums or closed containers exclusive overhead and SG&A surrogate final results to derive surrogate factory whereas manganese ore is shipped in ratios for these final results. overhead, SG&A and profit ratios. The open rail cars and, therefore, rates Comment 9: To value the Department has used this source of data quoted for ore transportation are not respondents’ factory overhead, SG&A to value these expenses in all previous representative of manganese metal and profit in the preliminary results, we segments of this proceeding as well as freight costs. Instead, the petitioners calculated surrogate ratios based on in numerous other PRC cases. contend, the Department should rely on financial data reported in the Reserve The petitioners’ proposed data is rates published by the Indian Railway Bank of India Bulletin (RBI Data). based on the same source as their Conference Association (IRCA), as Subsequent to the preliminary results, electricity-specific Indian WPI contained in the petitioners’ March 29, the petitioners submitted data published discussed in Comment 4 above. Given 1999 submission. According to the by the Center for Monitoring Indian that the Department has not examined petitioners, this surrogate source for rail Economy (CMIE Data) regarding factory this information in prior proceedings, freight has been used by the Department overhead, SG&A and profit of Indian and given that the publisher of this data in several other cases for valuing the nonferrous metals producers. The appears to be a private research costs of rail transportation of finished petitioners argue that we should use the organization rather than a government metals such as manganese metal. CMIE Data to value these costs because agency, we attempted to analyze the The respondents counter 15 that the the Department’s established practice is methodology used to collect, synthesize petitioners’ proposed surrogate rail rates to base surrogates upon the industry and report this data. Although we do are inappropriate because (1) they came experience closest to the producer not necessarily agree with the inferences into effect only after the POR and (2) the under investigation. The petitioners regarding industry coverage the rates do not apply to the respondents’ suggest that the CMIE Data which is respondents draw from CMIE’s notes on reported freight distances. specific to Indian nonferrous metals its sampling methodologies, we find, Department’s Position: We agree with producers is more representative of nevertheless, that there is insufficient the petitioners that the IRCA data is a manganese metal manufacture than the information on the record to confirm the more accurate surrogate source for rail RBI data, which more broadly accuracy, objectivity, and breadth of freight. In choosing among alternative encompasses the ‘‘processing and coverage (i.e., the extent to which the surrogate values, we select the one that, manufacture’’ of ‘‘metals, chemicals and data reflects the financial experience of inter alia, most broadly represents the products thereof.’’ companies across all of India) of the cost of the input across the surrogate Moreover, the petitioners continue, data presented. country. The surrogate rail values used the RBI Data pertains to the period This paucity of background and in our preliminary results were based on 1992–93, whereas the CMIE Data reports explanatory information for the CMIE the rates offered by one Indian ore financial information for 1996–97 and Data is especially worrisome in light of producer, whereas the IRCA data is, therefore, more contemporaneous the fact that, as the petitioners note, provided by the petitioners represents with the POR. The petitioners thus several further adjustments must be rates widely available throughout India, conclude that the CMIE Data is a more made to the reported data so that it as published with the authority of the appropriate basis for deriving surrogate comports with the standard definitions central Indian government. ratios for overhead, SG&A and profit. and methodology underlying the It is true that, all other things being The respondents disagree that the Department’s surrogate overhead, SG&A equal, the Department will normally CMIE Data is the most appropriate and profit calculations. For instance, in surrogate source for these expenses for their proposed calculation of a factory 15 Based on the context of the comment, the respondents appear to be addressing the petitioners’ several reasons. First, this source has overhead rate, the petitioners estimated proposed rail freight although the actual text of never been used by the Department in certain expense line items, which were respondents’ comment refers to ‘‘truck rates.’’
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49458 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices choose the surrogate value most CMIECHN/CNIECHN was unable to economy carrier. Therefore, in these contemporaneous with the POR. In this support at verification its claim that it final results the Department has instance, however, the IRCA values purchased ocean freight services from continued to value CMIECHN/ came into effect only roughly five market-economy carriers and that there CNIECHN’s ocean freight costs using a months after the POR. Moreover, is no evidence that the PRC companies surrogate freight rate. With regard to the although the IRCA data submitted by from which CMIECHN/CNIECHN respondents’ arguments regarding the petitioners does not correspond to purchased ocean freight acted merely as which surrogate value we should use for the reported rail distances for the agents for the market-economy carriers, ocean freight, see the following respondents’ factor inputs, the data does rather than PRC resellers of ocean comment. correspond to the distances reported for freight services. Comment 12: The petitioners state the rail transportation of the The petitioners argue, citing to 19 that, consistent with the Department’s respondents’ end product. The input U.S.C. 1673b(c) of the Act, that the established practice of using the most freight costs are inconsequential relative Department cannot use the ocean freight specific surrogate data available, the to the costs of transporting inland the information provided by the Department should rely on the ocean manganese metal. We note that the respondents because transactions freight values submitted by the surrogate value used in the preliminary between NME entities are presumed to petitioners subsequent to the results and favored here by the be distorted and unuseable for purposes preliminary results, since these values respondents did not directly correspond of calculating a dumping margin. The are both route- and product-specific. to the reported transportation distances petitioners point out that the The petitioners contend that the ocean of either the input factors or the Department will normally determine freight surrogates used in the manufactured manganese metal. ocean freight using the actual amounts preliminary results are not as accurate Finally, we note that the IRCA data paid by NME entities to market- because they are based on averages of has been used in other recent cases by economy shippers; however, in quoted rates to the U.S. east and west the Department to value PRC rail freight situations where the NME exporter coasts freight rates, taken from TRBs– rates.16 Therefore, weighing all of the purchased the ocean freight services 9 18 and adjusted using the U.S. above considerations, we find that the from an NME entity, the Department producer price index. The petitioners IRCA data is the most appropriate must use a surrogate value. In maintain that the freight quotations they surrogate source for valuing the Saccharin,17 note the petitioners, the provided are specific to manganese respondents’ rail freight costs, and have Department rejected the use of an actual metal and are specific to the actual revised the calculations for these final freight cost, as directed by the statute, routes and destinations, as reported by results accordingly. because those costs were purchased the respondents, to which the subject Comment 11: The respondents claim from a domestic supplier in an NME. merchandise was shipped. that the Department’s decision to apply The petitioners further argue that the The respondents counter that if the facts available to value ocean freight fact that CMIECHN/CNIECHN paid rates Department uses a surrogate to value was unreasonable and ungrounded and to NME entities that are well below ocean freight in these final results, the that the Department should use surrogate rates is evidence that it did Department should continue to use the CMIECHN/CNIECHN’s reported not pay market-determined rates. surrogate source used in the preliminary information to value ocean freight in Department’s Position: We agree with results. The petitioners’ preferred these final results. The respondents the petitioners that CMIECHN/ surrogate rates, the respondents claim, argue that although the bills of lading CNIECHN was unable to support its should be disregarded as aberrational reviewed at verification did not show claim that it purchased ocean freight because these rates increased in excess freight charges, they are otherwise services from market-economy carriers. of inflation over a three-year period. accurate and complete, and can be tied Furthermore, the respondents have not Furthermore, the respondents note, the to CMIECHN/CNIECHN’s expense supplied evidence that the PRC agents petitioners’ rate quotes were in effect ledgers and audited financial statements from which CMIECHN/CNIECHN only after the POR. Moreover, the which show the applicable freight allegedly purchased ocean freight acted respondents note that the petitioners’ charges. Additionally, the respondents as agents for the market-economy quotations are not publicly available state that it is not reasonable to carriers, rather than as PRC resellers of published information. disregard CMIECHN/CNIECHN’s ocean freight services. At verification, Department’s Position: We have international freight information on the the Department reviewed ocean freight continued to use the surrogate rates basis that the payments for this service documentation for the majority of used to value ocean freight in the were made through a local Chinese CMIECHN/CNIECHN’s sales. Ultimately preliminary results. Although the agent. The respondents point out that the verification team could not petitioners’ rates appear to be closer to foreign freight forwarders must hire determine that the ocean freight (though still not contemporaneous with) local agents to handle billing if that CMIECHN/CNIECHN reported as the POR than those used in our company is not locally registered. supplied by a market-economy carrier preliminary results, the petitioners However, if the Department determines was, in fact, supplied by a market- surrogate information, in its entirety, that it should continue to apply facts economy carrier. Furthermore, the bills was submitted as proprietary data. As available for ocean freight, the of lading did not tie to the other stated in the Department’s response respondents argue that it should documentation pertaining to the ocean above to the comment regarding calculate a more reasonable surrogate freight costs nor did they tie to the selenium dioxide surrogate values, the value based on price quotations from a company’s accounting records. regulations at section 351.408(c)(1) state sample of international forwarding Additionally, there was no evidence that the Department ‘‘will normally use companies. that CMIECHN/CNIECHN purchased 18 The petitioners contend that the ocean freight directly from the market- Tapered Roller Bearings and Parts Thereof, Department should reject the Finished and Unfinished, From the People’s Republic of China; Preliminary Results of respondents’ argument because 17 Final Determination of Sales at Less Than Fair Antidumping Duty Administrative Review and Value; Saccharin from the People’s Republic of Partial Termination of Administrative Review, 62 16 See, e.g., TRBs–10. China, 59 FR 58818, 58825 (November 15, 1994). FR 36764 (July 9, 1997) (TRBs–9).
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49459 publicly available information to value mud is not an ore, but a by-product Finally, the petitioners conclude, factors.’’ In this instance, the resulting from the electrolytic electrolytic manganese dioxide (EMD) petitioners’ ocean freight rate quotations processing of MnO2 ore. Therefore, the prices should not be used as a surrogate do not constitute publicly available respondents reason, a product resulting value for positive mud because EMD is information. from the transformation of the ore a high-value product used mainly in the Moreover, there is no information on cannot be considered to be the ore itself. production of dry-cell batteries, and was the record that suggests the rates used Rather, the resulting product should specifically rejected by the Department in TRBs–9, as supplied by the same command a higher price than the ore. as a surrogate in the first administrative shipping company that supplied the However, the IMY 82–84 percent ore review in this proceeding. petitioners’ rates, are not applicable to surrogate value the Department used for Department’s Position: As suggested the shipment of manganese metal. positive mud was ‘‘at an almost 100 by the parties’ comments, we have Therefore, because the TRBs–9 rates are percent lower price’’ than the surrogate considered this issue in prior segments publicly available information, and the Department used to value the of this proceeding. As in the first because there is no reason to believe respondents’ ‘‘ore 2’’ input. administrative review, we disagree with they are not representative of the costs According to the respondents, the the respondents’ contention that the of shipping manganese metal, we have IMY 82–84 percent manganese dioxide IMY 82–84 percent manganese dioxide continued to use these rates as a ore surrogate value is clearly ore is an inappropriate surrogate for surrogate for valuing ocean freight in aberrational and should be disregarded. valuing positive mud. In the First these final results. This finding would be consistent with Review Results we stated, (f) Packing Material Valuation the Department’s practice in the LTFV The Department disagrees with the Investigation where, according to the Comment 13: The petitioners claim respondents’ argument for the use of EMD as respondents, to value this by-product that the Import Statistics used by the a surrogate value. First, the respondents are the Department used manganese dioxide incorrect in stating that the Department used Department as surrogate values for but not manganese dioxide ore. for a by-product surrogate in the LTFV plastic bags and wooden pallets are Therefore, conclude the respondents, in Investigation an Indian import value for based on imports that pre-date the POR. these final results the Department manganese dioxide excluding ores. In the The petitioners argue that the should use a value for electrolytic LTFV Final Determination, the Department Department should rely on the data used an 82–84 percent MnO2 peroxide ore, manganese dioxide (EMD) to value submitted by the petitioners subsequent as listed in the 1993 Indian Minerals positive mud. to the preliminary results to value Yearbook, to value the respondents’ by- plastic bags and pallets because this The petitioners counter that the IMY product credit. EMD is a very high-valued import data, for the period June 1997 82–84 percent manganese dioxide ore product used mainly in the production of dry-cell batteries * * * The respondents through October 1997, is price used in the preliminary results is a proper surrogate. The petitioners note have not sufficiently demonstrated that the contemporaneous with the POR. PRC by-product is of the same rigorous The respondents agree with the that respondents did not provide detailed information specifying the full specifications as EMD. Department’s choice of surrogates in the The respondents have demonstrated, preliminary results for packing metallurgical content of the positive however, that their by-product does have materials. mud. And, in fact, the only specification some resale value. In lieu of any information Department’s Position: We agree with the respondents did provide’the on the Indian value of the actual by-product the petitioners. We have reviewed the manganese oxide content’was roughly in question, the Department is maintaining Import Statistics used in the preliminary comparable to that of the IMY 82–84 the methodology used in the LTFV Final results to value plastic bags and wooden percent surrogate. Determination of using for a surrogate the According to the petitioners, the price of high-valued Indian manganese pallets and note that, although these dioxide ore. (63 FR at 12448). Import Statistics cover Indian imports in respondents’ argument that, based on general through the initial months of the reported differences in manganese Moreover, we find the respondents’ POR, there appear not to have been POR contents, the value of the positive mud comparison of the surrogate value for imports within the particular product surrogate value should be almost double positive mud with the surrogate value categories relevant to the packing the value of the ore 2 surrogate value, for ore 2 to be misplaced. The materials in question. The more recent is mistaken and is based on confusion respondents reason that the value of a Import Statistics submitted by the in understanding the reported by-product must be greater than the petitioners subsequent to the metallurgical composition; the content value of an input from which the by- preliminary results, however, report of the positive mud is stated as a product was generated. However, a by- POR imports for these particular percentage of manganese dioxide product (as distinct from a co-product) product categories. Therefore, in these whereas the content of the ore 2 is something that is generated final results we have based our surrogate is stated in terms of incidentally in the course of valuation of plastic bags and wooden manganese (only). The petitioners state manufacturing some primary finished pallets on these more recent Import that the IMY 82–84 manganese dioxide good, in this case manganese metal. The Statistics. ore is an appropriate surrogate for fact that the respondents’ by-product positive mud precisely because the happens to have some residual value (4) Valuation of By-Product Credit MnO2 content is the only specification does not require that value to be greater Comment 14: To value the ‘‘positive reported by the respondents for the than the value of the ore used in the mud’’ generated as a by-product in positive mud. The MnO2 content is manufacturing process. manganese metal manufacture, we have known for the 82–84 percent ore but not The respondents imply that our used the 82–84 percent manganese known for the ore 2 surrogate value. choice of a lower-valued by-product dioxide ore price published in the Using the IMY 82–84 percent surrogate surrogate suggests value destruction, Indian Minerals Yearbook (IMY). The enables the Department to make the which occurs when the value of the respondents argue that this IMY 82–84 appropriate adjustments to the surrogate inputs is greater than the value of the percent ore is an incorrect surrogate price to reflect the actual MnO2 content final product. This is not the case. The value, for several reasons. First, positive of the positive mud. value created in this manufacturing
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49460 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices process is captured in the price of the 751(a)(1) of the Act: (1) For HIED and results of administrative review of the primary product—manganese metal— CMIECHN/CNIECHN, the cash deposit countervailing duty order on industrial and is fully recoverable, under normal rate will be the rates for these firms phosphoric acid (IPA) from Israel for the market conditions, in the sale of that established in the final results of this period January 1, 1997 through product. Any value recovered from the review; (2) for Minmetals and CEIEC, December 31, 1997 (64 FR 24582). The sale of the by-product merely serves to which we determined to be entitled to Department has now completed this offset the production costs incurred in a separate rate in the LTFV Investigation administrative review in accordance the production of the primary product. but which did not have shipments or with section 751(a) of the Tariff Act of We, therefore, have not changed our entries to the United States during the 1930, as amended. For information on choice of the positive mud surrogate POR, the rates will continue to be 5.88 the net subsidy for each reviewed value for these final results. percent and 11.77 percent, respectively company, and for all non-reviewed Final Results of the Review (these are the rates which currently companies, please see the Final Results apply to these companies); (3) for all of Review section of this notice. We will We hereby determine that the other PRC exporters, all of which were instruct the U.S. Customs Service to following weighted-average margins found not to be entitled to a separate assess countervailing duties as detailed exist for the period February 1, 1997, rate, the cash deposit rate will continue in the Final Results of Review section of through January 31, 1998: to be 143.32 percent; and (4) for non- this notice. PRC exporters of subject merchandise Margin EFFECTIVE DATE: September 13, 1999. Exporter (percent) from the PRC, the cash deposit rate will be the rate applicable to the PRC FOR FURTHER INFORMATION CONTACT: CMIECHN/CNIECHN ...... 4.30 supplier of that exporter. These deposit Dana Mermelstein or Sean Carey, Office HIED ...... 143.32 requirements, when imposed, shall of CVD/AD Enforcement VII, Import remain in effect until publication of the Administration, International Trade Because we are rescinding the review final results of the next administrative Administration, U.S. Department of with respect to CEIEC and Minmetals, review. Commerce, 14th Street and Constitution the respective company-specific rates This notice also serves as a final Avenue, NW, Washington, DC 20230; for these exporters remain unchanged. reminder to importers of their telephone: (202) 482–3208 or (202) 482– Assessment and Cash Deposit Rates responsibility under 19 CFR 351.402(f) 3964, respectively. to file a certificate regarding the SUPPLEMENTARY INFORMATION: The Department shall determine, and reimbursement of antidumping duties Customs shall assess, antidumping prior to liquidation of the relevant Background duties on all appropriate entries. The entries during this review period. Department will issue appraisement Failure to comply with this requirement Pursuant to 19 CFR 351.213(b), this instructions directly to Customs. review covers only those producers or In order to assess duties on could result in the Secretary’s presumption that reimbursement of exporters of the subject merchandise for appropriate entries as a result of this which a review was specifically review, we have calculated entry- antidumping duties occurred and the subsequent assessment of double requested. Accordingly, this review specific duty assessment rates based on covers Rotem-Amfert Negev Ltd. the ratio of the amount of duty antidumping duties. We are issuing and publishing this (Rotem) and Haifa Chemicals Ltd. calculated for each of CMIECHN/ determination in accordance with (Haifa). Haifa did not export the subject CNIECHN’s verified sales during the sections 751(a)(1) and 777(i)(1) of the merchandise during the period of POR to the total entered value of the Act. review (POR). Therefore, in accordance corresponding entry. The Department Dated: September 7, 1999. with section 351.213(d)(3) of the will instruct Customs to assess these Department of Commerce’s (the Richard W. Moreland, rates only on those entries which Department) regulations, we are correspond to sales verified by the Acting Assistant Secretary for Import rescinding the review with respect to Administration. Department as having been made Haifa. This review also covers eleven directly by CMIECHN/CNIECHN. The [FR Doc. 99–23777 Filed 9–10–99; 8:45 am] programs. Department will also instruct Customs BILLING CODE 3510±DS±P to liquidate all POR entries by bona fide Since the publication of the third-country resellers at rates equal to preliminary results, the following events the cash deposit rate required at the DEPARTMENT OF COMMERCE have occurred. We invited interested time of their entry. parties to comment on the preliminary On all remaining entries that entered International Trade Administration results. On June 7, 1999 case briefs were under CMIECHN/CNIECHN’s cash [C±508±605] filed by both petitioners (FMC deposit rate, the Department will Corporation and Albright & Wilson instruct Customs to assess the PRC-wide Industrial Phosphoric Acid From Americas Inc.) and respondents (the rate of 143.32 percent. The Department Israel: final results and partial Government of Israel (GOI) and Rotem- will likewise instruct Customs to assess recission of countervailing duty Amfert Negev, the producer/exporter of the facts available rate, also 143.32 administrative review IPA to the United States during the review period). On June 11, 1999, percent, on all POR entries which AGENCY: Import Administration, respondents filed a rebuttal brief; entered under HIED’s cash deposit rate. International Trade Administration, petitioners filed a rebuttal brief on June Moreover, the following cash deposit Department of Commerce. requirements will be effective upon 14, 1999. ACTION: Notice of final results and publication of the final results of this partial recission of Countervailing Duty Applicable Statute and Regulations administrative review for all shipments administrative review. of the subject merchandise entered, or Unless otherwise indicated, all withdrawn from warehouse, for SUMMARY: On May 7, 1999, the citations to the statute are references to consumption on or after the publication Department of Commerce published in the provisions of the Tariff Act of 1930, date, as provided for by section the Federal Register its preliminary as amended by the Uruguay Round
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Agreements Act (URAA) effective creating an entirely new benefit stream the portion of the purchase price paid January 1, 1995 (the Act). The for that grant. for ICL’s shares that went toward the Department is conducting this In this administrative review, the repayment of prior subsidies. In the administrative review in accordance Department is considering non- 1994 privatization, less than 0.5 percent with section 751(a) of the Act. All recurring subsidies previously allocated of ICL shares were privatized. We citations to the Department’s regulations in earlier administrative reviews under determined that the percentage of reference 19 CFR Part 351 (1998), unless the old practice, non-recurring subsidies subsidies potentially repaid through this otherwise indicated. also previously allocated in recent privatization could have no measurable administrative reviews under the new impact on Rotem’s overall net subsidy Scope of the Review practice, and non-recurring subsidies rate. Thus, we did not apply our Imports covered by this review are received during the instant POR. repayment methodology to the 1994 shipments of industrial phosphoric acid Therefore, for purposes of these partial privatization. See 1994 Final (IPA) from Israel. Such merchandise is preliminary results, the Department is Results, 61 FR at 53352. However, we classifiable under item number using the original allocation period of are applying this methodology to the 2809.20.00 of the Harmonized Tariff 10 years assigned to non-recurring 1997 partial privatization because 17 Schedule (HTS). The HTS item number subsidies received prior to the 1995 percent of ICL’s shares were sold. This is provided for convenience and U.S. administrative review (the first review approach is consistent with our findings Customs Service purposes. The written for which the Department implemented in the GIA and Department precedent description of the scope remains the British Steel I decision). For non- under the URAA. See e.g., GIA, 58 FR dispositive. recurring subsidies received since 1995, at 37259; Certain Hot-Rolled Lead and Rotem has submitted, in each Subsidies Valuation Information Bismuth Carbon Steel Products from the administrative review including this United Kingdom; Final Results of Period of Review one, AUL calculations based on Countervailing Duty Administrative depreciation and asset values of The period for which we are Review, 61 FR 58377 (November 14, productive assets reported in its 1996); Final Affirmative Countervailing measuring subsidies is calendar year financial statements. In accordance with 1997. Duty Determination: Certain Pasta from the Department’s practice, we derived Italy, 61 FR 30288 (June 14, 1996). Allocation Period Rotem’s company-specific AUL by dividing the aggregate of the annual Discount Rates In British Steel plc. v. United States, average gross book values of the firm’s 879 F. Supp. 1254 (CIT 1995) (British We considered Rotem’s cost of long- depreciable productive fixed assets by term borrowing in U.S. dollars as Steel I), the U.S. Court of International the firm’s aggregated annual charge to Trade (the Court) ruled against the reported in the company’s financial depreciation for a 10-year period. In the statements for use as the discount rate allocation period methodology for non- current review, this methodology has recurring subsidies that the Department used to allocate the countervailable resulted in an AUL of 23 years; thus, benefit over time. However, this had employed for the past decade, a non-recurring subsidies received during methodology that was articulated in the information includes Rotem’s borrowing the POR have been allocated over 23 from its parent company, ICL, and thus General Issues Appendix appended to years. the Final Affirmative Countervailing does not provide an appropriate Duty Determination: Certain Steel Privatization discount rate. Therefore, we considered ICL’s cost of long-term commercial Products from Austria, 58 FR 37217 Israel Chemicals Limited (ICL), the borrowing in U.S. dollars in each year (July 9, 1993) (GIA). In accordance with parent company which owns 100 the Court’s decision on remand, the percent of Rotem’s shares, was partially from 1984 through 1997 as the most Department determined that the most privatized in 1992, 1993, 1994, and appropriate discount rate. ICL’s interest reasonable method of deriving the 1995. In this administrative review, the rates are shown in the notes to the allocation period for non-recurring Government of Israel (GOI) and Rotem company’s financial statements, public subsidies is a company-specific average reported that additional shares of ICL documents which are in the record of useful life (AUL) of non-renewable were sold in 1997. We have previously this review. See Comment 9 in the 1995 physical assets. This remand determined that the partial privatization Final Results. determination was affirmed by the Court of ICL represents a partial privatization Analysis of Programs on June 4, 1996. British Steel plc. v. of each of the companies in which ICL Based upon the responses to our United States, 929 F.Supp 426, 439 (CIT holds an ownership interest. See Final 1996) (British Steel II). Results of Countervailing Duty questionnaire and written comments However, in administrative reviews Administrative Review; Industrial from the interested parties, we where the Department examines non- Phosphoric Acid from Israel, 61 FR determine the following: recurring subsidies received prior to the 53351, 53352 (October 11, 1996) (1994 I. Programs Conferring Subsidies period of review (POR) which have been Final Results). In this review and prior countervailed based on an allocation reviews of this order, the Department A. Encouragement of Capital period established in an earlier segment found that Rotem and/or its Investments Law (ECIL) of the proceeding, it is not practicable predecessor, Negev Phosphates Ltd., In the preliminary results, we found to reallocate those subsidies over a received non-recurring countervailable that this program conferred different period of time. Where a subsidies prior to these partial countervailable subsidies on the subject countervailing duty rate in earlier privatizations. Further, the Department merchandise. Our review of the record segments of a proceeding was calculated found that a portion of the price paid by and our analysis of the comments based on a certain allocation period and a private party for all or part of a submitted by the interested parties, resulted in a certain benefit stream, government-owned company represents summarized below, has not led us to redefining the allocation period in later partial repayment of prior subsidies. See modify our calculations for this program segments of the proceeding would entail GIA, 58 FR at 37262. Therefore, in 1992, from the preliminary results. taking the original grant amount and 1993, and 1995 reviews, we calculated Accordingly, the net subsidy for this
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49462 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices program remains unchanged from the Rotem’s net worth in each year (i.e., net argument. In the 1995 review, the preliminary results and is as follows: worth is, by definition, the Department reasoned that respondents [Percent ad valorem] accumulation of a company’s financial had ignored the fact that the value of the results since its inception), resulting in subsidies is eroding over time. See 1995 Manufacturer/exporter Rate a ratio of apples to oranges. Final Results. Respondents further note Respondents note that in calculating that in the 1996 review, the Department Rotem Amfert Negev ...... 5.43 the ‘‘gamma’’ used in the privatization took the position that respondents calculation, the Department did not incorrectly assumed ‘‘that the B. Infrastructure Grant Program include in the numerators the subsidies company’s net worth increased in direct In the preliminary results, we found received by Rotem arising from ECIL proportion to the value of the subsidies that this program conferred grants to projects 8, 12, and 13. received by the firm.’’ 64 FR at 2884. countervailable subsidies on the subject Respondents note that although grants Respondents now argue that the to projects 12 and 13 were fully merchandise. We did not receive any Department’s 1995 conclusion ignores countervailed in prior administrative comments on this program from the the fact that the net worth of the reviews, Rotem nevertheless reported interested parties, and our review of the company is also eroding to a these grants so the Department could record has not led us to change any comparable degree as a result of the include them in the gamma calculation. findings or calculations. Accordingly, depreciation of the company’s assets However, the Department failed to the net subsidy for this program remains (that is, but for additional capital include these grants in the gamma unchanged from the preliminary results infusions, some of which are subsidies numerators in the relevant years, and and is as follows: included in the gamma numerator did not include any grants to project 8 which increase the company’s net [Percent ad valorem] in the gamma numerators, presumably worth, the net worth would also decline because of the earlier finding that grants Manufacturer/exporter Rate over time, just as the subsidies do). This to project 8 do not benefit IPA depreciation of assets (which is manifest Rotem Amfert Negev ...... 0.22 production. Respondents argue that in in the denominator), according to calculating gamma, the Department is respondents, offsets the erosion of the not seeking to determine the level of II. Programs Found to be Not Used subsidies (manifest in the numerator) countervailable subsidization, but rather over time. Respondents also argue that In the preliminary results, we found the level of total subsidization, relative the Department’s 1996 reasoning ignores that the producers and/or exporters of to a company’s net worth. Respondents the fact that the grants to Rotem were the subject merchandise did not apply cite the final results of the prior ‘‘capital infusions’’ used by Rotem to for or receive benefits under the administrative review, where the build infrastructure, illustrating that, following programs: Department stated that the ‘‘gamma contrary to the Department’s 1. Encouragement of Industrial research calculation serves as a reasonable conclusion, Rotem’s equity is increasing and Development Grants (EIRD) historic surrogate for the percentage of as a result of the grants, in direct 2. Environmental Grant Program subsidies that constitute the overall proportion to their value. Finally, 3. Reduced Tax Rates under ECIL value (i.e. net worth of the company) at respondents argue that the Department’s 4. ECIL Section 24 Loans a given point in time,’’ (64 FR at 2884) privatization calculation methodology is 5. Dividends and Interest Tax Benefits and argue that the only way the gamma internally inconsistent because the can be an accurate historic surrogate is under Section 46 of the ECIL Department does not accumulate the if all the subsidies received are included 6. ECIL Preferential Accelerated subsidies to calculate the gamma, but in its calculation. Respondents note that Depreciation does so to calculate the percent of the Department rejected this argument 7. Exchange Rate Risk Insurance subsidies repaid: the net present value in the previous administrative review, Scheme (NPV) used in the privatization formula and urge the Department to reconsider 8. Labor Training Grants is nothing more than the subsidies 9. Long-Term Industrial Development its position. See Final Results of accumulated, based on a ten year, Loans Countervailing Duty Administrative declining benefit stream. Thus, Review; Industrial Phosphoric Acid We did not receive any comments on respondents argue, the subsidies are from Israel, 64 FR 2879 (January 19, these programs from the interested being accumulated for the ‘‘percent parties, and our review of the record has 1999) (1996 Final Results). Respondents also argue that the repaid’’ calculation, but are not being not led us to change our findings from accumulated for the gamma calculation. the preliminary results. numerators and the denominators used in calculating the gamma are not According to respondents, either both Analysis of Comments consistent in that the value of the should be accumulated or neither should be accumulated. Comment 1: The Privatization denominators, Rotem’s net worth in Petitioners note that respondents Calculation each of the relevant years is, by definition, an accumulated value, while make two now familiar attacks on the Respondents contend that the the value the Department uses in the Department’s privatization Department’s privatization calculation numerators, the value of the subsidies in methodology. Petitioners contend that is incorrect and should be corrected in the same year, is not an accumulated the Department has properly rejected two areas: the numerators used in the value. Respondents argue that the these arguments in the past two ratios which are averaged to calculate Department should correct this administrative reviews of this order. the ‘‘gamma’’ should include all of the methodological error by using a value in With respect to including all, rather subsidies received by Rotem over the the numerator which represents the than just countervailable subsidies in years; and, the gamma itself is accumulated value of the subsidies in the gamma numerators, petitioners understated because the numerators the relevant year. argue that this would lead to the absurd contain only the grants received in a Respondents note that in both the result of requiring the Department to given year, while the denominators are 1996 and the 1995 administrative investigate all subsidies, regardless of accumulated values in that they contain reviews, the Department rejected this their countervailability, to construct an
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See, GIA, 58 FR at 37263, and administrative reviews. the accumulated value of a company’s 1995 Final Results, 63 FR at 13635, subsidies in the year before Department’s Position 13636. This methodology has been privatization to the company’s net accepted by the courts as a reasonable The Department has considered worth in that year would overstate the way to determine the impact of respondents’ arguments with respect to value of the subsidies in relationship to privatization on previously bestowed the privatization methodology in the the company’s net worth by assuming subsidies. See Inland Steel Bar Co., v. last two administrative reviews of this that a company’s net worth increases in United Engineering Steels, Ltd., 155 countervailing duty order. See 1995 direct proportion to the value of the F.3d 1370, 1374–75 (Fed. Cir. 1998) (the Final Results; 1996 Final Results. We subsidies received by that firm. Court affirmed the Department’s continue to believe that these arguments Moreover, as we stated in the last methodology for determining the are without merit. First, the Department administrative review, a company’s net amount of a subsidy that is repaid); does not calculate a benefit from worth is not increasing in direct Saarstahl AG v. United States, 177 F. 3d subsidies which have been fully proportion to the value of the subsidies 1314 (Fed. Cir. 1999). countervailed, or subsidies that are not received because the value of the countervailable because they do not subsidies is eroding over time. See 1996 Comment 2: Rotem’s AUL Calculation benefit the subject merchandise. Final Results. Therefore, the Department’s We also reject respondents’ suggestion Petitioners contend that the privatization methodology does not that the Department either remove the Department’s calculation of Rotem’s address the repayment of such net present value element from the AUL is flawed in that it excludes a subsidies. After calculating the gamma, ‘‘percent repaid’’ calculation or add it to category of assets referred to as and therefore determining the portion of the gamma calculation (by accumulating ‘‘Furniture, vehicles, and equipment.’’ the purchase price which ‘‘repays’’ past the subsidies). This suggestion might Petitioners argue that it is inappropriate subsidies, that portion of the purchase have merit if our gamma methodology for the Department to accept Rotem’s price is deducted from the net present only considered the subsidies to net explanation that these assets should be value of the remaining benefit stream of worth ratio in the year prior to excluded from the AUL calculation all non-recurring subsidies that are privatization in isolation. However, the because they are not ‘‘productive being countervailed. If all subsidies gamma looks at ten years of data and assets.’’ Some of these assets are were included in the gamma numerator, averages those ten years, thus providing identified by Rotem as ‘‘office the net present value calculation would a historical context to the ratio of equipment’’ which, according to also have to include all other subsidies, subsidies to net worth over time. In petitioners consists of computers and/or even if they were found not to benefit addition, we note that while the gamma related software which may be essential the production of subject merchandise, itself does not factor in the net present to Rotem’s production and operations; or if they have already been fully value of past subsidies, the results of the assets identified as ‘‘vehicles’’ could, countervailed. Accepting respondents’ gamma calculation are applied to the petitioners maintain, be used in, or arguments would require the present value of the remaining benefit essential to, production and operations. Department to monitor and allocate over streams at the time of privatization. Petitioners believe that the time even subsidies which were found Thus, our current calculations, as a determination of what constitutes non-countervailable, in the event that a whole, do properly account for the productive assets is a factual company were to experience a change in present value of the remaining benefits determination which the Department ownership at some time during the at the time of privatization. See Final must make on a case-by-case basis; administration of a countervailing duty Affirmative Countervailing Duty petitioners maintain that the record in order. This practice could give rise to Determination: Certain Hot-Rolled Flat this review does not contain the many unintended consequences, Rolled Carbon Quality Steel Products necessary factual information for this including increasing respondents’ from Brazil, 64 FR 38742 (July 19, 1999); determination. Petitioners urge the burden of complying with the 1996 Final Results. Department to require Rotem to provide countervailing duty law, and allowing Finally, respondents have once again a detailed listing of the specific assets the parties to continue to address issues provided a Coopers & Lybrand report in which comprise this category and their relating to a program’s support of their privatization uses so that the Department can countervailability, regardless of earlier methodology arguments and maintain evaluate and petitioners can comment findings. that the Department’s failure to accept on whether they should be included in Second, we reject respondents’ this report in the last two administrative the AUL calculation. argument that the Department’s reviews indicates that the Department privatization methodology is does not understand the arguments Respondents note that it should be inconsistent by virtue of the gamma presented therein. As explained above, clear from the items enumerated that the denominator representing accumulated while the Department does appreciate category is intended for office-type net worth and the gamma numerator not the argument, we do not believe that it assets. Productive assets are accounted representing the accumulated value of merits a change in our privatization for in the category ‘‘facilities, subsidies received over time. Thus, we methodology. This methodology aims, machinery, and equipment,’’ and reject respondents’ conclusion that the through the calculation of the gamma, to respondents believe that the difference methodology assumes that the benefits determine the percentage of subsidies between productive and non-productive of a subsidy disappear at the end of the that constitute the overall value (i.e., net assets is clear from the accounting year of receipt. As we stated in the 1995 worth) of the company at a given point records.
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Department’s Position deposit rate, and cash deposits must DEPARTMENT OF COMMERCE We disagree with petitioners’ continue to be collected at the rate International Trade Administration argument that the category of Rotem’s previously ordered. As such, the countervailing duty cash deposit rate assets entitled ‘‘furniture, vehicles, and Final Results of Full Sunset Review: applicable to a company can no longer office equipment,’’ requires any further Sugar From the European Community examination by the Department. Rotem change, except pursuant to a request for complied with the Department’s request a review of that company. See Federal- [C±408±046] and provided information from its Mogul Corporation and The Torrington AGENCY: Import Administration, audited financial statements for use in Company v. United States, 822 F.Supp. International Trade Administration, the Department’s company-specific AUL 782 (CIT 1993); Floral Trade Council v. Department of Commerce. calculations. We note that the United States, 822 F.Supp. 766 (CIT ACTION: Notice of Final Results of Full verification reports from the 1995 1993). Therefore, the cash deposit rates Sunset Review: Sugar From the administrative review, which were for all companies except those covered European Community. submitted on the record of the current by this review will be unchanged by the review, discuss the calculation of results of this review. SUMMARY: On April 26, 1999, the Department of Commerce (‘‘the Rotem’s company-specific AUL and its We will instruct Customs to continue components. The information discussed Department’’) issued the preliminary to collect cash deposits for non- results of full sunset review of the in these reports is consistent with the reviewed companies at the most recent information that Rotem submitted countervailing duty order on sugar from company-specific or country-wide rate during the current review. Therefore, the European Community (‘‘the EC’’) (64 applicable to the company. Accordingly, because respondent submitted its AUL FR 20257) pursuant to section 751(c) of the cash deposit rates that will be information in the manner that the the Tariff Act of 1930, as amended (‘‘the applied to non-reviewed companies Department requested and this Act’’). We provided interested parties an information has previously been covered by this order will be the rate for opportunity to comment on our verified and tied to Rotem’s audited that company established in the most preliminary results. We received financial statements, we find no reason recently completed administrative comments filed on behalf of domestic to change the calculation of Rotem’s proceeding conducted under the Act, as interested parties. As a result of this AUL for these final results. amended by the URAA. If such a review review, the Department finds that has not been conducted, the rate revocation of the countervailing duty Final Results of Review established in the most recently order would be likely to lead to In accordance with 19 CFR completed administrative proceeding continuation or recurrence of a 351.221(b)(4)(i), we calculated an pursuant to the statutory provisions that countervailable subsidy. The net individual subsidy rate for each were in effect prior to the URAA countervailable subsidy and the nature producer/exporter subject to this amendments is applicable. See 1992/93 of the subsidy are identified in the administrative review. For the period Final Results, 61 FR at 28842. These ‘‘Final Results of Review’’ section of this January 1, 1997 through December 31, rates shall apply to all non-reviewed notice. 1997, we determine the net subsidy for companies until a review of a company FOR FURTHER INFORMATION CONTACT: Rotem to be 5.65 percent ad valorem. assigned these rates is requested. In Scott E. Smith or Melissa G. Skinner, We will instruct the U.S. Customs addition, for the period January 1, 1997 Office of Policy for Import Service (Customs) to assess through December 31, 1997, the Administration, International Trade countervailing duties as indicated assessment rates applicable to all non- Administration, U.S. Department of above. The Department will also reviewed companies covered by this Commerce, 14th & Constitution, N.W., instruct Customs to collect cash order are the cash deposit rates in effect Washington, D.C. 20230; telephone: deposits of estimated countervailing at the time of entry. (202) 482–6397 or (202) 482–1560, duties in the percentages detailed above This notice serves as a reminder to respectively. of the f.o.b. invoice price on all parties subject to administrative EFFECTIVE DATE: September 13, 1999. shipments of the subject merchandise protective order (APO) of their from reviewed companies, entered, or Statute and Regulations responsibility concerning the withdrawn from warehouse, for This review was conducted pursuant disposition of proprietary information consumption on or after the date of to sections 751(c) and 752 of the Act. disclosed under APO in accordance publication of the final results of this The Department’s procedures for the review. with 19 CFR 351.305(a)(3). Timely conduct of sunset reviews are set forth Because the URAA replaced the written notification of return/ in Procedures for Conducting Five-year general rule in favor of a country-wide destruction of APO materials or (‘‘Sunset’’) Reviews of Antidumping and rate with a general rule in favor of conversion to judicial protective order is Countervailing Duty Orders, 63 FR individual rates for investigated and hereby requested. Failure to comply is 13516 (March 20, 1998) (‘‘Sunset reviewed companies, the procedures for a violation of the APO. Regulations’’) and in 19 CFR Part 351 establishing countervailing duty rates, This administrative review is issued (1998) in general. Guidance on including those for non-reviewed and published in accordance with methodological or analytical issues companies, are now essentially the same sections 751(a)(1) and 777(i)(1) of the relevant to the Department’s conduct of as those in antidumping cases, except as Act (19 U.S.C. 1675(a)(1)). sunset reviews is set forth in the provided for in § 777A(e)(2)(B) of the Department’s Policy Bulletin 98:3— Dated: September 7, 1999. Act. The requested review will normally Policies Regarding the Conduct of Five- cover only those companies specifically Richard W. Moreland, year (‘‘Sunset’’) Reviews of named. See 19 CFR 351.213(b). Pursuant Acting Assistant Secretary for Import Antidumping and Countervailing Duty to 19 CFR 351.212(c), for all companies Administration. Orders; Policy Bulletin, 63 FR 18871 for which a review was not requested, [FR Doc. 99–23776 Filed 9–10–99; 8:45 am] (April 16, 1998) (‘‘Sunset Policy duties must be assessed at the cash BILLING CODE 3510±DS±P Bulletin’’).
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Scope maintained for the final results. The and/or exporters to provide evidence The merchandise subject to this Associations further assert that the demonstrating that the export subsidy countervailing duty order is sugar, with Department properly applied the program at issue is in conformance with the exception of specialty sugars (e.g., relevant standards, and the record in the the provisions of Part V of the cones, hats, pearls, loaves), from the underlying sunset review cannot Agreement on Agriculture before the support any alternative conclusion. Department may properly determine European Community. Blends of sugar Department Position: We agree with that the program is exempt from Articles and dextrose, a corn-derived sweetener, the Associations. For the reasons 3, 5, or 6 of the Subsidies Agreement. containing at least 65 percent sugar are enunciated in our notice of preliminary While the provision of such evidence within the scope of this order. results (see Preliminary Results of Full would certainly aid the Department in According to the final results of the Sunset Review: Sugar From the its determination, failure of the Department’s most recent administrative European Community, 64 FR 20257 respondent government to provide such review, the merchandise subject to this (April 26, 1999)), we continue to find evidence does not preclude the order is currently classifiable under that revocation of the countervailing Department from finding that the item numbers 1701.11.00, 1701.12.00, duty order would likely lead to program is in conformance with the 1701.91.20, and 1701.99.00 of the continuation or recurrence of a provisions of Part V of the Agreement Harmonized Tariff Schedule of the countervailable subsidy. on Agriculture. United States (‘‘HTSUS’’) (see Sugar Comment 2: The Associations assert Further, we do not agree with the From the European Community; Final that the Department correctly concluded Associations that the evidence they Results of Countervailing Duty that the export restitution payments on presented regarding prior Administrative Review, 55 FR 35703 European sugar constitute a determinations is sufficient to find this (August 31, 1990). In their substantive countervailable subsidy. However, they program is a prohibited subsidy under response, the domestic interested argue that the Department incorrectly the WTO Agreements. The Associations parties asserted that the merchandise concluded that the subsidies are exempt referred to prior determinations by subject to the order is currently from Articles 3 and 6 of the Subsidies Treasury, Commerce, the Commission, classifiable under item numbers Agreement. and the Canadian International Trade 1701.11.0025, 1701.11.0045, and The Associations argue that the Tribunal, that export restitution 1702.90.300 of the HTSUS. Although respondent foreign government and/or payments under the CAP are the HTSUS subheadings are provided industry bears the burden of countervailable subsidies. We agree that for convenience and Customs purposes, demonstrating that the export subsidy each of these determinations supports a the written description remains program at issue is in conformance with finding that the program is a dispositive. the provisions of Part V of the countervailable export subsidy; Background Agreement on Agriculture before the however, they do not address the Department may properly determine question of whether the program is a On April 26, 1999, the Department that the program is exempt from Articles prohibited export subsidy under the issued the Preliminary Results of Full 3, 5, or 6 of the Subsidies Agreement. Subsidies Agreement. In addition, the Sunset Review: Sugar From the Further, the Associations assert that the Associations refer to the GATT Dispute European Community (64 FR 20257). In European Commission failed to place Panel Report on Complaint by Brazil our preliminary results, we found that evidence on the record or set forth Concerning EC Refunds on Exports of revocation of the order would be likely arguments supporting the proposition Sugar (adopted November 10, 1980) and to lead to continuation or recurrence of that the restitution payment system the GATT Dispute Panel Report on a countervailable subsidy. Further, we under the CAP conforms to Part V of the Complaint by Australia Concerning EC found the net countervailable subsidy Agreement on Agriculture. The Refunds on Exports of Sugar (adopted likely to prevail if the order were Associations assert that in their November 6, 1979). While both of these revoked is 10.80 cents per pound, the substantive response they had presented adopted Panel Reports held that the subsidy from the original investigation. significant evidence that the sugar CAP sugar regime constitutes a form of Finally, we found that, although restitution payments under the CAP subsidy subject to the provisions of qualifying as a countervailable export have repeatedly been found to violate Article XVI of the GATT, neither of subsidy, Article 3 of the Subsidies GATT/WTO principles. Additionally, these reports addresses the question of Agreement did not apply to the export they assert that they had presented whether the program is in conformance restitution payments program. further evidence showing that it is likely with the provisions of Part V of the On June 8, 1999, we received that the European Union (‘‘EU’’) will be WTO Agreement on Agriculture. comments on behalf of the United States unable to meet its GATT/WTO As to the Associations’ assertions that Beet Sugar Association and its commitments to reduce the levels of falling world sugar prices and the individual members and the United these export subsidies, in light of the pending application of ten new former States Cane Sugar Refiners’ Association increasing gap between the EU and Eastern bloc countries currently seeking and its individual members (collectively world price of sugar and the likely admission to the EU make it, at best, ‘‘the Associations’’), within the deadline accession of ten new member states to uncertain whether the EU will be able specified in 19 CFR 351.309(c)(1)(i). We the EU in the near term. to meet its commitments to reduce did not receive comments from In conclusion the Associations argue export subsidies, we find these respondent interested parties. that the EU’s sugar export restitution allegations insufficient to support a payments most certainly constitute a finding that the program is not in Comments prohibited countervailable subsidy, conformance with Part V of the WTO Comment 1: The Associations assert whether under Article 3 of the Subsidies Agreement on Agriculture. that the Department’s preliminary Agreement or under Article 13(c) of the Article 13(c) of the Agreement on determination that revocation of the Agreement on Agriculture. Agriculture states that export subsidies order would likely lead to continuation Department’s Position: We disagree conforming to the provisions of Part V or recurrence of a countervailable with the Associations’ assertion that the of the Agreement on Agriculture shall subsidy was appropriate and should be burden is on the respondent government be exempt from actions based on Article
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XVI of GATT 1994 or Articles 3, 5, and countervailable subsidy. The export refund for marketing years 1995/ 6 of the Subsidies Agreement. Part V of Department noted in its Sunset Policy 1996, 1996/1997, and 1997/1998. In its the Agreement on Agriculture, Bulletin that, consistent with the substantive response, the Committee specifically Articles 8 and 9, refers to Statement of Administrative Action calculated a subsidy rate based on the the export subsidy commitments as (‘‘the SAA’’) 1 at 890, and the House export refund rate from October 1998. specified in the Schedule of each Report 2 at 64, the Department normally Because, as the Committee argues, the Member. Nothing on the record suggests will select a rate from the investigation, world price of sugar has been declining that the restitution payments on sugar because that is the only rate that reflects since 1995, we determine that recent do not conform to the commitments as the behavior of exporters and foreign data would more closely approximate reflected in the EU’s Schedule. governments without the discipline of the level of subsidy if the order were Therefore, we continue to find that, an order in place (see section III.B.1 of revoked than would the subsidy levels although qualifying as a countervailable the Sunset Policy Bulletin). from the original investigation or export subsidy, Articles 3 and 6 of the Additionally, the Department noted that administrative reviews conducted in the Subsidies Agreement do not apply to the rate from the investigation may not early 1980’s. the export restitutions payment program be the most appropriate if it was derived We do not, however, agree with the on sugar under the CAP. from a subsidy program which was Associations’ suggestion that a rate Comment 3: The Associations argue found in a subsequent review to have based on an October 1998 that the Department should make an undergone a program-wide change (see announcement is the most appropriate. upward adjustment to the net id. at section III.B.3). Over the 1995–1998 time period, the countervailable subsidy rate to arrive at The Department defines ‘‘program- average export refund has varied from a rate that represents the countervailing wide change’’ as a change that (1) is not year to year and we do not have a basis duty rate likely to prevail if the order is limited to an individual firm or firms to select one year over the other as the revoked. The Associations assert that and (2) is effectuated by an official act, most probative rate. Because we must the evidence set forth in their such as the enactment of a statute, provide the Commission with the rate substantive response supports a net regulation, or decree, or contained in likely to prevail in the future based countervailable subsidy rate of 27.97 the schedule of an existing statute, upon past experience, we have cents/pound of sugar and that even the regulation, or decree.3 determined that an average of the data presented in the EC’s response As described in numerous Federal marketing year refunds since the supports a net subsidy rate of 18.61 Register notices regarding the implementation of the WTO Agreement cents/pound of sugar. The Associations underlying investigation and on Agriculture, as reported in the EC’s argue that, in the present case, because administrative reviews, export response, is an appropriate the investigation rate is based on data restitution payments made under the representation of the net countervailable that is more than 20 years old and both CAP are a means of guaranteeing sugar subsidy likely to prevail if the order domestic and foreign interested parties producers a stated export price for sugar were revoked. On this basis, we find have provided the Department with (see e.g., Sugar From the European that the net countervailable subsidy more recent data establishing a current Community; Preliminary Results of likely to prevail were the order revoked net subsidy rate of at least 18.61 cents/ Countervailing Duty Administrative is 23.69 cents per pound of sugar, the pound, there is sufficient cause for the Review, 55 FR 28799 (July 13, 1990)). rate established by the record as Department to make an exception to the Further, export restitution payments are reflecting recent trends in the level of general rule of selecting the subsidy rate only granted when the world price of from the original investigation. export refunds. sugar as established in international Comment 4: The Associations argue In conclusion, the Associations markets is lower than the ‘‘threshold request that the Department make an that the Department’s determination to price’’ established by the EC. Changes in upward adjustment to the conduct a full sunset review is plainly the world market price are not countervailing duty rate likely to exist inconsistent with its own regulations, effectuated by the EC. However, the in the event of revocation to reflect the and will have the effect of rendering the ‘‘threshold price,’’ the amount of current prevailing rate of 27.97 cents/ provision of 19 CFR 351.218(e)(3)(ii) restitution payments to be provided, are pound, or 18.61 cents/pound at a meaningless in all countervailing duty determined by the EC, effectuated by minimum. sunset determinations going forward. Department’s Position: In sunset regulation, and published in the Official Specifically, the Associations assert that reviews, the Department is assigned the Journal. As such, these changes none of the foreign respondent responsibility of providing to the constitute program-wide changes that producers filed any substantive International Trade Commission (‘‘the the Department may consider in responses to the notice of initiation and, Commission’’) the magnitude of the net determining the net countervailable therefore, the Department should have countervailable subsidy that is likely to subsidy likely to prevail if the order determined that it did not receive prevail if the order is revoked. For were revoked. adequate response since it did not have purposes of determining whether Therefore, in a change from our complete substantive responses from revocation of a countervailing duty preliminary results, we agree with the respondent interested parties order would be likely to lead to Associations that the Department accounting on average for more than 50 continuation or recurrence of a should determine the net percent of the total exports of the countervailable subsidy, section countervailable subsidy likely to prevail subject merchandise. Given that the 752(b)(1) of the Act directs the were the order revoked based on more legislative history contemplates that a Department to consider the net recent information. In its substantive response from the foreign government in countervailable subsidy determined in response, the EC identified the average addition to responses from the foreign the investigation and subsequent industry respondents is essential to the 1 reviews and whether any change in the H.R. Doc. No. 103–316, vol. 1 (1994). sunset determination, foreign 2 H.R. Rep. No. 103–826, pt. 1 (1994). program which gave rise to the net 3 See 19 CFR 351.526 (1999), which although not governments are not entitled to a full countervailable subsidy has occurred applicable to this sunset review, nonetheless review where all of the industry that is likely to affect that net provides guidance on the Department’s policy. participants that the government
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49467 presumably represents have failed to Although qualifying as a countervailable on its policies and procedures for respond. export subsidy, Articles 3 and 6 of the addressing environmental affairs. In conclusion, the Associations argue Subsidies Agreement do not apply to At this meeting, the AP will discuss that the Department should determine the export restitution payments program revision of the Council’s Habitat Policy that a full review in this case was under the EC’s CAP. to include essential fish habitat (EFH) unnecessary and unwarranted. This five-year (‘‘sunset’’) review and provisions, an update on EFH Department’s Position: We disagree. notice are in accordance with sections assessments in Council fishery The Department’s regulations do not 751(c), 752, and 777(i)(1) of the Act. management plan amendments, an require that the Department conduct an update on the status of the EFH lawsuit, expedited review. Rather, the Dated: August 27, 1999. Bernard T. Carreau, impact of two new gas pipelines regulations provide that the Department between Mobile, AL and central Florida, normally will conduct an expedited Acting Assistant Secretary for Import Administration. status of the new marine reserves off the review where it does not receive Florida panhandle, and an update on [FR Doc. 99–23040 Filed 9–10–99; 8:45 am] adequate response, where adequate Alabama’s expansion of their artificial response is described as responses from BILLING CODE 3510±DS±P reef zone. parties accounting for more than 50 Although other issues not on the percent of the volume of exports over DEPARTMENT OF COMMERCE agenda may come before the AP for the five years preceding initiation of the discussion, in accordance with the sunset review. The Department must National Oceanic and Atmospheric Magnuson-Stevens Fishery conduct an expedited sunset review of Administration Conservation and Management Act, a countervailing duty order only when those issues may not be the subject of the foreign government does not [I.D. 082699B] formal action during this meeting. The participate. AP’s actions will be restricted to those Unlike other countervailing duty Gulf of Mexico Fishery Management issues specifically identified in the investigations or reviews, where Council; Public Meeting agenda listed as available by this notice. company-specific information is required in order to measure the amount AGENCY: National Marine Fisheries Special Accommodations of countervailable subsidy, the subsidy Service (NMFS), National Oceanic and This meeting is physically accessible rate from the only program investigated Atmospheric Administration (NOAA), to people with disabilities. Requests for over the life of this order has Commerce. sign language interpretation or other consistently been determined without ACTION: Notice of public meeting. auxiliary aids should be directed to the need for, or use of, company-specific Anne Alford at the Council (see information. Because adequacy SUMMARY: The Gulf of Mexico Fishery ADDRESSES) by September 21, 1999. determinations are made for the purpose Management Council (Council) will of determining whether there is convene a public meeting of the Florida/ Dated: September 7, 1999. sufficient participation to warrant a full Alabama Habitat Protection Advisory Bruce C. Morehead, review, in a case such as this, where Panel (AP). Acting Director, Office of Sustainable company-specific information provides DATES: The meeting will begin at a.m. on Fisheries, National Marine Fisheries Service. no additional input into our Tuesday, September 28, 1999 and [FR Doc. 99–23798 Filed 9–10–99; 8:45 am] determinations, we believe that conclude by p.m. BILLING CODE 3510±22±F requiring producer/exporter ADDRESSES: The meeting will be held at participation is not warranted. the Hilton Tampa Aiport Westshore, DEPARMENT OF COMMERCE Therefore, in this sunset review, we 2225 Lois Avenue, Tampa, FL 33607; continue to believe that the response of telephone: 813–877–6688. the EC forms an adequate basis for National Oceanic and Atmospheric Council address: Gulf of Mexico Administration conducting a full review to determine Fishery Management Council, 3018 U.S. whether revocation of the Highway 301 North, Suite 1000, Tampa, [I.D. 090799B] countervailing duty order on sugar from FL 33619. the EC will likely lead to continuation South Atlantic Fishery Management or recurrence of a countervailable FOR FURTHER INFORMATION CONTACT: Jeff Council; Public Meetings subsidy and, if so, what the level of the Rester, Gulf States Marine Fisheries AGENCY: National Marine Fisheries net countervailable subsidy would be. Commission; telephone: 228–875–5912. SUPPLEMENTARY INFORMATION: The Service (NMFS), National Oceanic and Final Results of Review Florida/Alabama group is part of a three Atmospheric Administration (NOAA), As a result of this review, the unit Habitat Protection Advisory Panel Commerce. Department finds that revocation of the of the Gulf of Mexico Fishery ACTION: Notice of public meeting. countervailing duty order would be Management Council. The principal role likely to lead to continuation or of the advisory panels is to assist the SUMMARY: The South Atlantic Fishery recurrence of a countervailable subsidy Council in attempting to maintain Management Council (Council) will for the reasons set forth in the optimum conditions within the habitat hold a public meeting with the limited preliminary results of review. For the and ecosystems supporting the marine access permit holders in the golden crab reasons set forth in the preliminary resources of the Gulf of Mexico. fishery in the South Atlantic region. results of review, we continue to Advisory panels serve as a first alert DATES: The meeting will be held on determine the country-wide net system to call to the Council’s attention Monday, September 27, 1999, from 1:00 countervailable subsidy in terms of proposed projects being developed and p.m. until 6:00 p.m. cents per pound. However, for this final, other activities which may adversely ADDRESSES: The meeting will be held at we find the net countervailable subsidy impact the Gulf marine fisheries and the Best Western, 411 South Krome, likely to prevail if the order were their supporting ecosystems. The panels Florida City, FL 33034; telephone: 305- revoked is 23.69 cents per pound. may also provide advice to the Council 246-5100.
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Council address: South Atlantic could prove valuable for Alaska lead to the substitution of artificial bait Fishery Management Council, One fisheries. It is intended to further the for much of the natural bait that is Southpark Circle, Suite 306; Charleston, goals of the Magnuson-Stevens Fishery currently used. Potential environmental SC 29407-4699. Conservation and Management Act. benefits include: FOR FURTHER INFORMATION CONTACT: ADDRESSES: Copies of the EFP and the 1. Recycling waste that is currently Robert Mahood, Executive Director; Environmental Assessment (EA) being dumped into the ocean into a telephone: (843) 571-4366; fax: (843) prepared for the EFP are available from productive use; 769-4520; email: Lori Gravel, Sustainable Fisheries 2. Reducing fishing pressure on bait [email protected] Division, Alaska Region, NMFS, P.O. species that are also used for human consumption, such as squid and SUPPLEMENTARY INFORMATION: The Box 21668, Juneau, AK 99802. herring; FOR FURTHER INFORMATION CONTACT: purpose of this meeting is for Council 3. Enhancing fishermen’s ability to Nina Mollett, 907–586–7462. staff to meet with the limited access target species and size of fish desired, permit holders in the golden crab SUPPLEMENTARY INFORMATION: The thus lowering bycatch and discard rates. fishery to gather information in Fishery Management Plan for Norwegian studies have indicated that preparation for Amendment 1 to the Groundfish of the Gulf of Alaska bait type may be the most important Golden Crab Fishery Management Plan. authorizes the issuance of EFPs for gear factor affecting species and size Although other issues not contained fishing for groundfish in a manner that selectivity. in this agenda may come before this would otherwise be prohibited under Potential socioeconomic benefits group for discussion, in accordance existing regulations. The procedures for include: with the Magnuson-Stevens Fishery issuing EFPs are set out at 50 CFR 679.6 1. Creation of Alaskan jobs in Conservation and Management Act, and 600.745. producing the artificial bait, and money those issues may not the subject of NMFS received an EFP application brought into Alaska through sale of formal action during this meeting. from AFDF on April 19, 1999, to artificial bait, as opposed to natural bait Action will be restricted to those issues conduct field trials in the GOA to test currently bought out of state. specifically listed in this notice. artificial longline bait fabricated from 2. Cost savings from bait that is less Special Accommodations Alaska seafood offal. An announcement subject to loss, can continue to attract of receipt of the EFP application was fish for longer periods underwater, and This meeting is physically accessible published in the Federal Register on is more consistent in quality. Frozen to people with disabilities. Requests for June 8, 1999 (64 FR 30488). The North bait, bought sight unseen, is sometimes sign language interpretation or other Pacific Fishery Management Council rotten, and natural bait is often lost auxiliary aids should be directed to the (Council) approved the application at its when it is cut into wrong size pieces; Council office (see ADDRESSES) by June 9–14, 1999, meeting in Kodiak. 3. Cheaper bait—AFDF anticipates September 20, 1999. AFDF is receiving funding for this that its artificial bait will be less Dated: September 8, 1999. project from the Alaska Science expensive by 15 to 20 percent; Bruce C. Morehead, Technology Foundation and is 4. Higher catch rates if artificial bait Acting Director, Office of Sustainable conducting its research collaboratively proves to be indeed more successful in Fisheries, National Marine Fisheries Service. with MARCO Marine; the Center for attracting fish than natural bait; and [FR Doc. 99–23799 Filed 9–10–99; 8:45 am] Applied Regional Studies (based in 5. Improved safety in that uniform Cambridge, Massachusetts); and the sized bait will be less likely to cause BILLING CODE 3510±22±F Wildlife Conservation Society, which is problems in automatic bait machines. run by the Bronx Zoo in New York City. AFDF plans to make two to four sets DEPARTMENT OF COMMERCE AFDF plans to conduct the per day, depending on the weather. It experiment in the GOA, near Seward, will use four strings of longlines per set, National Oceanic and Atmospheric Kodiak, or Sitka, and will charter each consisting of four skates and 200 Administration longline vessels under 60 feet for the hooks. Natural bait (herring) and purpose. The experiment will consist of artificial bait will be fished on each [I.D. 082599B] two trials: One in late July, consisting of longline, alternating every ten hooks. Fisheries of the Exclusive Economic 8 days of fishing, and one in September, Hook timers will be used to determine Zone off Alaska; Groundfish of the consisting of 12 days of fishing. The whether fish are attacking the bait and Gulf of Alaska Management Area; objective of the experiment is to not being hooked and to compare catch Exempted Fishing Permit compare the effectiveness between over time and the success of hooking artificial and natural bait under rates among bait types. Temperature- AGENCY: National Marine Fisheries commercial fishing conditions. depth-time recorders will be used to Service (NMFS), National Oceanic and The first trial is intended to determine determine fishing time on the bottom. Atmospheric Administration (NOAA), whether the artificial bait is effective Underwater video observations will be Commerce. and to make any changes needed in the taken twice daily, for two hours at a ACTION: Issuance of an exempted fishing bait itself or in the procedures followed. time, to observe fish behavior with permit (EFP). The second trial is intended to obtain artificial and natural bait and to meaningful and, if possible, statistically interpret the data recorded by the hook SUMMARY: NMFS announces the significant results on the effectiveness of timers. issuance of exempted fishing permit the bait. The bait will be tested for its Data collected prior to each set and (EFP) 99–04 to the Alaska Fisheries attractiveness to Pacific cod, to other before recovering gear will include Development Foundation, Inc. (AFDF). species taken as incidental catch in the vessel location, time, date, set number, The EFP authorizes AFDF to conduct an Pacific cod fishery, and to Pacific set direction, beginning and ending set experiment in the Gulf of Alaska (GOA) halibut. time, bottom depth, wind speed, swell to test artificial bait fabricated from AFDF sees both environmental and height, chop height, presence of birds, Alaska pollock offal. This EFP is socioeconomic benefits accruing from and so forth. While hauling in the gear, necessary to obtain information that its experiment, which, if successful, will data collected will include the bait type,
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49469 hook number in the sequence, presence species or critical habitat in any manner the Chairman of CITA directed the U.S. of hook timer, bait status when nothing not considered in prior consultations on Customs Service to deny entry to is caught (bait intact, partially gone, the groundfish fisheries. Participating textiles and textile products allegedly lost, hook lost, snood entanglement), vessels must take seabird avoidance manufactured by certain listed species caught, and hook location. measures; in the unlikely event that a companies; Customs had informed CITA AFDF is required by the terms of the short-tailed albatross is taken, it would that these companies were found to permit to report within 24 hours the be counted against the four short-tailed have been illegally transshipping, beginning and ending times of each albatrosses allowed under the U.S. Fish closed, or unable to produce records to fishing trip taken under the EFP. It is and Wildlife Service’s Biological verify production. also required to provide a report to Opinion on the effects of the hook-and- NMFS by February 2000, including all line groundfish fisheries in the Gulf of Based on information received since catch data and its analysis and findings, Alaska and Bering Sea and Aleutian that time, CITA has determined that and to coordinate with the Council on Islands Area, March 19, 1999. Macau Ltd., Fabrica de Artigos de presenting the results of its experiment This notice is exempt from review Vestuario; and Tong Heng, Fabrica de at a Council meeting. under E.O. 12866. It also is exempt Vestuario, two of the listed companies, For the purposes of this experiment, under the Regulatory Flexibility Act should not be subject to that directive. AFDF will be allowed to catch 20,800 lb (RFA) because prior notice and Effective on September 13, 1999, (9.45 mt) of Pacific cod and 1,100 lb (0.5 opportunity for public comment are not Customs should not apply the directive mt) of rockfish. The participants are required. Therefore, the analytical to shipments of textiles and textile expected to catch relatively small requirements of the RFA are products allegedly manufactured by amounts of other species while fishing. inapplicable. these two companies. CITA expects that NMFS is not including these other Authority: 16 U.S.C. 1801 et seq. Customs will conduct on-site species as a limiting factor in the EFP. verifications of these companies’ textile The EFP states that, if AFDF Dated: September 7, 1997. and textile product production. approaches its limit on Pacific cod or Gary C. Matlock, rockfish, the Administrator, Alaska Director, Office of Sustainable Fisheries, D. Michael Hutchinson, Region, NMFS (Regional Administrator), National Marine Fisheries Service. Acting Chairman, Committee for the must be notified immediately and will [FR Doc. 99–23797 Filed 9–10–99; 8:45 am] Implementation of Textile Agreements. make a decision on whether to stop BILLING CODE 3510±22±F Committee for the Implementation of Textile fishing under the EFP or to modify the Agreements terms of the permit, pursuant to 50 CFR September 8, 1999. 679.6(f). COMMITTEE FOR THE Commissioner of Customs The applicant estimated a catch of up IMPLEMENTATION OF TEXTILE to 12,000 lb (5.44 mt) of Pacific halibut. Department of Treasury, Washington, DC AGREEMENTS 20229 However, the vessel is receiving no allowance of prohibited species bycatch Removing Companies From List of Dear Commissioner: In the letter to the and the halibut must be counted against Companies From Which Customs Shall Commissioner of Customs, dated July 27, 1999 (64 FR 41395), the Chairman of CITA the chartered vessel’s individual fishing Deny Entry to Textiles and Textile directed the U.S. Customs Service to deny quota (IFQ) for halibut. Products Groundfish mortality associated with entry to textiles and textile products this experiment will not be deducted September 8, 1999. allegedly manufactured by certain listed from total allowable catch (TAC) AGENCY: Committee for the Implementationcompanies; of Textile Customs Agreements had informed (CITA). CITA that specified for the 1999 groundfish AGENCY: Committee for the these companies were found to have been fisheries. This additional groundfish Implementation of Textile Agreements illegally transshipping, closed, or unable to mortality will not cause a conservation (CITA). produce records to verify production. Based on information received since that problem for groundfish species because time, CITA has determined that Macau Ltd., estimated total removals under the EFP ACTION: Issuing a directive to the Fabrica de Artigos de Vestuario; and Tong are very small compared with the Commissioner of Customs directing Heng, Fabrica de Vestuario, two of the listed overall TACs for these species and Customs not to apply the directive companies, should not be subject to that regarding denial of entry to shipments would not contribute in a meaningful directive. Effective on September 13, 1999, way to approaching overfishing levels from certain companies. Customs is directed to not apply the directive already considered in the EA for the EFFECTIVE DATE: September 13, 1999. to shipments of textiles and textile products 1999 groundfish specifications. allegedly manufactured by these two Failure of the permit holder to comply FOR FURTHER INFORMATION CONTACT: Martin Walsh, International Trade companies. CITA expects that Customs will with the terms and conditions of the conduct on-site verifications of these EFP may be grounds for revocation, Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, companies’ textile and textile product suspension, or modification of the EFP production. (202) 482–3400. under 15 CFR part 904 with respect to CITA has determined that these actions fall any or all persons and vessels within the foreign affairs exception of the conducting activities under the EFP. SUPPLEMENTARY INFORMATION: rulemaking provisions of 5 U.S.C. 553(a)(1). Failure to comply with applicable laws Authority: Section 204 of the Agricultural Sincerely, also may result in sanctions imposed Act of 1956, as amended (7 U.S.C. 1854); D. Michael Hutchinson, under those laws. Executive Order 12475 of May 9, 1984, as Acting Chairman, Committee for the amended. Classification Implementation of Textile Agreements The Regional Administrator has In a notice and letter to the [FR Doc. 99–23893 Filed 9–9–99; 2:28pm] determined that fishing activities Commissioner of Customs, dated July BILLING CODE 3510±DR±F conducted under this action will not 27, 1999, and published in the Federal affect endangered and threatened Register on July 30, 1999 (64 FR 41395),
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CONSUMER PRODUCT SAFETY • Actions necessary to achieve full would defeat the purpose of the COMMISSION ISM implementation at defense nuclear information collection, violate State or facilities by September 2000; Federal law, or substantially interfere Sunshine Act Meeting • Presentations by the Rocky Flats with any agency’s ability to perform its Environmental Technology Site and the AGENCY: U.S. Consumer Product Safety statutory obligations. The Leader, Savannah River Site regarding Commission, Washington, DC 20207. Information Management Group, Office completion of initial ISM program of the Chief Information Officer, TIME AND DATE: Wednesday, September implementation, and processes for publishes that notice containing 15, 1999, 10:00 a.m. (Previously ensuring continuous improvement; proposed information collection scheduled for Thursday, September 16, • The result of Authorization requests prior to submission of these 1999 at 2:00 p.m.). Agreement reviews by the Offices of requests to OMB. Each proposed LOCATION: Room 410, East West Towers, Defense Programs and Environmental information collection, grouped by 4330 East West Highway, Bethesda, Management; office, contains the following: (1) Type Maryland. • The status of ISM guidance of review requested, e.g. new, revision, STATUS: Closed to the Public. document preparation; extension, existing or reinstatement; (2) MATTER TO BE CONSIDERED: • Progress on development of Title; (3) Summary of the collection; (4) performance indicators; and Description of the need for, and Compliance Status Report • Action items arising from the recent proposed use of, the information; (5) The staff will brief the Commission on ISM Feedback and Improvement Respondents and frequency of the status of various compliance Workshop. collection; and (6) Reporting and/or matters. CONTACT PERSON FOR MORE INFORMATION: Recordkeeping burden. OMB invites For a recorded message containing the Richard A. Azzaro, General Counsel, public comment. The Department of latest agenda information, call (301) Defense Nuclear Facilities Safety Board, Education is especially interested in 504–0709. 625 Indiana Avenue, NW, Suite 700, public comment addressing the CONTACT PERSON FOR ADDITIONAL Washington, DC 20004, (800) 788–4016. following issues: (1) is this collection INFORMATION: Sadye E. Dunn, Office of This is a toll-free number. necessary to the proper functions of the the Secretary, 4330 East West Highway, SUPPLEMENTARY INFORMATION: The Department; (2) will this information be Bethesda, MD 20207 (301) 504–0800. Defense Nuclear Facilities Safety Board processed and used in a timely manner; Dated: September 9, 1999. reserves its right to further schedule and (3) is the estimate of burden accurate; Todd A. Stevenson, otherwise regulate the course of this (4) how might the Department enhance Deputy Secretary. meeting, to recess, reconvene, postpone the quality, utility, and clarity of the [FR Doc. 99–23937 Filed 9–9–99; 3:30 pm] or adjourn the meeting, and otherwise information to be collected; and (5) how BILLING CODE 6355±01±M exercise its authority under the Atomic might the Department minimize the Energy Act of 1954, as amended. burden of this collection on the Dated: September 8, 1999. respondents, including through the use of information technology. DEFENSE NUCLEAR FACILITIES John T. Conway, SAFETY BOARD Chairman. Dated: September 7, 1999. [FR Doc. 99–23960 Filed 9–9–99; 3:31 pm] William Burrow, Sunshine Act Meeting BILLING CODE 3670±01±P Leader, Information Management Group, Pursuant to the provision of the Office of the Chief Information Officer. ‘‘Government in the Sunshine Act’’ (5 Office of Special Education and U.S.C. § 552b), notice is hereby given of DEPARTMENT OF EDUCATION Rehabilitative Services the Defense Nuclear Facilities Safety Board’s (Board) meeting described Notice of Proposed Information Type of Review: New. below. Collection Requests Title: The Study of Personnel Needs in Special Education (SPeNSE). TIME AND DATE OF MEETING: 9:00 a.m., AGENCY: Department of Education. Frequency: One-time. September 29, 1999. Affected Public: State, local or Tribal PLACE: The Defense Nuclear Facilities SUMMARY: The Leader, Information Gov’t, SEAs or LEAs. Safety Board, Public Hearing Room, 625 Management Group, Office of the Chief Reporting and Recordkeeping Hour Indiana Avenue, NW, Suite 300, Information Officer, invites comments Burden: Washington, DC 20004. on the proposed information collection Responses: 8,083. STATUS: Open. requests as required by the Paperwork Burden Hours: 5,578. MATTERS TO BE CONSIDERED: The Defense Reduction Act of 1995. Abstract: The Study of Personnel Nuclear Facilities Safety Board will DATES: Interested persons are invited to Needs in Special Education (SPeNSE) convene the eleventh quarterly briefing submit comments on or before will describe the number and regarding the status of progress of the November 12, 1999. qualifications of personnel serving activities associated with the SUPPLEMENTARY INFORMATION: Section students with disabilities. SPeNSE will Department of Energy’s Implementation 3506 of the Paperwork Reduction Act of explore variation in workforce adequacy Plans for the Board’s Recommendations 1995 (44 U.S.C. Chapter 35) requires and identify working conditions, State 95–2, Integrated Safety Management that the Office of Management and and local policies, preservice education, (‘‘ISM’’) and 98–1, Integrated Safety Budget (OMB) provide interested and continuing professional Management (Response to Issues Federal agencies and the public an early development practices that explain that Identified by the Office of Internal opportunity to comment on information variation. Oversight). In addition to a briefing on collection requests. OMB may amend or Written comments and requests for the status of these items, specific topics waive the requirement for public copies of the proposed information will include, but not be limited to, the consultation to the extent that public collection request should be addressed following. participation in the approval process to Vivian Reese, Department of
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Education, 400 Maryland Avenue, SW, Title: Annual Protection and 505–989–1662; Fax: 505–989–1752; E- Room 5624, Regional Office Building 3, Advocacy of Individual Rights (PAIR) mail: [email protected]; or Internet Washington, DC 20202–4651, or should Program Performance Report. http:www.nmcab.org. be electronically mailed to the internet Frequency: Annually. SUPPLEMENTARY INFORMATION: address [email protected] or Affected Public: Not-for-profit should be faxed to 202–708–9346. institutions; State, local or Tribal Gov’t, Purpose of the Board: The purpose of For questions regarding burden and/ SEAs or LEAs. the Board is to make recommendations or the collection activity requirements, Reporting and Recordkeeping Hour to DOE and its regulators in the areas of contact Sheila Carey at 202–708–6287 or Burden: environmental restoration, waste electronically mail her at internet Responses: 57. management, and related activities. l Burden Hours: 342. address sheila [email protected]. Tentative Agenda Individuals who use a Abstract: Form RSA–509 will be used telecommunications device for the deaf to analyze and evaluate the Protection 1. Public Comment, 6:30 p.m.–7 p.m. (TDD) may call the Federal Information and Advocacy of Individual Rights (PAIR) Program administered by eligible 2. Committee Reports: Environmental Relay Service (FIRS) at 1–800–877– Restoration, Monitoring and 8339. systems in states. These systems provide services to eligible individuals with Surveillance, Waste Management, Office of Special Education and disabilities to protect their legal and Community Outreach, Budget. Rehabilitative Services human rights. 3. Election of Officers for FY 2000. Type of Review: New. Written comments and requests for 4. Other Board business will be Title: Special Education Elementary copies of the proposed information conducted as necessary. Longitudinal Study (SEELS). collection request should be addressed to Vivian Reese, Department of Public Participation: The meeting is Frequency: Biennially. Education, 400 Maryland Avenue, SW, open to the public. Written statements Affected Public: Individuals or Room 5624, Regional Office Building 3, may be filed with the Committee either households; Not-for-profit institutions. Washington, DC 20202–4651, or should before or after the meeting. Individuals Reporting and Recordkeeping Hour be electronically mailed to the internet who wish to make oral statements Burden: address [email protected] or pertaining to agenda items should Responses: 31,095. should be faxed to 202–708–9346. contact Ann DuBois at the address or Burden Hours: 17,049. For questions regarding burden and/ telephone number listed above. Abstract: SEELS will provide the first or the collection activity requirements, Requests must be received 5 days prior national picture of the experiences and contact Sheila Carey at 202–708–6287 or to the meeting and reasonable provision outcomes of students in special electronically mail her at internet will be made to include the presentation education ages 6 through 12 at the address [email protected]. in the agenda. The Deputy Designated outset of the study. The study will Individuals who use a Federal Officer is empowered to inform special education policy telecommunications device for the deaf conduct the meeting in a fashion that development and support Government (TDD) may call the Federal Information will facilitate the orderly conduct of Performance and Results Act (GPRA) Relay Service (FIRS) at 1–800–877– business. Each individual wishing to measurement and Individuals with 8339. make public comment will be provided Disabilities Education Act (IDEA) [FR Doc. 99–23676 Filed 9–10–99; 8:45 am] a maximum of 5 minutes to present reauthorization. Data will be collected BILLING CODE 4000±01±P their comments at the beginning of the three times over a five-year period from meeting. the parents, teachers and principals of Minutes: The minutes of this meeting sample students. DEPARTMENT OF ENERGY will be available for public review and Written comments and requests for copying at the Freedom of Information copies of the proposed information Environmental Management Site- Public Reading Room, 1E–190, Forrestal collection request should be addressed Specific Advisory Board, Los Alamos; Building, 1000 Independence Avenue, to Vivian Reese, Department of Meeting SW, Washington, DC 20585 between 9 Education, 400 Maryland Avenue, SW, a.m. and 4 p.m., Monday–Friday, except AGENCY: Department of Energy. Room 5624, Regional Office Building 3, Federal holidays. Minutes will also be Washington, DC 20202–4651, or should ACTION: Notice of open meeting. available at the Public Reading Room be electronically mailed to the internet SUMMARY: This notice announces a located at the Board’s office at 528 35th address [email protected] or Street, Los Alamos, NM 87544. Hours of should be faxed to 202–708–9346. meeting of the Environmental Management Site-Specific Advisory operation for the Public Reading Room For questions regarding burden and/ Board (EM SSAB), Los Alamos. The are 9 a.m. and 4 p.m. on Monday or the collection activity requirements, Federal Advisory Committee Act (Pub. through Friday. Minutes will also be contact Sheila Carey at 202–708–6287 or L. 92–463, 86 Stat. 770) requires that made available by writing or calling electronically mail her at internet public notice of these meetings be Ann DuBois at the Board’s office address [email protected]. announced in the Federal Register. address or telephone number listed Individuals who use a above. telecommunications device for the deaf DATE: Wednesday, September 29, 1999; Issued at Washington, DC on September 8, (TDD) may call the Federal Information 6:00 p.m.–9:00 p.m. 1999. Relay Service (FIRS) at 1–800–877– ADDRESS: Pojoaque High School, Music 8339. Room, Route 502, Pojoaque, NM. Rachel M. Samuel, FOR FURTHER INFORMATION CONTACT: Ann Deputy Advisory Committee Management Office of Special Education and DuBois, Northern New Mexico Citizens’ Officer. Rehabilitative Services Advisory Board, 1640 Old Pecos Trail, [FR Doc. 99–23704 Filed 9–10–99; 8:45 am] Type of Review: New. Suite H, Santa Fe, NM 87505. Phone: BILLING CODE 6405±01±P
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DEPARTMENT OF ENERGY Outreach Subcommittee Report DATE AND TIME: Tuesday, September 28, (approximately 10 minutes) 1999: 10 p.m.–2:30 p.m. Environmental Management Site Public Comments (approximately 10 ADDRESSES: Amarillo Senior Citizens’ Specific Advisory Board, Savannah minutes) Center, 1217 South Tyler Street, River Site; Meeting 4:00 p.m. Adjourn Amarillo, TX. If needed, time will be allotted after AGENCY: Department of Energy. FOR FURTHER INFORMATION CONTACT: Jerry public comments for items added to the ACTION: Notice of open meeting. S. Johnson, Assistant Area Manager, agenda, and administrative details. A Department of Energy, Amarillo Area final agenda will be available at the SUMMARY: Pursuant to the provisions of Office, PO Box 30030, Amarillo, TX the Federal Advisory Committee Act meeting, Monday, September 27, 1999. 79120, (806) 477–3125. Public Participation: The meeting is (Pub. L. 92–463, 86 Stat. 770) notice is open to the public. Written statements SUPPLEMENTARY INFORMATION: hereby given of the following Advisory may be filed with the Committee either Purpose of the Board: The purpose of Committee meeting: Environmental before or after the meeting. Individuals the Board is to advise the Department of Management Site Specific Advisory who wish to make oral statements Energy and its regulators in the areas of Board (EM SSAB), Savannah River Site pertaining to agenda items should environmental restoration, waste DATES: Monday, September 27, 1999: contact Gerri Flemming’s office at the management, and related activities. 6:30 p.m.–7 p.m. (Public Comment address or telephone number listed Tentative Agenda Session) 7 p.m.–9 p.m. (Individual above. Requests must be received 5 days 10:00 Welcome-Agenda Review- Subcommittee meetings); Tuesday, prior to the meeting and reasonable September 28, 1999: 8:30 a.m.–4 p.m. Approval of minutes provision will be made to include the 10:15 Co-Chair Comments ADDRESSES: All meetings will be held at: presentation in the agenda. The Deputy 10:30 Task Force/Subcommittee Savannah Rapids Pavillion, Evans-to- Designated Federal Official is Reports Lock Road, Martinez, GA 30809. empowered to conduct the meeting in a 11:15 Ex-Officio Reports FOR FURTHER INFORMATION CONTACT: fashion that will facilitate the orderly 11:30 Updates-Occurrence Reports- Gerri Flemming, Office of conduct of business. Each individual DOE Environmental Quality, Department of wishing to make public comment will 12:00 Lunch Energy Savannah River Operations be provided a maximum of 5 minutes to 1:00 Environmental Restoration/Off- Office, PO Box A, Aiken, SC 29802 (803) present their comments. Site Activities Update 725–5374. Minutes: The minutes of this meeting 2:00 Closing Remarks SUPPLEMENTARY INFORMATION: will be available for public review and 2:15 Public Comments Purpose of the Board: The purpose of copying at the Freedom of Information 2:30 Adjourn the Board is to make recommendations Public Reading Room, 1E–190, Forrestal Public Participation: The meeting is to DOE and its regulators in the areas of Building, 1000 Independence Avenue, open to the public. Written statements environmental restoration, waste SW, Washington, DC 20585 between 9 may be filed with the Committee either management and related activities. a.m. and 4 p.m., Monday–Friday except before or after the meeting. Individuals Federal holidays. Minutes will also be Tentative Agenda who wish to make oral statements available by writing to Gerri Flemming, pertaining to agenda items should Monday, September 27, 1999 Department of Energy Savannah River contact Jerry Johnson’s office at the Operations Office, PO Box A, Aiken, 6:30 p.m. Public Comment Session address or telephone number listed S.C. 29802, or by calling (803)–725– above. Requests must be received 5 days 7:00 p.m. Subcommittee meetings 5374. 9:00 p.m. Adjourn prior to the meeting and every Issued at Washington, DC on September 7, reasonable provision will be made to Tuesday, September 28, 1999 1999. accommodate the request in the agenda. 8:30 a.m. Approval of Minutes, Rachel M. Samuel, The Deputy Designated Federal Officer Agency Updates (approximately 15 Deputy Advisory Committee Management is empowered to conduct the meeting in minutes) Officer. a fashion that will facilitate the orderly Public Comment Session (5-minute [FR Doc. 99–23705 Filed 9–10–99; 8:45 am] conduct of business. Each individual rule, approximately 10 minutes) BILLING CODE 6450±01±P wishing to make public comment will Facilitator Update (approximately 15 be provided a maximum of 5 minutes to minutes) present their comments. SRS 1998 annual Report DEPARTMENT OF ENERGY Minutes: The minutes of this meeting (approximately 45 minutes) will be available for public review and 12:00 p.m. Lunch Break Environmental Management Site- copying at the Pantex Public Reading Environmental Restoration and Waste Specific Advisory Board, Pantex Plant; Rooms located at the Amarillo College Management Subcommittee Report Meeting Lynn Library and Learning Center, 2201 continued (approximately 30 AGENCY: Department of Energy. South Washington, Amarillo, TX, phone minutes) ACTION: Notice of open meeting. (806) 371–5400. Hours of operation are Nuclear Materials Management from 7:45 a.m. to 10 p.m. Monday Subcommittee Report SUMMARY: This notice announces a through Thursday; 7:45 a.m. to 5 p.m. (approximately 30 minutes) meeting of the Environmental on Friday; 8:30 a.m. to 12 noon on Risk Management and Future Use Management Site-Specific Advisory Saturday; and 2 p.m. to 6 p.m. on Subcommittee (approximately 45 Board (EM SSAB), Pantex Plant, Sunday, except for Federal holidays. minutes) Amarillo, Texas. The Federal Advisory Additionally, there is a Public Reading Administrative Subcommittee Report Committee Act (Pub. L. 92–463, 86 Stat. Room located at the Carson County (approximately 20 minutes) 770) requires that public notice of these Public Library, 401 Main Street, Budget Subcommittee Report meetings be announced in the Federal Panhandle, TX, phone (806) 537–3742. (approximately 10 minutes) Register. Hours of operation are from 9 a.m. to 7
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49473 p.m. on Monday; 9 a.m. to 5 p.m. (Pub. L. No. 104–13), the Federal Energy Title V, Section 508 of the Natural Gas Tuesday through Friday; and closed Regulatory Commission (Commission) is Policy Act (Pub. L. 95–621). The Saturday and Sunday as well as Federal soliciting public comment on the information collected under the Holidays. Minutes will also be available specific aspects of the information requirements of FERC–567 is used by by writing or calling Jerry S. Johnson at collection described below. the Commission to obtain accurate data the address or telephone number listed DATES: Consideration will be given to on pipeline facilities and the peak day above. comments submitted on or before capacity of these facilities. Specifically, Issued at Washington, DC on September 8, November 12, 1999. the FERC–567 data is used in 1999. ADDRESSES: Copies of the proposed determining the configuration and Rachel M. Samuel, collection of information can be location of installed pipeline facilities; Deputy Advisory Committee Management obtained from and written comments evaluating the need for proposed Officer. may be submitted to the Federal Energy facilities to serve market expansions; [FR Doc. 99–23706 Filed 9–10–99; 8:45 am] Regulatory Commission, Attn: Michael determining pipeline interconnections and receipt and delivery points; and BILLING CODE 6450±01±P Miller, Office of the Chief Information Officer, CI–1, 888 First Street N.E., developing and evaluating alternatives Washington, D.C. 20426. to proposed facilities as a means to mitigate environmental impact of new DEPARTMENT OF ENERGY FOR FURTHER INFORMATION CONTACT: pipeline construction. Michael Miller may be reached by Federal Energy Regulatory telephone at (202) 208–1415, by fax at FERC–567 also contains valuable Commission (202) 208–2425, and by e-mail at information that can be used to assist [Docket No. IC99±567±000, (FERC±567)] [email protected]. federal officials in maintaining adequate natural gas service in times of national SUPPLEMENTARY INFORMATION: emergency. The Commission Proposed Information Collection and Abstract: The information collected implements these filing requirements in Request for Comments under the requirements of FERC–567 the Code of Federal Regulations (CFR) ‘‘Gas Pipeline Certificates: Annual September 7, 1999. under 18 CFR Part 260.8 and 284.12. AGENCY: Federal Energy Regulatory Reports of System Flow Diagrams and Action: The Commission is requesting Commission. System Capacity’’ (OMB Control No. a three-year extension of the current ACTION: 1902–0005) is used by the Commission Notice of proposed information expiration date, with no changes to the collection and request for comments. to implement the statutory provisions of Section 4, 5, 6, 7, 9, 10(a) and 16 of the existing collection of data. SUMMARY: In compliance with the Natural Gas Act (NGA) (Pub. L. 75–688), Burden Statement: Public reporting requirements of Section 3506(c)(2)(a) of and Title III, Sections 301(a)(1), 303(a), burden for this collection is estimated as the Paperwork Reduction Act of 1995 304(d), Title IV, Sections 401 and 402, follows:
Number of responses per re- Average burden hours per re- Number of responses annually spondent sponse Total annual burden hours
(1) (2) (3) (1)×(2)×(3)
91 1.714* 81.58 12,724 *Derived by dividing the total number of responses expected annually (156) by the number of respondents (91) and rounding to three places.
The estimated reporting cost to The reporting burden includes the administrative costs and the cost for respondents is $672,225 (12,724 hours total time, effort, or financial resources information technology. Indirect or divided by 2,080 hours per full-time expended to generate, maintain, retain, overhead costs are costs incurred by an employee-year multiplied times disclose, or provide the information organization in support of its mission. $109,889 per year (the estimated average including: (1) Reviewing instructions; These costs apply to activities which salary per employee (including (2) developing, acquiring, installing, and benefit the whole organization rather overhead expenses)) = $672,225). utilizing technology and systems for the than any one particular function or purposes of collecting, validating, activity. There is a net increase of 977 hours verifying, processing, maintaining, Comments are invited on: (1) Whether in the total burden hours over the last disclosing and providing information; Office of Management and Budget the proposed collection of information (3) adjusting the existing ways to is necessary for the proper performance (OMB) clearance of the FERC–567 data comply with any previously applicable collection, from 11,747 hours to 12,724 of the functions of the Commission, instructions and requirements; (4) including whether the information will hours. This increase is an adjustment training personnel to respond to a have practical utility; (2) the accuracy of resulting from an increase in the collection of information; (5) searching the agency’s estimate of the burden of number of respondents from 89 to 91 data sources; (6) completing and the proposed collection of information, with a simultaneous increase in the reviewing the collection of information; including the validity of the number of responses per respondent and (7) transmitting, or otherwise methodology and assumptions used; (3) from 1.62 to 1.71 (rounded). The disclosing the information. ways to enhance the quality, utility and number of responses per respondent is The estimate of cost for respondents clarity of the information to be greater than one because some is based upon salaries for professional collected; and (4) ways to minimize the respondents are required to file both of and clerical support, as well as direct burden of the collection of information the FERC–567 filing requirements while and indirect overhead costs. Direct costs on those who are to respond, including others are required to submit only one include all costs directly attributable to the use of appropriate automated, of the two. providing this information, such as electronic, mechanical, or other
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49474 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices technological collection techniques or DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY other forms of information technology e.g. permitting electronic submission of Federal Energy Regulatory Federal Energy Regulatory responses. Commission Commission David P. Boergers, [Docket No. EL99±88±000] Secretary. [Docket No. P±11814±000] [FR Doc. 99–23752 Filed 9–10–99; 8:45 am] Delmarva Power & Light Company; BILLING CODE 6717±01±M The Coalition for the Fair and Equitable Notice of Filing Regulation of Docks on Lake of the September 7, 1999. Ozarks, Inc. v. Union Electric Take notice that on September 3, DEPARTMENT OF ENERGY Company, d/b/a AmerenUE; Notice of 1999, Delmarva Power & Light Company Complaint Federal Energy Regulatory (Delmarva) tendered for filing a Petition Commission September 7, 1999. for Declaratory Order and Request for Expedited Consideration. Delmarva’s [Docket No. EL99±87±000] Take notice that on September 3, petition concerns Section 305(a) of the 1999, pursuant to Rule 206 of the Federal Power Act. Clarksdale Public Utilities Commission Commission’s Rules of Practice and Any person desiring to be heard or to v. Entergy Services, Inc., as Agent for Procedure, 18 CFR 385.206, The protest such filing should file a motion Entergy Arkansas, Inc., Entergy Coalition for the Fair and Equitable to intervene or protest with the Federal Louisiana, Inc., Entergy Mississippi, Regulation of Docks on Lake of the Energy Regulatory Commission, 888 Inc., Entergy New Orleans, Inc., Ozarks, Inc., by and through its First Street, NE, Washington, DC 20426, Entergy Gulf States, Inc., Notice of attorney, Stephen P. Brick, 550 39th in accordance with Rules 211 and 214 Complaint Street, Des Moines, Iowa 50312, filed of the Commission’s Rules of Practice September 7, 1999. with the Federal Energy Regulatory and Procedure (18 CFR 385.211 and Take notice that on September 3, Commission a complaint regarding 385.214). All such motions and protests 1999, Clarksdale Public Utilities certain actions by Union Electric should be filed on or before September Commission of the City of Clarksdale, Company, d/b/a AmerenUE 15, 1999. Protests will be considered by the Commission to determine the Mississippi (Clarksdale) tendered for (AmerenUE), concerning the appropriate action to be taken, but will filing a complaint against Entergy implementation, the authority to Services Inc., as agent for Entergy not serve to make protestants parties to implement and the substance of the proceedings. Any person wishing to Arkansas, Inc., Entergy Louisiana, Inc., AmerenUE’s 1999 Permit Program. Entergy Mississippi, Inc., Entergy New become a party must file a motion to Any person desiring to be heard or to Orleans, Inc., and Entergy Gulf States, intervene. Copies of this filing are on protest this filing should file a motion Inc. (collectively, Entergy) in connection file with the Commission and are with Entergy’s May 6, 1999 update to its to intervene or protest with the Federal available for public inspection. This Open Access Transmission Tariff Energy Regulatory Commission, 888 filing may also be viewed on the (OATT) filed in Docket No. ER99–2854– First Street, N.E., Washington, D.C. Internet at http://www.ferc.fed.us/ 000. 20426, in accordance with Rules 211 online/rims.htm (call 202–208–2222 for Any person desiring to be heard or to and 214 of the Commission’s Rules of assistance). protest this filing should file a motion Practice and Procedure (18 CFR 385.211 David P. Boergers, to intervene or protest with the Federal and 385.214). All such motions or Secretary. Energy Regulatory Commission, 888 protests must be filed on or before [FR Doc. 99–23751 Filed 9–10–99; 8:45 am] First Street, NE, Washington, DC 20426, September 23, 1999. Protests will be BILLING CODE 6717±01±M in accordance with Rules 211 and 214 considered by the Commission in of the Commission’s Rules of Practice determining the appropriate action to be and Procedure (18 CFR 385.211 and taken, but will not serve to make DEPARTMENT OF ENERGY 385.214). All such motions or protests protestants parties to the proceeding. Federal Energy Regulatory must be filed on or before September 23, Any person wishing to become a party Commission 1999. Protests will be considered by the must file a motion to intervene. Copies Commission in determining the of this filing are on file with the [Docket No. CP99±609±000] appropriate action to be taken, but will Commission and are available for public not serve to make protestants parties to Texas Gas Transmission Corporation; inspection in the Public Reference Notice of Application the proceeding. Any person wishing to Room. This Filing may also be viewed become a party must file a motion to on the Internet at http:// September 7, 1999. intervene. Copies of this filing are on www.ferc.fed.us/online/rims.htm (call Take notice that on August 27, 1999, file with the Commission and are 202–208–2222) for assistance. Answers Texas Gas Transmission Corporation available for public inspection in the to the complaint shall also be due on or (Texas Gas), 3800 Frederica Street, Public Reference Room. This filing may Owensboro, Kentucky 42301, filed in also be viewed on the Internet at http:/ before September 23, 1999. David P. Boergers, Docket No. CP99–609–000 an /www.ferc.fed.us/online/rims.htm (call application pursuant to Section 7(b) of Secretary. 202–208–2222) for assistance. Answers the Natural Gas Act for permission and to the complaint shall also be due on or [FR Doc. 99–23759 Filed 9–10–99; 8:45 am] approval to abandon a natural gas before September 23, 1999. BILLING CODE 6717±01±M exchange service with Memphis Light, David P. Boergers, Gas & Water Division (Memphis) of the Secretary. City of Memphis, Tennessee, a local [FR Doc. 99–23750 Filed 9–10–99; 8:45 am] distribution company, all as more fully BILLING CODE 6717±01±M set forth in the application on file with
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49475 the Commission and open to public unnecessary for Texas Gas to appear or 157.205 of the Regulations under the inspection. This filing may be viewed be represented at the hearing. NGA (18 CFR 157.205) a protest to the on the web at http://www.ferc.fed.us/ David P. Boergers, request. If no protest is filed within the online/rims.htm (call 202–208–2222 for Secretary. allowed time, the proposed activity assistance). [FR Doc. 99–23748 Filed 9–10–99; 8:45 am] shall be deemed to be authorized Specifically, Texas Gas proposes to BILLING CODE 6717±01±M effective the day after the time allowed abandon the exchange service with for filing a protest. If a protest is filed Memphis that was provided under and not withdrawn within 30 days after Texas Gas’s Rate Schedule X–35. Texas DEPARTMENT OF ENERGY the time allowed for filing a protest, the Gas states that this exchange service is instant request shall be treated as an Federal Energy Regulatory no longer required and has been application for authorization pursuant Commission terminated by mutual agreement of the to Section 7 of the NGA. parties by letter dated August 9, 1999. [Docket No. CP99±612±000] David P. Boergers, Secretary. The name, address and telephone Transcontinental Gas Pipe Line number of the person to whom [FR Doc. 99–23749 Filed 9–10–99; 8:45 am] Corporation; Notice of Request Under BILLING CODE 6717±01±M correspondence and communications Blanket Authorization concerning this application should be September 7, 1999. addressed is: David N. Roberts, Manager DEPARTMENT OF ENERGY of Certificates and Tariffs, Texas Gas Take notice that on September 3, Transmission Corporation, P.O. Box 1999, Transcontinental Gas Pipe Line Federal Energy Regulatory 20008, Owensboro, KY 42304. Corporation (Transco), filed a request Commission with the Commission in Docket No. CP– Any person desiring to be heard or to 99–612–000, pursuant to Sections make any protest with reference to said 157.205 and 157.216(b) of the [Docket No. RP96±129±005 (Phase I application should on or before Remand)] Commission’s Regulations under the September 28, 1999, file with the Natural Gas Act (NGA) for authorization Federal Energy Regulatory Commission, Trunkline Gas Company; Notice of to abandon by sale an existing delivery Informal Settlement Conference 888 First Street, NE, Washington, DC meter station in Rockingham County, 20426, a motion to intervene or a protest North Carolina, referred to as the September 7, 1999. in accordance with the requirements of ‘‘Cardinal Meter Station’’, authorized in Take notice that an informal the Commission’s Rules of Practice and blanket certificate issued in Docket No. settlement conference will be convened Procedure (18 CFR 385.214 or 385.211) CP82–426–000, all as more fully set in these proceedings on September 14, and the Regulations under the Natural forth in the request on file with the 1999 at 10:00 a.m. at the offices of the Gas Act (18 CFR 157.10). All protests Commission and open to public Federal Energy Regulatory Commission, filed with the Commission will be inspection. This filing may be viewed 888 First Street, N.E., Washington, D.C. considered by it in determining the on the web at http://www.ferc.fed.us/ 20426, for the purpose of exploring the appropriate action to be taken but will online/rims.htm (call 202–208–2222 for possible settlement of the issues and not serve to make the protestants parties assistance). drafting possible settlement documents to the proceeding. Any person wishing Transco proposes to abandon the in this proceeding. to become a party to a proceeding or to Cardinal Meter Station (meter station) Any party, as defined by 18 CFR participate as a party in any hearing by sale to Cardinal Pipeline Company, 385.102(c), or any participant as defined therein must file a motion to intervene LLC (Cardinal Pipeline). Cardinal, a by 18 CFR 385.102(b), is invited to in accordance with the Commission’s Hinshaw pipeline whose rates and attend. Persons wishing to become a Rules. service are subject to regulation by the party must move to intervene and Take further notice that, pursuant to North Carolina Utilities Commission, receive intervenor status pursuant to the the authority contained in and subject to would own and operate the meter Commission’s regulations (18 CFR the jurisdiction conferred upon the station as part of its pipeline system and 385.214). Federal Energy Regulatory Commission would continue to use the meter station For additional information, contact by Sections 7 and 15 of the Natural Gas to measure gas delivered by Transco. Marc G. Denkinger (202) 208–2215 or Act and the Commission’s Rules of Transco reports that the meter station is Lorna J. Hadlock (202) 208–0737. used for deliveries of gas to Cardinal Practice and Procedure, a hearing will David P. Boergers, Pipeline for the account of Public be held without further notice before the Secretary. Commission or its designee on this Service Company of North Carolina, Inc. and Piedmont Natural Gas Company, [FR Doc. 99–23760 Filed 9–10–99; 8:45 am] application if no motion to intervene is Inc. Transco states that both Cardinal BILLING CODE 6717±01±M filed within the time required herein, if Pipeline and Piedmont have consented the Commission on its own review of to the proposed abandonment. Transco the matter finds that permission and states that the proposed abandonment DEPARTMENT OF ENERGY approval for the proposed abandonment would have no impact on Transco’s are required by the public convenience Federal Energy Regulatory peak day deliveries and little or no and necessity. If a motion for leave to Commission impact on Transco’s annual deliveries. intervene is timely filed, or if the Any person or the Commission’s staff Notice of Transfer of License and Commission on its own motion believes may, within 45 days after the that a formal hearing is required, further Soliciting Comments, Motions To Commission has issued this notice, file Intervene, and Protests notice for such hearing will be duly pursuant to Rule 214 of the given. Commission’s Procedural Rules (18 CFR September 7, 1999. Under the procedure herein provided 385.214) a motion to intervene or notice Take notice that the following for, unless otherwise advised, it will be of intervention and pursuant to Section application has been filed with the
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Commission and is available for public web at www.ferc.fed.us/online/ DEPARTMENT OF ENERGY inspection: rims.htm (Call (202) 208–2222 for a. Application Type: Transfer of assistance). A copy is also available for Federal Energy Regulatory License. inspection and reproduction at the Commission b. Project No: 2512–046. addresses in item g above. c. Date Filed: August 17, 1999. Notice of Application Accepted for d. Applicants: Elkem Metals Company 1. Individuals desiring to be included Filing and Soliciting Motions To L.P. and Elkem Metals Company— on the Commission’s mailing list should Intervene, Protests, and Comments Alloy, LP. so indicate by writing to the Secretary e. Name and Location of Project: The of the Commission. September 7, 1999. Take notice that the following Hawks Nest—Glen Ferris Project is on Comments, Protests, or Motions to the New and Kanawha Rivers in Fayette hydroelectric application has been filed Intervene—Anyone may submit with the Commission and is available County, West Virginia. The project does comments, a protest, or a motion to not occupy federal or tribal lands. for public inspection: intervene in accordance with the a. Type of Application: Preliminary f. Filed Pursuant to: Federal Power requirements of Rules of Practice and Act, 16 U.S.C. 791(a)–825(r). Permit. Procedure, 18 CFR 385.210, .211, .214. g. Applicant Contacts: Ms. Amy S. b. Project No.: 11805–000. Koch, Cameron McKenna LLP, 1275 K In determining the appropriate action to c. Date filed: August 23, 1999. Street, NW, 5th Floor, Washington, DC take, the Commission will consider all d. Applicant: Universal Electric 20037, (202) 466–0060 and Mr. Henry protests or other comments filed, but Power Corporation. Shaffer, Elkem Metals Company L.P., only those who file a motion to e. Name of Project: Pomme De Terre Airport Office Park, Bldg. 2, 400 Rouser intervene in accordance with the Dam Hydroelectric Project. Road, Moon Township, PA 15108–2749, Commission’s Rules may become a f. Location: On the Pomme De Terre (412) 229–7217. party to the proceeding. Any comments, River in Hickory County, Missouri. h. FERC Contact: Any questions on protests, or motions to intervene must g. Filed Pursuant to: Federal Power this notice should be addressed to James be received on or before the specified Act, 16 USC §§ 791(a)–825(r). Hunter at (202) 219–2839, or e-mail comment date for the particular h. Applicant Contact: Gregory S. address: [email protected]. application. Feltenberger, Universal Electric Power Corporation, 1145 Highbrook Street, i. Deadline for filing comments and or Filing and Service of Responsive motions: October 14, 1999. Akron, OH 44301, (330) 535–7115. Documents—Any filings must bear in All documents (original and eight i. FERC Contact: He´ctor M. Pe´rez, copies) should be filed with: David P. all capital letters the title [email protected], (202)–219– Boergers, Secretary, Federal Energy ‘‘COMMENTS’’, 2843, or Robert Bell, Regulatory Commission, 888 First ‘‘RECOMMENDATIONS FOR TERMS [email protected], (202) 219–2806. Street, NE, Washington, DC 20426. AND CONDITIONS’’, ‘‘PROTEST’’, OR j. Deadline for filing motions to Please include the project number (P– ‘‘MOTION TO INTERVENE’’, as intervene, protest and comments: 60 2512–046) on any comments or motions applicable, and the Project Number of days from the issuance date of this filed. the particular application to which the notice. j. Description of Proposal: Applicants filing refers. Any of the above-named All documents (original and eight propose a transfer of the license for documents must be filed by providing copies) should be filed with: David P. Project No. 2512 from Elkem Metals the original and the number of copies Boergers, Secretary, Federal Energy Company L.P. to Elkem Metals provided by the Commission’s Regulatory Commission, 888 First Company—Alloy, LP. Transfer is being regulations to: The Secretary, Federal Street, NE, Washington, DC 20426. sought as part of a larger corporate Energy Regulatory Commission, 888 The Commission’s Rules of Practice restructuring of the United States First Street, N.E., Washington, D.C. and Procedure require all interveners operations of the parent company, 20426. A copy of any motion to filing documents with the Commission Elkem Holding, Inc. intervene must also be served upon each to serve a copy of that document on The current licensee, Elkem Metals representative of the Applicant each person in the official service list Company, no longer exists. When the specified in the particular application. for the project. Further, if an intervener new license for the project was issued files comments or documents with the in 1987, the licensee was a general Agency Comments—Federal, state, Commission relating to the merits of an partnership. However, in January 1994, and local agenices are invited to file issue that may affect the responsibilities the partners converted the company to comments on the described application. of a particular resource agency, they a limited partnership known as Elkem A copy of the application may be must also serve a copy of the document Metals Company L.P. The applicants obtained by agencies directly from the on that resource agency. request after-the-fact Commission Applicant. If an agency does not file k. The project would utilize the Corps approval of the transfer of the project comments within the time specified for of Engineers’ Pomme De Terre Dam and license from Elkem Metals Company to filing comments, it will be presumed to consist of: (1) two 80-foot-long and 96- Elkem Metals Company L.P., as well as have no comments. One copy of an inch-diameter steel penstocks at the approval of the prospective transfer agency’s comments must be sent to the outlet works; (2) a powerhouse with two from Elkem Metals Company L.P. to Applicant’s representatives. turbine generator units with a total Elkem Metals Company—Alloy, LP. David P. Boergers, installed capacity of 4.6 megawatts; (3) k. Locations of the application: A a tailrace consisting of an exhaust Secretary. copy of the application is for inspection apron; (4) a 14.7-kV, 300-foot-long and reproduction at the Commission’s [FR Doc. 99–23753 Filed 9–10–99; 8:45 am] transmission line; and (5) other Public Reference Room, located at 888 BILLING CODE 6717±01±M appurtenances. First Street, NE, Room 2A, Washington, l. A copy of the application is DC 20426, or by calling (202) 208–1371. available for inspection and The application may be viewed on the reproduction at the Commission’s
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Public Reference Room, located at 888 Comments, Protests or Motions to DEPARTMENT OF ENERGY First Street, NE, Room 2A, Washington, Intervene—Anyone may submit D.C. 20426, or by calling (202) 208– comments, a protest, or a motion to Federal Energy Regulatory 1371. The application may be viewed on intervene in accordance with the Commission http://www.ferc.fed.us/rims.htm (call requirements of Rules of Practice and Notice of Application Accepted for (202)208–2222 for assistance). A copy is Procedure, 18 CFR 385.210, .211, .214. also available for inspection and Filing and Soliciting Motions To In determining the appropriate action to Intervene, Protests, and Comments reproduction at the address in item h take, the Commission will consider all above. protests or other comments filed, but September 7, 1999. Preliminary Permit—Anyone desiring only those who file a motion to Take notice that the following to file a competing application for intervene in accordance with the hydroelectric application has been filed preliminary permit for a proposed Commission’s Rules may become a with the Commission and is available project must submit the competing party to the proceeding. Any comments, for public inspection: application itself, or a notice of intent to protests, or motions to intervene must a. Type of Application: Preliminary file such an application, to the be received on or before the specified Permit. Commission on or before the specified b. Project No.: 11806–000. comment date for the particular comment date for the particular application. c. Date filed: August 23, 1999. application (see 18 CFR 4.36). d. Applicant: Universal Electric Submission of a timely notice of intent Filing and Service of Responsive Power Corporation. allows an interested person to file the Documents—Any filings must bear in e. Name of Project: Melvern Dam competing preliminary permit all capital letters the title Hydroelectric Project. application no later than 30 days after ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT f. Location: On the Marais Des the specified comment date for the TO FILE COMPETING APPLIATION’’, Cygness River in Osage County, Kansas. particular application. A competing ‘‘COMPETING APPLICATION’’, g. Filed Pursuant to: Federal Power preliminary permit application must ‘‘PROTEST’’, ‘‘MOTION TO Act, 16 U.S.C. §§ 791(a)–825(r). conform with 18 CFR 4.30(b) and 4.36. INTERVENE’’, as applicable, and the h. Applicant Contact: Gregory S. Preliminary Permit—Any qualified Project Number of the particular Feltenberger, Universal Electric Power development applicant desiring to file a application to which the filing refers. Corporation, 1145 Highbrook Street, competing development application Any of the above-named documents Akron, OH 44301, (330) 535–7115. must submit to the Commission, on or must be filed by providing the original i. FERC Contact: He´ctor M. Pe´rez, before a specified comment date for the and the number of copies provided by [email protected], (202)–219– particular application, either a the Commission’s regulations to: The 2843, or Robert Bell, robert.bell@ competing development application or a Secretary, Federal Energy Regulatory ferc.fed.us (202) 219–2806. notice of intent to file such an Commission, 888 First Street, N.E., j. Deadline for filing motions to application. Submission of a timely Washington, D.C. 20426. An additional intervene, protest and comments: 60 notice of intent to file a development copy must be sent to Director, Division days from the issuance date of this application allows an interested person of Project Review, Federal Energy notice. to file the competing application no All documents (original and eight Regulatory Commission, at the above- later than 120 days after the specified copies) should be filed with: David P. mentioned address. A copy of any comment date for the particular Boergers, Secretary, Federal Energy application. A competing license notice of intent, competing application Regulatory Commission, 888 First application must conform with 18 CFR or motion to intervene must also be Street, NE, Washington, DC 20426. 4.30(b) and 4.36. served upon each representative of the The Commission’s Rules of Practice Notice of intent—A notice of intent Applicant specified in the particular and Procedure require all interveners must specify the exact name, business application. filing documents with the Commission address, and telephone number of the Agency Comments—Federal, state, to serve a copy of that document on prospective applicant, and must include and local agencies are invited to file each person in the official service list an unequivocal statement of intent to comments on the described application. for the project. Further, if an intervener submit, if an application may be filed, A copy of the application may be files comments or documents with the either a preliminary permit application obtained by agencies directly from the Commission relating to the merits of an or a development application (specify Applicant. If an agency does not file issue that may affect the responsibilities which type of application). A notice of comments within the time specified for of a particular resource agency, they intent must be served on the filing comments, it will be presumed to must also serve a copy of the document applicant(s) named in this public notice. have no comments. One copy of an on that resource agency. Proposed Scope of Studies under agency’s comments must also be sent to k. The project would utilize the Corps Permit—A preliminary permit, if issued, of Engineers’ Melvern Dam and consist the Applicant’s representatives. does not authorize construction. The of: (1) one 80-foot-long and 114-inch- term of the proposed preliminary permit David P. Boergers, diameter steel penstock at the outlet would be 36 months. The work Secretary. works; (2) a powerhouse with a turbine proposed under the preliminary permit [FR Doc. 99–23754 Filed 9–10–99; 8:45 am] generator unit with an installed capacity would include economic analysis, BILLING CODE 6717±01±M of 2 megawatts; (3) a tailrace consisting preparation of preliminary engineering of an exhaust apron; (4) a 14.7-kV, plans, and a study of environmental 1,500-foot-long transmission line; and impacts. Based on the results of these (5) other appurtenances. studies, the Applicant would decide l. A copy of the application is whether to proceed with the preparation available for inspection and of a development application to reproduction at the Commission’s construct and operate the project. Public Reference Room, located at 888
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First Street, NE, Room 2A, Washington, Comments, Protests, or Motions to DEPARTMENT OF ENERGY D.C. 20426, or by calling (202) 208– Intervene—Anyone may submit 1371. The application may be viewed on comments, a protest, or a motion to Federal Energy Regulatory http://www.ferc.fed.us/rims.htm (call intervene in accordance with the Commission (202) 208–2222 for assistance). A copy requirements of Rules of Practice and Notice of Application Accepted for is also available for inspection and Procedure, 18 CFR 385.210, .211, .214. reproduction at the address in item h Filing and Soliciting Motions To In determining the appropriate action to Intervene, Protests, and Comments above. take, the Commission will consider all Preliminary Permit—Anyone desiring protests or other comments filed, but September 7, 1999. to file a competing application for only those who file a motion to Take notice that the following preliminary permit for a proposed intervene in accordance with the hydroelectric application has been filed project must submit the competing Commission’s Rules may become a with the Commission and is available application itself, or a notice of intent to party to the proceeding. Any comments, for public inspection: file such an application, to the protests, or motions to intervene must a. Type of Application: Preliminary Commission on or before the specified be received on or before the specified Permit. comment date for the particular b. Project No.: 11807–000. application (see 18 CFR 4.36). comment date for the particular application. c. Dated filed: August 23, 1999. Submission of a timely notice of intent d. Applicant: Universal Electric allows an interested person to file the Filing and Service of Responsive Power Corporation. competing preliminary permit Documents—Any filings must bear in e. Name of Project: Wilson Dam application no later than 30 days after all capital letters the title Hydroelectric Project. the specified comment date for the ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT f. Location: On the Saline River in particular application. A competing TO FILE COMPETING APPLICATION’’, Russell County, Kansas. preliminary permit application must ‘‘COMPETING APPLICATION’’, g. Filed Pursuant to: Federal Power conform with 18 CFR 4.30(b) and 4.36. ‘‘PROTEST’’, ‘‘MOTION TO Act, 16 U.S.C. §§ 791(a)–825(r). Preliminary Permit—Any qualified INTERVENE’’, as applicable, and the h. Applicant Contact: Gregory S. development applicant desiring to file a Project Number of the particular Feltenberger, Universal Electric Power competing development application application to which the filing refers. Corporation, 1145 Highbrook Street, must submit to the Commission, on or Any of the above-named documents Akron, OH 44301, (330) 535–7115. before a specified comment date of the must be filed by providing the original i. FERC Contact: He´ctor M. Pe´rez, particular application, either a and the number of copies provided by [email protected], (202)–219– competing development application or a the Commission’s regulations to: The 2843, or Robert Bell, notice of intent to file such an Secretary, Federal Energy Regulatory [email protected]. (202) 219–2806. application. Submission of a timely Commission, 888 First Street, N.E., j. Deadline for filing motions to notice of intent to file a development Washington, D.C. 20426. An additional intervene, protest and comments: 60 application allows an interested person copy must be sent to Director, Division days from the issuance date of this to file the competing application no of Project Review, Federal Energy notice. later than 120 days after the specified All documents (original and eight Regulatory Commission, at the above- comment date for the particular copies) should be filed with: David P. mentioned address. A copy of any application. A competing license Boergers, Secretary, Federal Energy application must conform with 18 CFR notice of intent, competing application Regulatory Commission, 888 First 4.30(b) and 4.36. or motion to intervene must also be Street, NE, Washington, DC 20426. Notice of intent—A notice of intent served upon each representative of the The Commission’s Rules of Practice must specify the exact name, business Applicant specified in the particular and Procedure require all interveners address, and telephone number of the application. filing documents with the Commission prospective applicant, and must include Agency Comments—Federal, state, to serve a copy of that document on an unequivocal statement of intent to and local agencies are invited to file each person in the official service list submit, if such an application may be comments on the described application. for the project. Further, if an intervener filed, either a preliminary permit A copy of the application may be files comments or documents with the application or a development obtained by agencies directly from the Commission relating to the merits of an application (specify which type of Applicant. If an agency does not file issue that may affect the responsibilities application). A notice of intent must be comments within the time specified for of a particular resource agency, they served on the applicant(s) named in this filing comments, it will be presumed to must also serve a copy of the document public notice. have no comments. One copy of an on that resource agency. Proposed Scope of Studies under agency’s comments must also be sent to k. The project would utilize the Corps Permit—A preliminary permit, if issued, of Engineer’s Wilson Dam and consist the Applicant’s representatives. does not authorize construction. The of: (1) one 80-foot-long and 108-inch- term of the proposed preliminary permit David P. Boergers, diameter steel penstock at the outlet would be 36 months. The work Secretary. works; (2) a powerhouse with two proposed under the preliminary permit [FR Doc. 99–23755 Filed 9–10–99; 8:45 am] turbine generator units with a total would include economic analysis, BILLING CODE 6717±01±M installed capacity of 2 megawatts; (3) a preparation of preliminary engineering tailrace consisting of an exhaust apron; plans, and a study of environmental (4) a 14.7-kV, 1,200-foot-long impacts. Based on the results of these transmission line; and (5) other studies, the Applicant would decide appurtenances. whether to proceed with the preparation l. A copy of the application is of a development application to available for inspection and construct and operate the project. reproduction at the Commission’s
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Public Reference Room, located at 888 Comments, Protests, or Motions to DEPARTMENT OF ENERGY First Street, NE, Room 2A, Washington, Intervene—Anyone may submit DC 20426, or by calling (202) 208–1371. comments, a protest, or a motion to Federal Energy Regulatory The application may be viewed on intervene in accordance with the Commission http://www.ferc.fed.us/rims.htm (call requirements of Rules of Practice and Notice of Application Accepted for (202) 208–2222 for assistance). A copy Procedure, 18 CFR 385.210, 211,.214. In is also available for inspection and Filing and Soliciting Motions To determining the appropriate action to Intervene, Protests, and Comments reproduction at the address in item h take, the Commission will consider all above. protests or other comments filed, but September 7, 1999. Preliminary Permit—Anyone desiring only those who file a motion to Take notice that the following to file a competing application for intervene in accordance with the hydroelectric application has been filed preliminary permit for a proposed Commission’s Rules may become a with the Commission and is available project must submit the competing party to the proceeding. Any comments, for public inspection: application itself, or a notice of intent to protest, or motions to intervene must be a. Type of Application: Preliminary file such an application, to the received on or before the specified Permit. Commission on or before the specified b. Project No.: 11808–000. comment date for the particular comment date for the particular application. c. Date filed: August 23, 1999. application (see 18 CFR 4.36). d. Applicant: Universal Electric Submission of a timely notice of intent Filing and Service of Responsive Power Corporation. allows an interested person to file the Documents—Any filings must bear in e. Name of Project: Kanapolis Dam competing preliminary permit all capital letters the title Hydroelectric Project. application no later than 30 days after ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT f. Location: On the Smoky Hill River the specified comment date for the TO FILE COMPETING APPLICATION’’, in Ellsworth County, Kansas. particular application. A competing ‘‘COMPETING APPLICATION’’, g. Filed Pursuant to: Federal Power preliminary permit application must ‘‘PROTEST’’, ‘‘MOTION TO Act, 16 U.S.C. §§ 791(a)–825(r). conform with 18 CFR 4.30(b) and 4.36. INTERVENE’’, as applicable, and the h. Applicant Contact: Gregory S. Preliminary Permit—Any qualified Project Number of the particular Feltenberger, Universal Electric Power development applicant desiring to file a application to which the filing refers. Corporation, 1145 Highbrook Street, competing development application Any of the above-named documents Akron, OH 44301, (330) 535–7115. must submit to the Commission, on or must be filed by providing the original i. FERC Contact: He´ctor M. Pe´rez, before a specified comment date for the and the number of copies provided by [email protected], (202)–219– particular application, either a the Commission’s regulations to: The 2843, or Robert Bell, robert.bell@ competing development application or a Secretary, Federal Energy Regulatory ferc.fed.us. (202) 219–2806. notice of intent to file such application. Commission, 888 First Street, N.E., j. Deadline for filing motions to Submission of a timely notice of intent Washington, D.C. 20426. An additional intervene, protests, and comments: 60 to file a development application allows copy must be sent to Director, Division days from the issuance date of this an interested person to file the of Project Review, Federal Energy notice. competing application no later than 120 All documents (original and eight Regulatory Commission, at the above- days after the specified comment date copies) should be filed with: David P. mentioned address. A copy of any for the particular application. A Boergers, Secretary, Federal Energy competing license application must notice of intent, competing application Regulatory Commission, 888 First conform with 18 CFR 4.30(b) and 4.36. or motion to intervene must also be Street, NE, Washington, DC 20426. Notice of intent—A notice of intent served upon each representative of the The Commission’s Rules of Practice must specify the exact name, business Applicant specified in the particular and Procedure require all interveners address, and telephone number of the application. filing documents with the Commission prospective applicant, and must include Agency Comments—Federal, state, to serve a copy of that document on an unequivocal statement of intent to and local agencies are invited to file each person in the official service list submit, if such an application may be comments on the described application. for the project. Further, if an intervener filed, either a preliminary permit A copy of the application may be files comments or documents with the application or a development obtained by agencies directly from the Commission relating to the merits of an application (specify which type of Applicant. If an agency does not file issue that may affect the responsibilities application). A notice of intent must be comments within the time specified for of a particular resource agency, they served on the applicant(s) named in this filing comments, it will be presumed to must also serve a copy of the document public notice. have no comments. One copy of an on that resource agency. Proposed Scope of Studies under agency’s comments must also be sent to k. The project would utilize the Corps Permit—A preliminary permit, if issued, of Engineers’ Kanopolis Dam and the Applicant’s representatives. does not authorize construction. The consist of: (1) two 80-foot-long and 96- term of the proposed preliminary permit David P. Boergers, inch-diameter steel penstock at the would be 36 months. The work Secretary. outlet work; (2) a powerhouse with two proposed under the preliminary permit [FR Doc. 99–23756 Filed 9–10–99; 8:45 am] turbine generator units with a total would include economic analysis, BILLING CODE 6717±01±M installed capacity of 1.3 megawatts; (3) preparation of preliminary engineering a tailrace consisting of an exhaust plans, and a study of environmental apron; (4) a 14.7-kV, 2-mile-long impacts. Based on the result of these transmission line; and (5) other studies, the Applicant would decide appurtenances. whether to proceed with the preparation l. A copy of the application is of a development application to available for inspection and construct and operate the project. reproduction at the Commission’s
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Public Reference Room, located at 888 Comments, Protests, or Motions to DEPARTMENT OF ENERGY First Street, NE, Room 2A, Washington, Intervene—Anyone may submit DC 20426, or by calling (202) 208–1371. comments, a protest, or a motion to Federal Energy Regulatory The application may be viewed on intervene in accordance with the Commission http://www.ferc.fed.us/rims.htm (call requirements of Rules of Practice and Notice of application Accepted for (202) 208–2222 for assistance). A copy Procedure, 18 CFR 385.210, .211, .214. is also available for inspection and Filing and Soliciting Motion To In determining the appropriate action to Intervene, Protests, and Comments reproduction at the address in item h take, the Commission will consider all above. protests or other comments filed, but September 7, 1999. Preliminary Permit—Anyone desiring only those who file a motion to to file a competing application for Take notice that the following preliminary permit for a proposed intervene in accordance with the hydroelectric application has been filed project must submit the competing Commission’s rules may become a party with the Commission and is available application itself, or a notice of intent to to the proceeding. Any comments, for public inspection: file such an application, to the protests, or motions to intervene must a. Type of Application: Preliminary Commission on or before the specified be received on or before the specified Permit. comment date for the particular comment date for the particular b. Project No.: 11809–000. application (see 18 CFR 4.36). application. c. Date filed: August 23, 1999. d. Applicant: Universal Electric Submission of a timely notice of intent Filing and Service of Responsive allows an interested person to file the Power Corporation. Documents—Any filings must bear in e. Name of Project: Deadwood Dam competing preliminary permit all capital letters the title application no later than 30 days after Hydroelectric Project. ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT f. Location: On the Deadwood River in the specified comment date for the TO FILE COMPETING APPLICATION’’, particular application. A competing Valley County, Idaho. ‘‘COMPETING APPLICATION’’, preliminary permit application must g. Filed Pursuant to: Federal Power ‘‘PROTEST’’, ‘‘MOTION TO conform with 18 CFR 4.30(b) and 4.36. Act, 16 U.S.C. §§ 791(a)–825(r). Preliminary Permit—Any qualified INTERVENE’’, as applicable, and the h. Applicant Contact: Gregory S. development applicant desiring to file a Project Number of the particular Feltenberger, Universal Electric Power competing development application application to which the filing refers. Corporation, 1145 Highbrook Street, must submit to the Commission, on or Any of the above-named documents Akron, OH 44301, (330) 535–7115. before a specified comment date for the must be filed by providing the original i. FERC Contact: He´ctor M. Pe´rez, particular application, either a and the number of copies provided by [email protected], (202)–219– competing development application or a the Commission’s regulations to: The 2843, or Robert Bell, notice of intent to file such an Secretary, Federal Energy Regulatory [email protected], (202) 219–2806. application. Submission of a timely Commission , 888 First Street, N.E., j. Deadline for filing motions to notice of intent to file a development Washington, D.C. 20426. An additional intervene, protest and comments: 60 application allows an interested person copy must be sent to Director, Division days from the issuance date of this to file the competing application no of Project Review, Federal Energy notice. All documents (original and eight later than 120 days after the specified Regulatory Commission, at the above- copies) should be filed with: David P. comment date for the particular mentioned address. A copy of any Boergers, Secretary, Federal Energy application. A competing license notice of intent, competing application application must conform with 18 CFR Regulatory Commission, 888 First or motion to intervene must also be Street, NE, Washington, DC 20426. 4.30(b) and 4.36. served upon each representative of the Notice of intent—A notice of intent The Commission’s Rules of Practice must specify the exact name, business Applicant specified in the particular and Procedure require all interveners address, and telephone number of the application. filing documents with the Commission prospective applicant, and must include Agency Comments—Federal, state, to serve a copy of that document on an unequivocal statement of intent to and local agencies are invited to file each person in the official service list submit, if such an application may be comments on the described application. for the project. Further, if an intervener filed, either a preliminary permit A copy of the application may be files comments or documents with the application or a development obtained by agencies directly from the Commission relating to the merits of an application (specify which type of Applicant. If an agency does not file issue that may affect the responsibilities application). A notice of intent must be comments within the time specified for of a particular resource agency, they served on the applicant(s) named in this filing comments, it will be presumed to must also serve a copy of the document public notice. have no comments. One copy of an on that resource agency. Proposed Scope of Studies under agency’s comments must also be sent to k. The project would utilize the Corps Permit—A preliminary permit, if issued, of Engineers’ Deadwood Dam and the Applicant’s representatives. does not authorize construction. The consist of: (1) one 50-foot-long and 96- term of the proposed preliminary permit David P. Boergers, inch-diameter steel penstocks at the would be 36 months. The work Secretary. outlet works; (2) a powerhouse with a proposed under the preliminary permit [FR Doc. 99–23757 Filed 9–10–99; 8:45 am] turbine generator unit with an installed would include economic analysis, BILLING CODE 6717±01±M capacity of 1.76 megawatts; (3) a tailrace preparation of preliminary engineering consisting of an exhaust apron; (4) a plans, and a study of environmental 14.7-kV, 25-mile-long transmission line; impacts. Based on the results of these and (5) other appurtenances. studies, the Applicant would decide l. A copy of the application is whether to proceed with the preparation available for inspection and of a development application to reproduction at the Commission’s construct and operate the project. Public Reference Room, located at 888
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First Street, NE, Room 2A, Washington, Comments, Protests, or Motions to DEPARTMENT OF ENERGY D.C. 20426, or by calling (202) 208– Intervene—Anyone may submit 1371. The application may be viewed on comments, a protest, or a motion to Federal Energy Regulatory http://www.ferc.fed.us/rims.htm (call intervene in accordance with the Commission (202) 208–2222 for assistance). A copy requirements of Rules of Practice and Sunshine Act Meeting is also available for inspection and Procedure, 18 CFR 385.210, .211, .214. reproduction at the address in item h In determining the appropriate action to September 8, 1999. above. take, the Commission will consider all The following notice of meeting is Preliminary Permit—Anyone desiring protests or other comments filed, but published pursuant to Section 3(a) of to file a competing application for only those who file a motion to the Government in the Sunshine Act preliminary permit for a proposed intervene in accordance with the (Pub. L. No. 94–409), 5 U.S.C. 552B: project must submit the competing Commission’s Rules may become a AGENCY HOLDING MEETING: Federal application itself, or a notice of intent to party to the proceeding. Any comments, Energy Regulatory Commission. file such an application, to the protests, or motions to intervene must Commission on or before the specified DATE AND TIME: September 15, 1999, be received on or before the specified comment date for the particular 10:00 a.m. application (see 18 CFR 4.36). comment date for the particular PLACE: Room 2C, 888 First Street, N.E., Submission of a timely notice of intent application. Washington, D.C. 20426. allows an interested person to file the Filing and Service of Responsive STATUS: Open. competing preliminary permit Documents—Any filings must bear in MATTERS TO BE CONSIDERED: Agenda. application no later than 30 days after all capital letters the title * Note: Items listed on the Agenda may be the specified comment date for the ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT deleted without further notice. particular application. A competing TO FILE COMPETING APPLICATION’’, CONTACT PERSON FOR MORE INFORMATION: preliminary permit application must ‘‘COMPETING APPLICATION’’, David P. Boergers Secretary, Telephone conform with 18 CFR 4.30(b) and 4.36. ‘‘PROTEST’’, ‘‘MOTION TO (202) 208–0400, for a recording listing Preliminary Permit—Any qualified INTERVENE’’, as applicable, and the items stricken from or added to the development applicant desiring to file a Project Number of the particular meeting, call (202) 208–1627. competing development application application to which the filing refers. This is a list of matters to be must submit to the Commission on or Any of the above-named documents considered by the Commission. It does before a specified comment date for the must be filed by providing the original not include a listing of all papers particular application either a and the number of copies provided by relevant to the items on the agenda; competing development application or a the Commission’s regulation to: The however, all public documents may be notice of intent to file such an Secretary, Federal Energy Regulatory examined in the Reference and application. Submission of a timely commission, 888 First Street, NW, Information Center. notice of intent to file a development Washington, DC 20426. An additional application allows an interested person Consent Agenda—Hydro 725th copy must be send to Director, Division to file the competing application no Meeting—September 15, 1999, Regular later than 120 days after the specified of Project Review, Federal Energy Meeting (10:00 a.m.) comment date for the particular Regulatory Commission, at the above- mentioned address. A copy of any CAH–1. application. A competing license Docket No. P–7115,030, Homestead application must conform with 18 CFR notice of intent, competing application or motion to intervene must also be Energy Resources, LLC 4.30(b) and 4.36. CAH–2. served upon each representative of the Notice of intent—A notice of intent Docket No. P–9423,027, Summit Applicant specified in the particular must specify the exact name, business Energy Storage, Inc. address, and telephone number of the application. CAH–3. prospective applicant, and must include Agency Comments—Federal, state, Docket No. UL98–1,002, Great an unequivocal statement of intent to and local agencies are invited to file Northern Paper, Inc. submit, if such an application may be comments on the described application. Other Nnos. P–2634,009, Great filed, either a preliminary permit A copy of the application may be Northern Paper, Inc. application or a development obtained by agencies directly from the CAH–4. application (specify which type of applicant. If an agency does not file Docket No. P–2523,017, N.E.W. application). A notice of intent must be comments within the time specified for Hydro, Inc. served on the applicant(s) named in this filing comments, it will be presumed to CAH–5. public notice. have no comments. One copy of an Docket No. P–4270,004, Mountain Proposed Scope of Studies under agency’s comments must also be send to Rhythm Resources Permit—A preliminary permit, if issued, the Applicant’s representatives. does not authorize construction. The Consent Agenda—Electric term of the proposed preliminary permit David P. Boergers, CAE–1. would be 36 months. the work proposed Secretary. Docket No. ER99–3408,000, Avista under the preliminary permit would [FR Doc. 99–23758 Filed 9–10–99; 8:45 am] Corporation include economic analysis, preparation BILLING CODE 6717±01±M CAE–2. of preliminary engineering plans, and a Docket No. ER99–3713,000, Pacific study of environmental impacts. Based Gas and Electric Company on the result of these studies, the Other Nos. EL99–50,000, Fresno Applicant would decide whether to Irrigation District proceed with the preparation of a CAE–3. development application to construct Docket No. ER99–3821,000, Southern and operate the project. Company Services, Inc., Alabama
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Power Company, Georgia Power CAE–16. CAE–30. Company and Mississippi Power Docket No. ER98–2369,000, Southern Docket No. ER99–1132,003, Duquesne Company, et al. California Edison Company Light Company Other Nos. ER91–150,013, Southern CAE–17. CAE–31. Company Services, Inc.; ER91– Docket No. ER98–3759,000, Portland Docket No. EG99–199,000, Duke 326,005, Southern Company General Electric Company Energy St. Francis, LLC Services, Inc.; ER99–4055,000, CAE–18. CAE–32. Southern Company Services, Inc. Docket No. ER99–933,000, California Docket No. EL99–79,000, PP&L CAE–4. Power Exchange Corporation Montana, LLC Docket No. ER99–3637,000, Oswego CAE–19. CAE–33. Harbor Power, L.L.C. Docket No. EC99–83,000, Duquesne Docket No. EL99–81,000, Tennessee Other Nos. ER99–3643,000, Light Company, Firstenergy Power Company Okeechobee Generating Company; Operating Companies and the CAE–34. ER99–3668,000, Duke Energy Cleveland Electric Illuminating Docket No. EL99–77,000, Central Merchants, LLC; ER99–3677,000, Company, et al. Hudson Gas & Electric Corporation, CMS Generation Michigan Power, CAE–20. Consolidated Edison Company of L.L.C.; ER99–3693,000, Midwest Docket No. ER99–3508,000, New York New York, Inc. and Long Island Generation, L.L.C.; ER99–3822,000, Independent System Operator, Inc. Lighting Company, et al. Casco Bay Energy Company, LLC; and Central Hudson Gas & Electric CAE–35. ER99–3911,000, Northbrook New Corporation, et al. Docket No. EL99–66,000, Wabash York, L.L.C.; ER99–4081,000, Bay CAE–21. Valley Power Association, Inc. and State GPE, Inc. Docket No. ER99–2229,001, California American Municpal Power-Ohio, CAE–5. Power Exchange Corporation Inc. v. American Electric Power Docket No. ER99–3339,000, California CAE–22. Service Corporation Independent System Operator Docket No. ER98–3853,003, New Other Nos. EL99–72,000, Indiana Corporation England Power Pool Municipal Power Agency v. CAE–6. CAE–23. American Electric Power Service Docket No. ER99–3876,000, Montana Docket No. QF95–61,003, Geysers Corporation Power Company Power Company, LLC Consent Agenda—Gas and Oil CAE–7. CAE–24. Docket No. ER99–3657,000, New Docket No. EC96–19,032, California CAG–1. England Power Pool Power Exchange Corporation Docket No. RP99–443,001, Petal Gas CAE–8. Other Nos. ER96–1663,033, California Storage Company Docket No. ER99–3110,000, Nevada Power Exchange Corporation CAG–2. Power Company CAE–25. Omitted CAE–9. Docket No. ER98–3527,002, PJM CAG–3. Docket No. ER99–3888,000, PP&L, Interconnection, L.L.C. Docket No. PR99–12,000, Transok, Inc. CAE–26. LLC CAE–10. Docket No. OA96–78,004, Detroit CAG–4. Docket No. ER98–1096,000, Southern Edison Company Omitted Company Services, Inc. CAE–27. CAG–5. Other Nos. EL98–24,000, Southern Docket No. ER97–1523,005, Central Docket No. PR99–14,000, Shenandoah Company Services, Inc.; ER94– Hudson Gas & Electric Corporation, Gas Company 1348,000, Southern Company Consolidated Edison Company of CAG–6. Services, Inc.; ER95–1468,000, New York, Inc. and Long Island Docket No. RP94–271,002, East Southern Company Services, Inc.; Lighting Company, et al. Tennessee Natural Gas Company OA96–27,000, Southern Company Other Nos. EC99–31,001, New York CAG–7. Services, Inc. Power Pool; ER97–1523,006, Docket No. RP99–437,001, Dauphin CAE–11. Central Hudson Gas & Electric Island Gathering Partners Docket No. ER98–1292,000, Dayton Corporation, Consolidated Edison CAG–8. Power and Light Company Company of New York, Inc. and Docket No. RP99–448,000, Southern Other Nos. EL98–20,000, Dayton Long Island Lighting Company, et Natural Gas Company Power and Light Company al.; ER97–4234,004, Central Hudson CAG–9. CAE–12. Gas & Electric Corporation, Docket No. RP95–408,000, Columbia Docket No. ER99–2331,001, Duke Consolidated Edison Company of Gas Transmission Corporation Energy Corporation New York, Inc. and Long Island CAG–10. CAE–13. Lighting Company, et al.; OA97– Docket No. RP96–272,008, Northern Docket No. ER99–2884,001, Pacific 470, 006, Central Hudson Gas & Natural Gas Company Gas and Electric Company Electric Corporation, Consolidated CAG–11. CAE–14. Edison Company of New York, Inc. Docket No. RP97–187,010, Arkansas Docket No. ER97–2355,000, Southern and Long Island Lighting Company, Western Pipeline, L.L.C. California Edison Company et al. CAG–12. Other Nos. ER98–1261,000, Southern CAE–28. Omitted California Edison Company; ER98– Omitted CAG–13. 1685,000, Southern California CAE–29. Omitted Edison Company Docket No. ER93–150,012, Boston CAG–14. CAE–15. Edison Company Docket No. RP99–421,000, KN Docket No. ER99–3468,000, Delmarva Other Nos. EL93–10,007, Boston Interstate Gas Transmission Power & Light Company Edison Company Company
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CAG–15. Pipeline Rate Matters changes to the terms and conditions of Docket No. RP99–227,000, High PR–1. both (1) Real Power Losses to allow for Island Offshore System, L.L.C. Reserved self-provision, and (2) the Spinning and CAG–16. II. Supplemental Operating Reserve Docket No. RS92–11,026, Texas Pipeline Certificate Matters Ancillary Services to be consistent with Eastern Transmission Corporation PC–1. the application of Southwestern’s CAG–17. Docket No. PL99–3,000, Determining provision for such services which will Omitted the Need for New Interstate Natural result in a change in rates for these CAG–18. Gas Pipeline Facilities services. These changes are addressed in Docket No. RP94–72,010, Iroquois Gas Statement of Policy. detail below. Transmission System, L.P. David P. Boergers, Real Power Losses Other Nos. FA92–59,008, Iroquois Gas Secretary. Transmission System, L.P.; RP97– [FR Doc. 99–23855 Filed 9–9–99; 10:52 am] The basis for determining the rate to 126,017, Iroquois Gas Transmission BILLING CODE 6717±01±P charge for Real Power Losses (Losses) in System, L.P. the current rate schedules (P–98B and CAG–19. NFTS–98B) for transmission service is Docket No. RP98–117,007, KN DEPARTMENT OF ENERGY the average actual costs incurred by Interstate Gas Transmission Southwestern for the purchase of energy Company Southwestern Power Administration to replace Losses during the most recent twelve-month period. Additionally, the CAG–20. Proposed Rate Schedule Changes Docket No. RP98–380,002, East current rate schedules require customers Tennessee Natural Gas Company AGENCY: Southwestern Power to purchase Losses from Southwestern CAG–21. Administration, DOE. to meet their obligation to replace loss Docket No. RP99–274,001, Kern River ACTION: Notice of Opportunity for Public energy. In the proposed rate schedules, Gas Transmission Company Review and Comment. the basis for determining the loss rate CAG–22. will remain the same; however, the Docket No. OR99–4,000, Sinclair Oil SUMMARY: The Administrator, period will be based on the previous Corporation v. Platte Pipe Line Southwestern Power Administration fiscal year (October through September) Company (Southwestern), has determined that rather than the most recent twelve- CAG–23. revisions to the terms and conditions month period. The rate for Losses, to be Omitted related to real power losses and both effective the next calendar year, will be CAG–24. operating reserves ancillary services posted on Southwestern’s Open Access Omitted within existing rate schedules NFTS– Same-Time Information System by CAG–25. 98B and P–98B are required. Since the November 1 of each year. Southwestern Docket No. CP98–538,003, proposed changes to the rate schedules also proposes, in addition to the existing Midwestern Gas Transmission are associated with the terms and rate schedule provision in which the Company conditions of service and revised billing customer purchases Losses, to allow the CAG–26. units for the ancillary services and do customer to annually elect to self- Docket No. CP96–542,001, Panhandle not impact the revenue requirements for provide all loss energy for which it is Eastern Pipe Line Company the Integrated System, the net results of responsible. Such election for the self- CAG–27. the 1997 Integrated System Power provision of Losses shall be for a full Docket No. CP96–27,004, Natural Gas Repayment Studies, which was the basis calendar year and shall be exercised by Pipeline Company of America for the existing rate schedules, will not the execution of a Service Agreement, or CAG–28. be altered. Southwestern held informal equivalent, on or before November 30th Docket No. CP97–256,003, KN meetings with customers to discuss of the prior calendar year. Southwestern Wattenberg Transmission Limited proposed changes and to provide proposes to initially implement this Liability Company opportunity for input in the new procedure effective January 1, development of these changes. 2000. Thereafter, the rate for losses will Hydro Agenda DATES: Written comments on the be reviewed and adjusted as needed to H–1. proposed rate schedule changes are due become effective at the beginning of Reserved on or before October 13, 1999. each subsequent calendar year. Electric Agenda ADDRESSES: Five copies of written Spinning and Supplemental Reserve comments should be submitted to: Ancillary Services E–1. Michael A. Deihl, Administrator, Reserved The Federal Energy Regulatory Southwestern Power Administration, Commission’s Order No. 888 states that Regular Agenda—Miscellaneous One West Third Street, Suite 1400, the transmission provider is required M–1. Tulsa, OK 71103. ‘‘to offer to provide the ancillary Docket No. RM98–16,000, FOR FURTHER INFORMATION CONTACT: Mr. services’’ for Spinning Operating Collaborative Procedures for Energy Forrest E. Reeves, Assistant Reserves and Supplemental Operating Facility Applications Administrator, Office of Corporate Reserves ‘‘to transmission customers M–2. Operations, (918) 595–6696, serving load in the transmission Docket No. RM98–1,000, Regulations [email protected]. provider’s control area.’’ The Governing Off-the-Record SUPPLEMENTARY INFORMATION: The transmission customer may make Communications names of the rate schedules will be alternative arrangements to acquire Final Rule. changed to NFTS–98C and P–98C in these services if the transmission order to reflect the fact that revisions customer demonstrates to the Oil and Gas Agenda have been made. Two areas of the rate transmission provider that it has I. schedules are being revised to reflect adequately done so. Consequently,
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Southwestern designed its rates for submitted to: Michael A. Deihl, ‘‘SUPPLEMENTARY INFORMATION’’ these services on that basis and Administrator, Southwestern Power section of this notice. provided (in Rate Schedules P–98B and Administration, One West Third Street, FOR FURTHER INFORMATION CONTACT: For NFTS–98B) that the rates for these Suite 1400, Tulsa, OK 74103. general information contact: Christine services were only to be applied to the Following review and consideration M. Augustyniak, Associate Director, transmission transactions that served of written comments, the Administrator Environmental Assistance Division load within Southwestern’s control area. will finalize and submit the proposed (7408), Office of Pollution Prevention For reliability purposes, Southwestern rate schedules to the Secretary of Energy operates its control area in accordance for approval on an interim basis. The and Toxics, Environmental Protection with the operating criteria of the Secretary will then forward the Agency, 401 M St., SW., Washington, Southwest Power Pool (SPP). The SPP proposed rate schedules to the Federal DC 20460; Telephone: 202–554–1404; criteria related to operating reserves Energy Regulatory Commission for TDD: 202–554–0551; e-mail: TSCA- require that each control area maintain confirmation and approval on a final [email protected]. For technical an amount of operating reserves based basis. information contact: Jim Alwood, on its net load responsibility. The effect Chemical Control Division (7405), Issued at Tulsa, OK this 25th day of August of this is that Southwestern provides 1999. Office of Pollution Prevention and operating reserves on all generation in Michael A. Deihl, Toxics, Environmental Protection its control area for both internal and Agency, 401 M St., SW., Washington, Administrator. external delivery. DC 20460, Telephone: 202–260–1857; [FR Doc. 99–23660 Filed 9–10–99; 8:45 am] After reviewing the existing operating Fax: 202–260–8168; e-mail: conditions, Southwestern has BILLING CODE 6450±01±P [email protected]. determined that rate schedules P–98B and NFTS–98B need to be revised to SUPPLEMENTARY INFORMATION: reflect the criteria under which ENVIRONMENTAL PROTECTION I. Does This Notice Apply to Me? Southwestern operates its transmission AGENCY system and provides the Operating You may be potentially affected by Reserve Services. Southwestern [OPPTS±00277; FRL±6096±4] this notice if you manufacture or import proposes to revise the terms and new chemical substances, as defined by Pre-Manufacture Reporting and conditions relating to the two Operating the Toxic Substances Control Act Reserve ancillary services to charge for Exemption Requirements; Request for (TSCA), or manufacture, process, or these services for all transmission Comments on Proposed Renewal import a chemical substance for a use transactions utilizing generation sources Information Collection located within Southwestern’s control that has been determined a significant AGENCY: Environmental Protection area because Southwestern is actually new use, as defined by TSCA. providing the Operating Reserve Agency (EPA). Potentially affected categories and services for those transactions. In ACTION: Notice. entities may include, but are not limited addition to these changes, the billing to the following: SUMMARY: In compliance with the units for these services will be revised Paperwork Reduction Act (PRA) (44 to reflect the additional users of these U.S.C. 3501 et seq.), EPA is seeking Standard Industrial Clas- services, resulting in a decrease in the Type of Business public comment and information on the sification (SIC) Code unit rate for these services from $0.03 following Information Collection per kW/month for Spinning Operating Chemical manu- 28 Reserve Services and $0.03 per kW/ Request (ICR): Pre-Manufacture Review facturing month for Supplemental Operating Reporting and Exemption Requirements Petroleum refining 29 Reserve Services to approximately for New Chemical Substances and Photographic 386 $0.0073 per kW/month for each of these Significant New Use Reporting equipment two ancillary services. This will not Requirements for Chemical Substances (EPA ICR No. 0574.11, OMB No. 2070– change Southwestern’s revenue This table is not intended to be 0012). This ICR involves a collection requirements to recover the cost of exhaustive but rather provides a guide activity that is currently approved and providing these services. for readers regarding entities likely to be Redlined versions of the revised rate scheduled to expire on December 31, 1999. The ICR describes the nature of affected by this action. Other types of schedules NFTS–98C and P–98C will be entities not listed in this table could made available upon request. To request the information collection activity and its expected burden and costs. Before also be affected. To determine whether a copy, please contact Barbara Otte at you or your business is affected by this 918–595–6674 or at [email protected] or submitting this ICR to the Office of action, you should carefully examine Tracey Hannon at 918–595–6677 or at Management and Budget (OMB) for the applicability provisions at 40 CFR [email protected]. review and approval under the PRA, The Administrator has determined EPA is soliciting comments on specific part 720, Subpart B, 40 CFR part 721, that written comments will provide aspects of the collection. Subparts A and C, 40 CFR part 723, adequate opportunity for public DATES: Written comments, identified by Subpart B, and 40 CFR part 725, participation in the rate schedule the docket control number ‘‘OPPTS– Subparts A, B, D, E, F, G, and L. If you revision process. Therefore, an 00277’’ and administrative record have any questions regarding the opportunity is presented for interested number 215, must be received on or applicability of this action to a parties to submit written comments on before November 12, 1999. particular entity, consult the technical the proposed rate schedule changes. ADDRESSES: Comments may be person listed in the ‘‘FOR FURTHER Written comments are due no later than submitted by mail, electronically, or in INFORMATION CONTACT’’ section. thirty (30) days following publication of person. Please follow the detailed this notice in the Federal Register. Five instructions for each method as copies of written comments should be provided in Unit III. of the
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II. How Can I Get Additional 401 M St., SW., Washington, DC, D. What Should I Consider When I Information or Copies of This Telephone: 202–260–7093. Prepare My Comments for EPA? 3. Electronically. Submit your Document or Other Support We invite you to provide your views comments and/or data electronically by Documents? on the various options we propose, new e-mail to: [email protected]. Please approaches we haven’t considered, the A. Electronic Availability note that you should not submit any potential impacts of the various options Electronic copies of this ICR are information electronically that you (including possible unintended available from the EPA website at the consider to be CBI. Electronic comments consequences), and any data or ‘‘Federal Register-Environmental must be submitted as an ASCII file information that you would like the Documents’’ entry for this document avoiding the use of special characters Agency to consider during the under ‘‘Laws and Regulations’’ (http:// and any form of encryption. Comment development of the final action. You www.epa.gov/fedrgstr/). You can follow and data will also be accepted on may find the following suggestions the menu to find this Federal Register standard computer disks in WordPerfect helpful for preparing your comments: notice using the publication date or the 5.1/6.1 or ASCII file format. All • Explain your views as clearly as Federal Register citation for this notice. comments and data in electronic form possible. must be identified by the docket control B. Fax-on-Demand • Describe any assumptions that you number ‘‘OPPTS–00277’’ and used. You may request to receive a faxed administrative record number 215. • Provide solid technical information copy of the ICR by using a faxphone to Electronic comments on this notice may and/or data to support your views. call 202–401–0527 and selecting item also be filed online at many Federal • If you estimate potential burden or 4071. You may also follow the Depository Libraries. costs, explain how you arrived at the automated menu. B. How Should I Handle CBI estimate. C. In Person or By Phone Information That I Want To Submit To • Provide specific examples to the Agency? illustrate your concerns. If you have any questions or need • additional information about this notice You may claim information that you Offer alternative ways to improve the collection activity. or the ICR referenced, please contact the submit in response to this notice as CBI • person identified in the ‘‘FOR by marking any part or all of that Make sure to submit your comments FURTHER INFORMATION CONTACT’’ information as CBI. Information so by the deadline in this notice. • At the beginning of your comments section. marked will not be disclosed except in (e.g., as part of the ‘‘Subject’’ heading), In addition, the official record for this accordance with procedures set forth in be sure to properly identify the notice, including the public version, has 40 CFR part 2. A copy of the comment document on which you are been established under docket control that does not contain CBI must also be commenting. You can do this by number ‘‘OPPTS–00277’’ (including submitted for inclusion in the public providing the docket control number comments and data submitted record. Information not marked assigned to the notice, along with the electronically as described below). A confidential will be included in the name, date, and Federal Register public version of this record, including public docket by EPA without prior citation, or by using the appropriate printed, paper versions of any electronic notice. If you have any questions about EPA or OMB ICR number. comments, which does not include any CBI or the procedures for claiming CBI, information claimed as Confidential please consult with the technical IV. To What Information Collection Business Information (CBI), is available person, listed in the ‘‘FOR FURTHER Activity or ICR Does This Notice for inspection in the TSCA INFORMATION CONTACT’’ section. Apply? Nonconfidential Information Center, C. What Information is EPA Particularly EPA is seeking comments on the Rm. NE B–607, 401 M St., SW., Interested in? following ICR: Washington, DC. The Center is open Pursuant to section 3506(c)(2)(a) of Title: Pre-Manufacture Review from 12 noon to 4 p.m., Monday Reporting and Exemption Requirements through Friday, excluding legal the PRA, EPA specifically solicits comments and information to enable it for New Chemical Substances and holidays. The telephone number of the Significant New Use Reporting Center is 202–260–7099. to: 1. Evaluate whether the proposed Requirements for Chemical Substances. III. How Can I Respond to This Notice? collections of information are necessary ICR numbers: EPA ICR No. 0574.11, for the proper performance of the OMB No. 2070–0012. A. How and to Whom Do I Submit the ICR status: This ICR is currently Comments? functions of the Agency, including whether the information will have scheduled to expire on December 31, You may submit comments through practical utility. 1999. An Agency may not conduct or the mail, in person, or electronically. Be 2. Evaluate the accuracy of the sponsor, and a person is not required to sure to identify the appropriate docket Agency’s estimates of the burdens of the respond to, a collection of information, control number ‘‘OPPTS–00277’’ and proposed collections of information. unless it displays a currently valid OMB administrative record number 215 in 3. Enhance the quality, utility, and control number. The OMB control your correspondence. clarity of the information to be numbers for EPA’s information 1. By mail. Submit written comments collected. collections appear on the collection to: Document Control Office (7407), 4. Minimize the burden of the instruments or instructions, in the Office of Pollution Prevention and collections of information on those who Federal Register notices for related Toxics (OPPT), Environmental are to respond, including through the rulemakings and ICR notices, and, if the Protection Agency, 401 M St., SW., use of appropriate automated or collection is contained in a regulation, Washington, DC 20460. electronic collection technologies or in a table of OMB approval numbers in 2. In person or by courier. Deliver other forms of information technology, 40 CFR part 9. written comments to: Document Control e.g., permitting electronic submission of Abstract: TSCA section 5 requires Office in Rm. G–099, Waterside Mall, responses. manufacturers and importers of new
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Wayland, the review, EPA may take further information; search data sources; regulatory action under TSCA, if complete and review the collection of Deputy Assistant Administrator for warranted. If EPA takes no action within information; and transmit or otherwise Prevention, Pesticides and Toxic Substances. 90 days, the submitter is free to disclose the information. [FR Doc. 99–23711 Filed 9–10–99; 8:45 am] manufacture or import the new The ICR provides a detailed BILLING CODE 6560±50±F chemical substance without restriction. explanation of this estimate, which is TSCA section 5 also authorizes EPA only briefly summarized in this notice. to issue Significant New Use Rules The annual public burden for this ENVIRONMENTAL PROTECTION (SNURs). EPA uses this authority to take collection of information is estimated to AGENCY follow-up action on new or existing average 101.5 hours per response. The chemicals that may present an following is a summary of the estimates [FRL±6436±1] unreasonable risk to human health or taken from the ICR: the environment if used in a manner Respondents/affected entities: Entities Prevention of Significant Deterioration that may result in different and/or potentially affected by this action are of Air Quality (PSD) Final higher exposures of a chemical to manufacturers or importers of new Determinations humans or the environment. Once a use chemical substances, as defined by the AGENCY: Environmental Protection is determined to be a significant new TSCA, or manufacturers, processors, or Agency. use, persons must submit a notice to importers of a chemical substance for a EPA 90 days before beginning use that has been determined a ACTION: Notice of final actions. manufacture, processing, or importation significant new use, as defined by SUMMARY: The purpose of this document of a chemical substance for that use. TSCA. is to announce that between April 9, Such a notice allows EPA to receive and Estimated total number of potential 1997, and February 28, 1999, the U.S. review information on such a use and, respondents: 432. Environmental Protection Agency (EPA) if necessary, regulate the use before it Frequency of response: On occasion. Region 2 Office, issued 2 final occurs. Estimated total/average number of determinations, the New Jersey Finally, TSCA section 5 also permits responses for each respondent: 5–6 Department of Environmental Protection applications for exemption from section (average). issued 4 final determinations and the 5 review under certain circumstances. Estimated total annual burden hours: New York State Department of An applicant must provide information 241,611 hours. Environmental Conservation (NYSDEC) sufficient for EPA to make a Estimated total annual burden costs: issued 2 final determinations pursuant determination that the circumstances in $31.665 million. to the Prevention of Significant question qualify for an exemption. In Deterioration of Air Quality (PSD) granting an exemption, EPA may VI. Are There Changes in the Estimates regulations codified at 40 CFR 52.21. In impose appropriate restrictions. From the Last Approval? addition, this notice announces a third Responses to the collection of There is no change in burden from EPA Region 2 final determination that information are mandatory (see 40 CFR that indicated in the information occurred after February 28, 1999 on the parts 720, 721, and 723). Respondents collection most recently approved by AES Puerto Rico, L.P. PSD permit may claim all or part of a notice OMB. issued by EPA. confidential. EPA will disclose VII. What is the Next Step in the information that is covered by a claim DATES: The effective dates for the above Process for This ICR? of confidentiality only to the extent determinations are delineated in the permitted by, and in accordance with, EPA will consider the comments following chart (See SUPPLEMENTARY the procedures in TSCA section 14 and received and amend the ICR as INFORMATION). 40 CFR part 2. appropriate. The final ICR package will FOR FURTHER INFORMATION CONTACT: Mr. then be submitted to OMB for review Frank Jon of the Permitting Section, Air V. What Are EPA’s Burden and Cost and approval pursuant to 5 CFR Programs Branch, Division of Estimates for This ICR? 1320.12. EPA will issue another Federal Environmental Planning and Protection, Under the PRA, ‘‘burden’’ means the Register notice pursuant to 5 CFR U.S. Environmental Protection Agency, total time, effort, or financial resources 1320.5(a)(1)(iv) to announce the Region 2 Office, 290 Broadway, 25th expended by persons to generate, submission of the ICR to OMB and the Floor, New York, New York 10007– maintain, retain, or disclose or provide opportunity to submit additional 1866, at (212) 637–4085. information to or for a Federal Agency. comments to OMB. If you have any SUPPLEMENTARY INFORMATION: Pursuant For this collection it includes the time questions about this ICR or the approval to the PSD regulations, the EPA Region needed to review instructions; develop, process, please contact the person listed 2 Office, the NJDEP, and the NYSDEC acquire, install, and utilize technology in the ‘‘FOR FURTHER INFORMATION have made final PSD determinations and systems for the purposes of CONTACT’’ section. relative to the sources listed below:
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Name Location Project Agency Final action Date
American Ref-Fuel Com- Newark, New Jersey ...... Municipal waste inciner- NJDEP ..... PSD Permit Revision June 29, 1997. pany of Essex County. ator with a NOX limit of 164 ppm (3-hour aver- age) revised to 155 ppm (24-hour aver- age).. Hoffman La RocheÐ Belvidere, New Jersey .... New combustion turbine NJDEP ..... PSD Permit Revision October 8, 1997. Roche Vitamins. (GE Frame 6, MS6001B) rated at 40 MW and heat recovery steam generator with duct burner for supple- mental firing of 167 MMBTU/hr. This new cogeneration will re- place existing cogen- eration (reciprocating engines) and will result in net reduction of 2023 per year (tpy) of NOX and 701 tpy of SO2. Wyeth Ayerst Pharma- Town of Orangetown, Modification to an exist- NYSDEC .. PSD Permit Modifica- December 12, 1997. ceuticals. New York. ing PSD facility to tion. allow the firing of nat- ural gas (as the pri- mary fuel) and number 2 distillate oil (as the backup fuel) in their existing two duct burn- ers in the cogen.
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Name Location Project Agency Final action Date
Hess Oil Virgin Islands St. Croix, Virgin Islands .. HOVIC owns and oper- EPA ...... PSD Permit Revision December 12, 1997 Corporation (HOVIC). ates a petroleum refin- ery and requested the following facility changes to its PSD permit: 1. Increasing the max- imum throughput limit of the fluid catalytic cracking unit (FCCU) complex to 150,000 barrels per day of low sulfur fuel-oil (from 125,000 barrels per day), and increasing the VOC mass emis- sion limits to 12.1 pounds per hour (from 9.6 pounds per hour) and 52.7 tons per year (from 40 tons per year); 2. Increasing the produc- tion limit of the sulfuric acid plant to 320 tons per day (from 275 tons per day), and increas- ing the sulfuric acid mist mass emission limits to 2 pounds per hour (from 1.7 pounds per hour) and 8.8 tons per year (from 7.5 tons per year); 3. Incorporating start-up exemptions from the PSD emission limits, for the FCCU complex, the sulfuric acid plant, and the sulfuric acid plant process heaters; and 4. Providing increased flexibility in the types and amounts of fuel-oil allowed to be burned in existing fuel-consuming units. This flexibility in- cludes use of an inter- mittent control strategy (i.e., switch-over to a lower sulfur fuel-oil) based on atmospheric conditions
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Name Location Project Agency Final action Date
Abbott Laboratories ...... Barceloneta, Puerto Rico EPA revised the permit EPA ...... PSD Permit Adminis- April 3, 1998. conditions with respect trative Amendment. to 3 oil-fired boilers (two existing units and one ``new,'' replace- ment unit), which are not PSD-affected emis- sion units (that is, these existing units did not require a BACT re- view or air quality im- pact analyses). The conditions for these boilers were originally incorporated into the Abbott PSD permit to provide contempora- neous decreases for PM emission exceedances from Ab- bott's PSD-affected co- generation facility and, in the subject case, to provide contempora- neous decreases for a PSD non-applicability determination. Specifi- cally, the changes from the currently-effective PSD permit with re- spect to the 3 oil-fired boilers will not cause a significant increase in emissions of any PSD- affected pollutant.
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Name Location Project Agency Final action Date
Union County Resource Rahway, New Jersey ...... Permit amendment to NJDEP ..... PSD Permit Adminis- April 29, 1998. Recovery Facility. clarify an increased trative Amendment. waste throughput and the acceptance of ID type 27 waste. The fa- cility was designed and permitted at a ``nominal capacity'' of 1440 tons per day (tpd) of solid waste for three units (i.e., 480 tpd per unit) having a higher heating value (HHV) of 5400 BTU per pound of waste. This cor- responds to the design input of 216 MMBTU per hour per unit. Based on operational data, HHV of the waste processed has aver- aged 5050 BTU per pound of waste. In order to maintain the design heat input of 216 MMBTU per hour per unit, the facility must process a refuse throughput of 513.33 tpd of waste having an average of HHV of 5050 BTU per pound of waste. Based on the facility's original stoker diagram, it operating envelop allows an ac- tual waste throughput for each unit to vary between 432 tpd and 528 tpd (i.e., HHV ranging from 3,800 to 6,000 BTU per pound of waste), for maintain- ing the design heat input of 216 MMBTU per hour per unit. Therefore, NJDEP is not authorizing a change in the oper- ation of the facility, but rather is clarifying the intent of the original approval. New York City Depart- Staten Island, New York Project consists of landfill NYSDEC .. New PSD Permit ...... July 6, 1998. ment of SanitationÐ gas collection and flar- Fresh Kills Gas Flaring ing systems. It includes Project. ten enclosed flares (9 active and one stand- by). The maximum flar- ing capacity will be 32,728 cubic feet per minute of landfill gas. This project is subject to PSD for NOX, SO2, and PM/PM10. In addi- tion, the project is sub- ject to nonattainment review for CO and NOX.
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Name Location Project Agency Final action Date
AES Puerto Rico, L.P. .... Guayama, Puerto Rico ... A new coal-fired 454 MW EPA ...... New PSD Permit ...... Permit Issuance: Sep- steam electric cogen- tember 18, 1998 eration facility. The PSD Permit Effective PSD permit was ap- Date: May 27, pealed in November 1999. 1998. On May 27,1999, EPA's Envi- ronmental Appeals Board (EAB) denied the petitions for review. Roche VitaminsÐHoff- Belvidere, New Jersey .... Project consists of four NJDEP ..... PSD Permit Revision February 5, 1999. man La-Roche. boilers. Boilers No. 1, 2, 3, and 4 having fuel firing capacity of 84.4, 13.4, 15.2 and 11.8 MMBTU/hr, respec- tively. The PSD permit was revised to change the backup fuel from No. 6 fuel oil to No. 2 fuel oil with 0.05% sul- fur in all boilers.
This document lists only the sources Dated: August 26, 1999. meeting will be held at the Federal that have received final PSD William J. Muszynski, Communications Commission, Portals determinations. Anyone who wishes to Acting Regional Administrator, Region 2. II, 445 Twelfth Street, S.W., Room TW– review these determinations and related [FR Doc. 99–23585 Filed 9–10–99; 8:45 am] C305, Washington, DC 20554. This meeting is open to the members materials should contact the following BILLING CODE 6560±50±P offices: of the general public. The FCC will attempt to accommodate as many EPA Actions participants as possible. The public may FEDERAL COMMUNICATIONS submit written statements to the NANC, U.S. Environmental Protection COMMISSION Agency, Region 2 Office, Air which must be received two business Programs Branch—25th Floor 290 [CC Docket No. 92±237; DA 99±1830] days before the meeting. In addition, Broadway, New York, New York oral statements at the meeting by parties 10007–1866. Next Meeting of the North American or entities not represented on the NANC Numbering Council will be permitted to the extent time NJDEP Actions AGENCY: Federal Communications permits. Such statements will be limited New Jersey Department of Commission. to five minutes in length by any one Environmental Protection and party or entity, and requests to make an ACTION: Notice. Energy, Division of Environmental oral statement must be received two Quality, Bureau of Engineering and SUMMARY: On September 8, 1999, the business days before the meeting. Technology 401 East State Street, Commission released a public notice Requests to make an oral statement or Trenton, New Jersey 08625. announcing the September 28 and 29, provide written comments to the NANC NYSDEC Actions 1999, meeting and agenda of the North should be sent to Jeannie Grimes at the American Numbering Council (NANC). address under FOR FURTHER INFORMATION New York State Department of The intended effect of this action is to CONTACT, stated above. Environmental Conservation, make the public aware of the NANC’s Division of Air Resources, Source Proposed Agenda—Tuesday, September next meeting and its agenda. Review and Regional Support 28, 1999 FOR FURTHER INFORMATION CONTACT: Section 50 Wolf Road, Albany, New 1. Approval of August 24–25, 1999, Jeannie Grimes at (202) 418–2320 or York 12233–0001 meeting minutes. [email protected]. The address is: 2. Local Number Portability If available pursuant to the Network Services Division, Common Consolidated Permit Regulations (40 Administration (LNPA) Working Group Carrier Bureau, Federal Report. Update on wireline wireless CFR part 124), judicial review of these Communications Commission, The integration report. determinations under section 307(b)(1) Portals, 445 Twelfth Street, S.W., Suite 3. Reseller’s Code Usage and Forecast of the Clean Air Act (the Act) may be 6A320, Washington, DC 20554. The fax Reporting. Discussion and closure on sought only by the filing of a petition for number is: (202) 418–2345. The TTY recommendaton for reporting of review in the United States Court of number is: (202) 418–0484. reseller’s data. Appeals for the appropriate circuit SUPPLEMENTARY INFORMATION: Released: 4. Numbering Resource Optimization within 60 days from the date on which September 8, 1999. (NRO) Working Group Report. Final these determinations are published in The next meeting of the North review of modifications to telephone the Federal Register. Under section American Numbering Council (NANC) number reservation process. 307(b)(2) of the Act, these will be held on Tuesday, September 28, 5. Issue Management Group, determinations shall not be subject to 1999, from 8:30 a.m., until 5:00 p.m., Paragraph 165, Notice of Proposed later judicial review in civil or criminal and on Wednesday, September 29, 1999, Rulemaking, CC Docket 99–200. Review proceedings for enforcement. from 8:30 a.m., until 12 noon. The finalized report.
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6. North American Numbering Plan for reporting and drawing funds: 83.537, FEDERAL EMERGENCY Administration (NANPA) Oversight Community Disaster Loans; 83.538, Cora MANAGEMENT AGENCY Working Group Report. Brown Fund Program; 83.539, Crisis [FEMA±1286-DR] 7. Lockheed Martin-CIS NANPA Counseling; 83.540, Disaster Legal Services Program; 83.541, Disaster Unemployment update regarding geographic area code Assistance (DUA); 83.542, Fire Suppression Nebraska; Major Disaster and Related splits that follow other than existing rate Assistance; 83.543, Individual and Family Determinations center lines. Grant (IFG) Program; 83.544, Public AGENCY: Federal Emergency Wednesday, September 29, 1999 Assistance Grants; 83.545, Disaster Housing Program; 83.548, Hazard Mitigation Grant Management Agency (FEMA). 8. Cost Recovery Working Group Program). ACTION: Notice. Report. Review issue statement which Lacy E. Suiter, explores the long range relationships of Executive Associate Director, Response and SUMMARY: This is a notice of the the Number Portability Administration Recovery Directorate. Presidential declaration of a major Center (NPAC) and Limited Liability [FR Doc. 99–23741 Filed 9–10–99; 8:45 am] disaster for the State of Nebraska (FEMA–1286-DR), dated August 20, Corporations (LLCs). BILLING CODE 6718±02±P 9. Audits Issue Management Group. 1999, and related determinations. NANC review of NANPA Central Office EFFECTIVE DATE: August 20, 1999. (CO) Code Audit Obligations and Audit FEDERAL EMERGENCY FOR FURTHER INFORMATION CONTACT: Framework Recommendation MANAGEMENT AGENCY Madge Dale, Response and Recovery documents. Directorate, Federal Emergency 10. Industry Numbering Committee [FEMA±1283±DR] Management Agency, Washington, DC (INC) Report. 20472, (202) 646–3772. 11. Steering Group Report. Minnesota; Amendment No. 3 to Notice SUPPLEMENTARY INFORMATION: Notice is 12. Other Business. of a Major Disaster Declaration hereby given that, in a letter dated Federal Communications Commission. August 20, 1999, the President declared AGENCY: Federal Emergency a major disaster under the authority of Kurt A. Schroeder, Management Agency (FEMA). Acting Chief, Network Services Division, the Robert T. Stafford Disaster Relief Common Carrier Bureau. ACTION: Notice. and Emergency Assistance Act (42 [FR Doc. 99–23804 Filed 9–10–99; 8:45 am] U.S.C. 5121 et seq.), as follows: SUMMARY: This notice amends the notice BILLING CODE 6712±01±P of a major disaster for the State of I have determined that the damage in Minnesota, (FEMA–1283–DR), dated certain areas of the State of Nebraska, resulting from severe storms and flooding July 28, 1999, and related FEDERAL EMERGENCY beginning on August 6, 1999, and continuing determinations. through August 9, 1999, is of sufficient MANAGEMENT AGENCY EFFECTIVE DATE: September 2, 1999. severity and magnitude to warrant a major [FEMA±3134±EM] disaster declaration under the Robert T. FOR FURTHER INFORMATION CONTACT: Stafford Disaster Relief and Emergency Madge Dale, Response and Recovery Illinois; Amendment No. 6 to Notice of Assistance Act, P.L. 93–288, as amended Directorate, Federal Emergency an Emergency (‘‘the Stafford Act’’). I, therefore, declare that Management Agency, Washington, DC such a major disaster exists in the State of AGENCY: Federal Emergency 20472, (202) 646–3772. Nebraska. In order to provide Federal assistance, you Management Agency (FEMA). SUPPLEMENTARY INFORMATION: The notice are hereby authorized to allocate from funds ACTION: Notice. of a major disaster for the State of available for these purposes, such amounts as Minnesota is hereby amended to you find necessary for Federal disaster SUMMARY: This notice amends the notice include the following area among those assistance and administrative expenses. of an emergency for the State of Illinois areas determined to have been adversely You are authorized to provide Individual (FEMA–3134–EM), dated January 8, affected by the catastrophe declared a Assistance, Public Assistance, and Hazard 1999, and related determinations. major disaster by the President in his Mitigation in the designated areas. Consistent EFFECTIVE DATE: August 23, 1999. declaration of July 28, 1999: with the requirement that Federal assistance be supplemental, any Federal funds provided FOR FURTHER INFORMATION CONTACT: Beltrami County for Individual Assistance under the Stafford Act for Public Assistance Madge Dale, Response and Recovery and Public Assistance. or Hazard Mitigation will be limited to 75 Directorate, Federal Emergency (The following Catalog of Federal Domestic percent of the total eligible costs. Management Agency, Washington, DC Assistance Numbers (CFDA) are to be used Further, you are authorized to make 20472, (202) 646–3260. for reporting and drawing funds: 83.537, changes to this declaration to the extent Community Disaster Loans; 83.538, Cora SUPPLEMENTARY INFORMATION: The notice allowable under the Stafford Act. Brown Fund Program; 83.539, Crisis of an emergency for the State of Illinois, Counseling; 83.540, Disaster Legal Services The time period prescribed for the is hereby amended to include the Program; 83.541, Disaster Unemployment implementation of section 310(a), following area among those areas Assistance (DUA); 83.542, Fire Suppression Priority to Certain Applications for determined to have been adversely Assistance; 83.543, Individual and Family Public Facility and Public Housing affected by the catastrophe declared an Grant (IFG) Program; 83.544, Public Assistance, 42 U.S.C. 5153, shall be for emergency by the President in his Assistance Grants; 83.545, Disaster Housing a period not to exceed six months after declaration of January 8, 1999: Program; 83.548, Hazard Mitigation Grant the date of this declaration. Program.) Douglas County for reimbursement for Notice is hereby given that pursuant emergency protective measures, Category B, Robert J. Adamcik, to the authority vested in the Director of under the Public Assistance program for a Deputy Associate Director, Response and the Federal Emergency Management period of 48 hours. Recovery Directorate. Agency under Executive Order 12148, I (The following Catalog of Federal Domestic [FR Doc. 99–23737 Filed 9–10–99; 8:45 am] hereby appoint Charles E. Biggs of the Assistance Numbers (CFDA) are to be used BILLING CODE 6718±02±P Federal Emergency Management Agency
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49493 to act as the Federal Coordinating Act’’). I, therefore, declare that such a major SUMMARY: This notice amends the notice Officer for this declared disaster. disaster exists in the State of Texas. of a major disaster for the State of Texas, I do hereby determine the following In order to provide Federal assistance, you (FEMA–1287–DR), dated August 22, areas of the State of Nebraska to have are hereby authorized to allocate from funds available for these purposes, such amounts as 1999, and related determinations. been affected adversely by this declared you find necessary for Federal disaster EFFECTIVE DATE: August 25, 1999. major disaster: assistance and administrative expenses. FOR FURTHER INFORMATION CONTACT: Burt, Douglas and Washington Counties for You are authorized to provide debris Madge Dale, Response and Recovery Individual Assistance and Public Assistance. removal and emergency protective measures Directorate, Federal Emergency (Categories A and B), under the Public Management Agency, Washington, DC All counties within the State of Assistance program, and Hazard Mitigation Nebraska are eligible to apply for in the designated areas and any other forms 20472, (202) 646–3772. assistance under the Hazard Mitigation of assistance under the Stafford Act you may SUPPLEMENTARY INFORMATION: The notice Grant Program. deem appropriate. Consistent with the of a major disaster for the State of Texas requirement that Federal assistance be is hereby amended to include the (The following Catalog of Federal Domestic supplemental, any Federal funds provided Assistance Numbers (CFDA) are to be used following areas among those areas under the Stafford Act for Public Assistance determined to have been adversely for reporting and drawing funds: 83.537, or Hazard Mitigation will be limited to 75 Community Disaster Loans; 83.538, Cora percent of the total eligible costs. affected by the catastrophe declared a Brown Fund Program; 83.539, Crisis Further, you are authorized to make major disaster by the President in his Counseling; 83.540, Disaster Legal Services changes to this declaration to the extent declaration of August 22, 1999: Program; 83.541, Disaster Unemployment allowable under the Stafford Act. Assistance (DUA); 83.542, Fire Suppression Brooks, Duval, Jim Wells, and Webb Counties for debris removal and emergency Assistance; 83.543, Individual and Family Notice is hereby given that pursuant protective measures (Categories A and B) Grant (IFG) Program; 83.544, Public to the authority vested in the Director of under the Public Assistance program. Assistance Grants; 83.545, Disaster Housing the Federal Emergency Management Program; 83.548, Hazard Mitigation Grant Agency under Executive Order 12148, I (The following Catalog of Federal Domestic Program) hereby appoint Brad Gair of the Federal Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 83.537, James L. Witt, Emergency Management Agency to act Community Disaster Loans; 83.538, Cora Director. as the Federal Coordinating Officer for Brown Fund Program; 83.539, Crisis [FR Doc. 99–23735 Filed 9–10–99; 8:45 am] this declared disaster. Counseling; 83.540, Disaster Legal Services BILLING CODE 6718±02±P I do hereby determine the following Program; 83.541, Disaster Unemployment areas of the State of Texas to have been Assistance (DUA); 83.542, Fire Suppression affected adversely by this declared Assistance; 83.543, Individual and Family FEDERAL EMERGENCY major disaster: Grant (IFG) Program; 83.544, Public MANAGEMENT AGENCY Assistance Grants; 83.545, Disaster Housing The counties of Aransas, Cameron, Program; 83.548, Hazard Mitigation Grant [FEMA±1287±DR] Kenedy, Kleberg, Nueces, San Patricio, and Program.) Willacy for debris removal and emergency Lacy E. Suiter, Texas; Major Disaster and Related protective measures (Categories A and B) under the Public Assistance program. Executive Associate Director, Response and Determinations Recovery Directorate. All counties within the State of Texas [FR Doc. 99–23738 Filed 9–10–99; 8:45 am] AGENCY: Federal Emergency are eligible to apply for assistance under Management Agency (FEMA). the Hazard Mitigation Grant Program. BILLING CODE 6718±02±P ACTION: Notice. (The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used SUMMARY: This is a notice of the FEDERAL EMERGENCY for reporting and drawing funds: 83.537, MANAGEMENT AGENCY Presidential declaration of a major Community Disaster Loans; 83.538, Cora disaster for the State of Texas (FEMA– Brown Fund Program; 83.539, Crisis [FEMA±1287±DR] 1287–DR), dated August 22, 1999, and Counseling; 83.540, Disaster Legal Services related determinations. Program; 83.541, Disaster Unemployment Texas; Amendment No. 2 to Notice of EFFECTIVE DATE: August 22, 1999. Assistance (DUA); 83.542, Fire Suppression a Major Disaster Declaration Assistance; 83.543, Individual and Family FOR FURTHER INFORMATION CONTACT: Grant (IFG) Program; 83.544, Public AGENCY: Federal Emergency Madge Dale, Response and Recovery Assistance Grants; 83.545, Disaster Housing Management Agency (FEMA). Directorate, Federal Emergency Program; 83.548, Hazard Mitigation Grant ACTION: Notice. Management Agency, Washington, DC Program.) 20472, (202) 646–3772. James L. Witt, SUMMARY: This notice amends the notice SUPPLEMENTARY INFORMATION: Notice is Director. of a major disaster for the State of Texas hereby given that, in a letter dated [FR Doc. 99–23736 Filed 9–10–99; 8:45 am] (FEMA–1287–DR), dated August 22, August 22, 1999, the President declared BILLING CODE 6718±02±P 1999, and related determinations. a major disaster under the authority of EFFECTIVE DATE: August 26, 1999. the Robert T. Stafford Disaster Relief FOR FURTHER INFORMATION CONTACT: and Emergency Assistance Act (42 FEDERAL EMERGENCY Madge Dale, Response and Recovery U.S.C. 5121 et seq.), as follows: MANAGEMENT AGENCY Directorate, Federal Emergency I have determined that the damage in [FEMA±1287±DR] Management Agency, Washington, DC certain areas of the State of Texas, resulting 20472, (202) 646–3772. from severe storms and flooding caused by Texas; Amendment No. 1 to Notice of SUPPLEMENTARY INFORMATION: Notice is Hurricane Bret beginning on August 21, a Major Disaster Declaration hereby given that the incident period for 1999, and continuing, is of sufficient severity this disaster is closed effective August and magnitude to warrant a major disaster AGENCY: Federal Emergency 26, 1999. declaration under the Robert T. Stafford Management Agency (FEMA). Disaster Relief and Emergency Assistance ACTION: Notice. (The following Catalog of Federal Domestic Act, P.L. 93–288, as amended (‘‘the Stafford Assistance Numbers (CFDA) are to be used
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49494 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices for reporting and drawing funds: 83.537, Program; 83.548, Hazard Mitigation Grant a period not to exceed six months after Community Disaster Loans; 83.538, Cora Program.) the date of this declaration. Brown Fund Program; 83.539, Crisis Robert J. Adamcik, Notice is hereby given that pursuant Counseling; 83.540, Disaster Legal Services Deputy Associate Director, Response and to the authority vested in the Director of Program; 83.541, Disaster Unemployment Recovery Directorate. the Federal Emergency Management Assistance (DUA); 83.542, Fire Suppression [FR Doc. 99–23740 Filed 9–10–99; 8:45 am] Agency under Executive Order 12148, I Assistance; 83.543, Individual and Family BILLING CODE 6718±02±P hereby appoint Steve L. Olsen of the Grant (IFG) Program; 83.544, Public Federal Emergency Management Agency Assistance Grants; 83.545, Disaster Housing to act as the Federal Coordinating Program; 83.548, Hazard Mitigation Grant Officer for this declared disaster. Program.) FEDERAL EMERGENCY MANAGEMENT AGENCY I do hereby determine the following Lacy E. Suiter, areas of the State of Utah to have been Executive Associate Director, Response and [FEMA±1285±DR] affected adversely by this declared Recovery Directorate. Utah; Major Disaster and Related major disaster: [FR Doc. 99–23739 Filed 9–10–99; 8:45 am] Determinations Salt Lake County for Individual Assistance BILLING CODE 6718±02±P and Public Assistance. AGENCY: Federal Emergency All counties within the State of Utah Management Agency (FEMA). are eligible to apply for assistance under FEDERAL EMERGENCY ACTION: Notice. MANAGEMENT AGENCY the Hazard Mitigation Grant Program. SUMMARY: This is a notice of the (The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used [FEMA±1287±DR] Presidential declaration of a major disaster for the State of Utah (FEMA– for reporting and drawing funds: 83.537, Community Disaster Loans; 83.538, Cora Texas; Amendment No. 3 to Notice of 1285–DR), dated August 16, 1999, and Brown Fund Program; 83.539, Crisis a Major Disaster Declaration related determinations. Counseling; 83.540, Disaster Legal Services EFFECTIVE DATE: August 16, 1999. Program; 83.541, Disaster Unemployment AGENCY: Federal Emergency FOR FURTHER INFORMATION CONTACT: Assistance (DUA); 83.542, Fire Suppression Management Agency (FEMA). Madge Dale, Response and Recovery Assistance; 83.543, Individual and Family Grant (IFG) Program; 83.544, Public ACTION: Notice. Directorate, Federal Emergency Assistance Grants; 83.545, Disaster Housing Management Agency, Washington, DC Program; 83.548, Hazard Mitigation Grant SUMMARY: This notice amends the notice 20472, (202) 646–3772. Program.) of a major disaster for the State of Texas, SUPPLEMENTARY INFORMATION: Notice is James L. Witt, (FEMA–1287–DR), dated August 22, hereby given that, in a letter dated Director. 1999, and related determinations. August 16, 1999, the President declared [FR Doc. 99–23734 Filed 9–10–99; 8:45 am] a major disaster under the authority of BILLING CODE 6718±02±P EFFECTIVE DATE: August 30, 1999. the Robert T. Stafford Disaster Relief FOR FURTHER INFORMATION CONTACT: and Emergency Assistance Act (42 Madge Dale, Response and Recovery U.S.C. 5121 et seq.), as follows: FEDERAL EMERGENCY Directorate, Federal Emergency I have determined that the damage in MANAGEMENT AGENCY Management Agency, Washington, DC certain areas of the State of Utah, resulting [FEMA±1284±DR] 20472, (202) 646–3772. from a tornado, severe thunderstorms, and hail on August 11, 1999, is of sufficient SUPPLEMENTARY INFORMATION: The notice Wisconsin; Major Disaster and Related severity and magnitude to warrant a major Determinations of a major disaster for the State of Texas disaster declaration under the Robert T. is hereby amended to include the Stafford Disaster Relief and Emergency AGENCY: Federal Emergency Individual Assistance program for the Assistance Act, Pub. L. 93–288, as amended Management Agency (FEMA). (‘‘the Stafford Act’’). I, therefore, declare that following areas among those areas ACTION: Notice. determined to have been adversely such a major disaster exists in the State of affected by the catastrophe declared a Utah. SUMMARY: This is a notice of the major disaster by the President in his In order to provide Federal assistance, you Presidential declaration of a major are hereby authorized to allocate from funds disaster for the State of Wisconsin declaration of August 22, 1999: available for these purposes, such amounts as Arsansas, Brooks, Cameron, Duval, Jim you find necessary for Federal disaster (FEMA–1284–DR), dated August 16, Wells, Kenedy, Kleberg, Nueces, Webb, and assistance and administrative expenses. 1999, and related determinations. Willacy Counties for Individual Assistance You are authorized to provide Individual EFFECTIVE DATE: August 16, 1999. (already designated for debris removal and Assistance, Public Assistance, and Hazard FOR FURTHER INFORMATION CONTACT: emergency protective measures (Categories A Mitigation in the designated areas. Consistent Madge Dale, Response and Recovery and B) under the Public Assistance program). with the requirement that Federal assistance Directorate, Federal Emergency Hidalgo County for Individual Assistance. be supplemental, any Federal funds provided under the Stafford Act for Public Assistance Management Agency, Washington, DC (The following Catalog of Federal Domestic or Hazard Mitigation will be limited to 75 20472, (202) 646–3772. Assistance Numbers (CFDA) are to be used percent of the total eligible costs. SUPPLEMENTARY INFORMATION: Notice is for reporting and drawing funds: 83.537, Further, you are authorized to make hereby given that, in a letter dated Community Disaster Loans; 83.538, Cora changes to this declaration to the extent August 16, 1999, the President declared Brown Fund Program; 83.539, Crisis allowable under the Stafford Act. a major disaster under the authority of Counseling; 83.540, Disaster Legal Services the Robert T. Stafford Disaster Relief Program; 83.541, Disaster Unemployment The time period prescribed for the Assistance (DUA); 83.542, Fire Suppression implementation of section 310(a), and Emergency Assistance Act (42 Assistance; 83.543, Individual and Family Priority to Certain Applications for U.S.C. 5121 et seq.), as follows: Grant (IFG) Program; 83.544, Public Public Facility and Public Housing I have determined that the damage in Assistance Grants; 83.545, Disaster Housing Assistance, 42 U.S.C. 5153, shall be for certain areas of the State of Wisconsin,
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49495 resulting from severe storms, straight-line FEDERAL RESERVE SYSTEM continued to expand at a pace winds, and flooding beginning on July 4, somewhat above the middle of its range. 1999 and continuing through July 31, 1999, Federal Open Market Committee; The Federal Open Market Committee is of sufficient severity and magnitude to Domestic Policy Directive of June 29± seeks monetary and financial conditions warrant a major disaster declaration under 30, 1999. that will foster price stability and the Robert T. Stafford Disaster Relief and promote sustainable growth in output. Emergency Assistance Act, Pub. L. 93–288, as In accordance with § 271.5 of its rules In furtherance of these objectives, the amended (‘‘the Stafford Act’’). I, therefore, regarding availability of information (12 Committee reaffirmed at this meeting declare that such a major disaster exists in CFR part 271), there is set forth below the the ranges it had established in February the State of Wisconsin. domestic policy directive issued by the for growth of M2 and M3 of 1 to 5 In order to provide Federal assistance, you Federal Open Market Committee at its 1 percent and 2 to 6 percent respectively, are hereby authorized to allocate from funds meeting held on June 29±30, 1999. The measured from the fourth quarter of available for these purposes, such amounts as directive was issued to the Federal 1998 to the fourth quarter of 1999. The Reserve Bank of New York as follows: you find necessary for Federal disaster range for growth of total domestic assistance and administrative expenses. The information reviewed at this nonfinancial debt was maintained at 3 You are authorized to provide Public meeting suggests continued vigorous to 7 percent for the year. For 2000, the Assistance and Hazard Mitigation in the expansion in economic activity. Committee agreed on a tentative basis to designated areas and any other forms of Nonfarm payroll employment has set the same ranges for growth of the assistance under the Stafford Act you may increased at a relatively rapid pace in monetary aggregates and debt, measured deem appropriate. Consistent with the recent months and the civilian from the fourth quarter of 1999 to the requirement that Federal assistance be unemployment rate, at 4.2 percent in fourth quarter of 2000. The behavior of supplemental, any Federal funds provided May, matched its low for the year. the monetary aggregates will continue to under the Stafford Act for Public Assistance Manufacturing output rose substantially be evaluated in the light of progress or Hazard Mitigation will be limited to 75 toward price level stability, movements percent of the total eligible costs. further in May. Total retail sales Further, you are authorized to make increased briskly last month after in their velocities, and developments in changes to this declaration to the extent recording large gains on average earlier the economy and financial markets. allowable under the Stafford Act. in the year. Housing activity has To promote the Committee’s long-run remained robust in recent months. objectives of price stability and Notice is hereby given that pursuant Available indicators suggest that sustainable economic growth, the to the authority vested in the Director of business capital spending, especially for Committee in the immediate future the Federal Emergency Management information technology, has accelerated seeks conditions in reserve markets Agency under Executive Order 12148, I this spring. The nominal deficit on U.S. consistent with increasing the federal hereby appoint Thomas Davies of the trade in goods and services widened funds rate to an average of around 5 Federal Emergency Management Agency somewhat in April from its first-quarter percent. In view of the evidence to act as the Federal Coordinating average. Consumer price inflation was currently available, the Committee up somewhat on balance in April and Officer for this declared disaster. believes that prospective developments May, boosted by a sharp increase in are equally likely to warrant an increase I do hereby determine the following energy prices; improving productivity or a decrease in the federal funds rate areas of the State of Wisconsin to have has held down increases in unit labor operating objective during the been affected adversely by this declared costs despite very tight labor markets. intermeeting period. major disaster: Interest rates have risen somewhat By order of the Federal Open Market since the meeting on May 18, 1999. Key Ashland, Bayfield, Douglas, Florence, Iron, Committee, September 3, 1999. measures of share prices in equity Oneida, Price, Rusk, Sawyer, and Vilas Donald L. Kohn, Counties for Public Assistance. markets are unchanged to somewhat lower on balance over the intermeeting Secretary, Federal Open Market Committee. All counties within the State of period. In foreign exchange markets, the [FR Doc. 99–23690 Filed 9–10–99; 8:45 am] Wisconsin are eligible to apply for trade-weighted value of the dollar has BILLING CODE 6210±01±F assistance under the Hazard Mitigation changed little over the period in relation Grant Program. to the currencies of a broad group of important U.S. trading partners. DEPARTMENT OF HEALTH AND (The following Catalog of Federal Domestic After recording sizable increases in HUMAN SERVICES Assistance Numbers (CFDA) are to be used April, apparently owing to a tax-related for reporting and drawing funds: 83.537, buildup in liquid accounts, growth of Food and Drug Administration Community Disaster Loans; 83.538, Cora M2 and M3 slowed in May as tax [Docket No. 99F±3087] Brown Fund Program; 83.539, Crisis payments cleared and appears to have Counseling; 83.540, Disaster Legal Services remained moderate in June. For the year American Ingredients Co.; Filing of Program; 83.541, Disaster Unemployment through June, M2 is estimated to have Food Additive Petition Assistance (DUA); 83.542, Fire Suppression increased at a rate somewhat above the Assistance; 83.543, Individual and Family Committee’s annual range and M3 at a AGENCY: Food and Drug Administration, Grant (IFG) Program; 83.544, Public rate near the upper end of its range. HHS. Assistance Grants; 83.545, Disaster Housing Total domestic nonfinancial debt has ACTION: Notice. Program; 83.548, Hazard Mitigation Grant Program) SUMMARY: 1 Copies of the Minutes of the Federal Open The Food and Drug James L. Witt, Market Committee meeting of June 29–30, 1999, Administration (FDA) is announcing Director. which include the domestic policy directive issued that American Ingredients Co. has filed at that meeting, are available upon request to the [FR Doc. 99–23733 Filed 9–10–99; 8:45 am] a petition proposing that the food Board of Governors of the Federal Reserve System, additive regulations be amended to BILLING CODE 6718±02±PS4703 Washington, D.C. 20551. The minutes are published in the Federal Reserve Bulletin and in the Board’s provide for the safe use of sodium annual report. stearoyl lactylate as an emulsifier,
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49496 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices stabilizer, and texturizer in cream SUPPLEMENTARY INFORMATION: Under the DATES: General comments on agency liqueur drinks. Federal Food, Drug, and Cosmetic Act guidance documents are welcome at any FOR FURTHER INFORMATION CONTACT: (sec. 409(b)(5) (21 U.S.C. 348(b)(5))), time. Mary E. LaVecchia, Center for Food notice is given that a food additive ADDRESSES: Copies of this guidance for Safety and Applied Nutrition (HFS– petition (FAP 9B4691) has been filed by industry are available on the Internet at 215), Food and Drug Administration, Engelhard Corp., Pigments and http://www.fda.gov/cder/guidance/ 200 C St. SW., Washington, DC 20204, Additives Group, 3400 Bank St., index.htm or http://www.fda.gov/cber/ 202–418–3072. Louisville, KY 40212. The petition guidelines.htm. Submit written requests SUPPLEMENTARY INFORMATION: Under the proposes to amend the food additive for single copies of the guidance to the Federal Food, Drug, and Cosmetic Act regulations in § 178.3297 Colorants for Drug Information Branch (HFD–210), (sec. 409(b)(5) (21 U.S.C. 348(b)(5))), polymers (21 CFR 178.3297)to provide Center for Drug Evaluation and notice is given that a food additive for the safe use of 1-naphthelenesulfonic Research, Food and Drug petition (FAP 9A4684) has been filed by acid, 2-[(4,5-dihydro-3-methyl-5-oxo-1- Administration, 5600 Fishers Lane, American Ingredients Co., 3947 (3-Sulfopheny)-1H-pyrazol-4-yl)azo]- Rockville, MD 20857 or the Broadway, Kansas City, MO 64111. The ,strontium and calcium salt (1:1) (C.I. Manufacturers Assistance and petition proposes to amend the food Pigment 209 and C.I. Pigment 209:1) as Communication Staff (HFM–42), Center additive regulations in § 172.846 colorants for polymers intended for for Biologics Evaluation and Research, Sodium stearoyl lactylate (21 CFR food-contact applications. The agency Food and Drug Administration, 1401 has determined under 21 CFR 25.32(i) 172.846) to provide for the expanded Rockville Pike, Rockville, MD 20852– that this action is of a type that does not safe use of sodium stearoyl lactylate as 1448. Send one self-addressed adhesive individually or cumulatively have a an emulsifier, stabilizer, and texturizer label to assist that office in processing significant effect on the human in cream liqueur drinks. your requests. Submit written comments The agency has determined under 21 environment. Therefore, neither an on the guidance to the Dockets CFR 25.32(k) that this action is of a type environmental assessment nor an Management Branch (HFA–305), Food environmental impact statement is that does not individually or and Drug Administration, 5630 Fishers required. cumulatively have a significant effect on Lane, rm. 1061, Rockville, MD 20857. the human environment. Therefore, Dated: August 25, 1999 Comments are to be identified with the neither an environmental assessment Alan M. Rulis docket number found in brackets in the nor an environmental impact statement Director, Office of Premarket Approval, heading of this document. is required. Center for Food Safety and Nutrition FOR FURTHER INFORMATION CONTACT: Dated: August 31, 1999. [FR Doc. 99–23664 Filed 9–10–99; 8:45 am] Debbie J. Henderson, Center for Drug BILLING CODE 4160±01±F Evaluation and Research (HFD–6), Food Alan M. Rulis, and Drug Administration, 5600 Fishers Director, Office of Premarket Approval, Lane, Rockville, MD 20857, 301–594– Center for Food Safety and Applied Nutrition. DEPARTMENT OF HEALTH AND 6779. [FR Doc. 99–23682 Filed 9–10–99; 8:45 am] HUMAN SERVICES SUPPLEMENTARY INFORMATION: In the BILLING CODE 4160±01±F Federal Register of September 21, 1998 Food and Drug Administration (63 FR 50251), FDA announced the DEPARTMENT OF HEALTH AND [Docket No. 98D±0656] availability of a draft version of this HUMAN SERVICES guidance for industry entitled Guidance for Industry on Submission ‘‘Submission of Abbreviated Reports Food and Drug Administration of Abbreviated Reports and Synopses and Synopses in Support of Marketing in Support of Marketing Applications; Applications.’’ The agency has finalized [Docket No. 99F±2997] Availability that draft guidance after considering Engelhard Corp.; Filing of Food AGENCY: Food and Drug Administration, comments received on the draft version. Additive Petition HHS. Only few comments were received, and ACTION: Notice. minor changes were made to the draft AGENCY: Food and Drug Administration, version in an effort to make the HHS. SUMMARY: The Food and Drug document clearer. ACTION: Notice. Administration (FDA) is announcing the This guidance implements section availability of a guidance for industry 118 of the Modernization Act, ‘‘Data SUMMARY: The Food and Drug entitled ‘‘Submission of Abbreviated requirements for drugs and biologics,’’ Administration (FDA) is announcing Reports and Synopses in Support of which directs FDA to issue guidance on that Engelhard Corp. has filed a petition Marketing Applications.’’ This when abbreviated study reports may be proposing that the food additive guidance, which implements section submitted in new drug applications regulations be amended to provide for 118 of the Food and Drug (NDA’s) and biologics license the safe use of 1-naphthelenesulfonic Administration Modernization Act of applications (BLA’s) in lieu of full acid, 2-[(4,5-dihydro-3-methyl-5-oxo-1- 1997 (Modernization Act), is intended reports. Applicants have experienced (3-Sulfopheny)-1H-pyrazol-4-yl)azo]-, to assist applicants who wish to submit difficulties in the past in deciding when strontium and calcium salt (1:1) (C.I. abbreviated reports and synopses in lieu a full study report is required by the Pigment 209 and C.I. Pigment 209:1) as of full reports for certain clinical reviewing body. For example, clinical colorants for polymers intended for studies, both in marketing applications drug and biologic product development food-contact applications. for new products and in supplements to programs often include numerous FOR FURTHER INFORMATION CONTACT: approved applications. The guidance clinical studies and resulting data that Mark Hepp, Center for Food Safety and describes which studies may be are not intended to contribute to the Applied Nutrition, HFS–215, Food and submitted as abbreviated reports or evaluation of the effectiveness of a Drug Administration, 200 C St. SW., synopses and describes a format for product for a particular use and are not Washington, DC 20204, (202) 418–3098. such submissions. needed to support information included
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49497 in labeling. Accordingly, such studies Dated: August 19, 1999. grants from HHS; Total Number of may be submitted as abbreviated reports Margaret M. Dotzel, Respondents: 16,800; Frequency of or synopses, and this guidance is Acting Associate Commissioner for Policy. Response: quarterly; Average Burden intended to facilitate their submission. [FR Doc. 99–23663 Filed 9–10–99; 8:45 am] per Reponse: 4 hours; Estimated Annual This guidance is intended to provide BILLING CODE 4160±01±F Burden: 268,800 hours. guidance on the types of studies that Total Burden: 268,830 hours. may be submitted in abbreviated reports Send comments to Norman E. Prince, or synopses. The guidance also provides DEPARTMENT OF HEALTH AND Jr., Acting PSC Reports Clearance recommendations on the formats that HUMAN SERVICES Officer, Room 17A08, Parklawn should be used. Building, 5600 Fishers Lane, Rockville, Program Support Center; Agency MD 20857. Written comments should be In the Federal Register of September Information Collection Activities: received within 60 days of this notice. 21, 1998 (63 FR 50241), FDA announced Proposed Collections; Comment that it was submitting to the Office of Dated: September 3, 1999. Request Management and Budget (OMB) for Lynnda M. Regan, review and clearance under the The Department of Health and Human Director, Program Support Center. Paperwork Reduction Act of 1995 (PRA) Services, Program Support Center (PSC), [FR Doc. 99–23666 Filed 9–10–99; 8:45 am] the collection of information entitled will periodically publish summaries of BILLING CODE 4168±17±M ‘‘Application for FDA Approval to proposed information collection Market a New Drug—21 CFR Part 314— projects and solicit public comments in (OMB Control Number 0910–0001).’’ In compliance with the requirements of DEPARTMENT OF THE INTERIOR that notice, FDA stated that the draft Section 3506(c)(2)(A) of the Paperwork guidance entitled ‘‘Submission of Reduction Act of 1995. To request more Fish and Wildlife Service Abbreviated Reports and Synopses in information on the project or to obtain Support of Marketing Applications’’ (a a copy of the information collection Notice to Reopen the Public Comment notice announcing the availability of the plans and instruments, call the PSC Period for the Draft Recovery Plan for draft guidance was published in the Reports Clearance Officer on (301) 443– the Giant Garter Snake (Thamnophis same issue of the Federal Register) 2045. gigas) Comments are invited on: (a) Whether would reduce the industry burden for AGENCY: Fish and Wildlife Service, the proposed collection of information submitting marketing applications Interior. under § 314.56 (21 CFR 314.50). FDA is necessary for the proper performance ACTION: estimated that this reduction in burden of the functions of the agency, including Notice of reopening of public would be approximately 300 hours, and whether the information shall have comment period. practical utility; (b) the accuracy of the reduced the industry burden estimate SUMMARY: The U.S. Fish and Wildlife for § 314.50 accordingly. The Federal agency’s estimate of the burden of the Service gives notice that the comment Register notice also requested proposed collection of information; (c) period announced in the July 2, 1999 comments on the burden estimates for ways to enhance the quality, utility and (64 FR 36033), notice of availability of part 314 (21 CFR part 314). OMB clarity of the information to be the Draft Recovery Plan for the Giant received no comments on the notice and collected; and (d) ways to minimize the Garter Snake (Thamnophis gigas) will approved the information collection for burden of the collection of information be reopened for an additional 30 days. part 314 until November 30, 2001. In on respondents, including through the Substantial public interest in the draft addition, none of the comments use of automated collection techniques plan led the Service to distribute received in response to the notice or other forms of information additional copies and to provide announcing the availability of the draft technology. additional opportunities for the public 1. HHS Payment Management System guidance pertained to information to comment on the plan. This draft Forms (PSC–270, formerly PMS–270) collection issues under the PRA. recovery plan contains recovery criteria and (PSC–272, formerly PMS–272)— and actions for threatened giant garter This guidance represents the agency’s 0937–0200—Extension current thinking on submission of full The PSC–270 (formerly PMS–270), snake. Additional species of concern study reports, abbreviated reports, and Request for Advance or Reimbursement that will benefit from recovery actions synopses of information related to is used to make advances or taken for the giant garter snake are also effectiveness for new drugs and reimbursement payments to grantees. It discussed in the draft plan. The Service biological products. It does not create or serves in place of the SF–270. reopens the comment period and confer any rights for or on any person Respondents: State and local solicits review and comment from the and does not operate to bind FDA or the governments; profit and nonprofit public on this draft plan. public. An alternative approach may be businesses and organizations receiving DATE: Comments on the draft recovery used if such approach satisfies the grants for HHS; Total Number of plan received by October 13, 1999 will requirements of the applicable statutes, Respondents: 10; Frequency of be considered by the Service. regulations, or both. Response: monthly; Average Burden per ADDRESSES: Copies of the draft recovery Interested persons may submit written Response: 15 minutes; Estimated plan are available for inspection, by comments on the guidance to the Annual Burden: 30 hours. appointment, during normal business Dockets Management Branch (address The PSC–272 (formerly PMS–272), hours at the following location: U.S. above). Two copies of any comments are Federal Cash Transactions Report, is Fish and Wildlife Service, Sacramento to be submitted, except that individuals used to monitor Federal cash advances Fish and Wildlife Office, 2800 Cottage may submit one copy. The guidance and to grantees and obtain Federal cash Way, W–2605, Sacramento, California received comments are available for disbursement data. It serves in place of (telephone (916) 414–6600); and U.S. public examination in the Dockets the SF–272. Respondents: State and Fish and Wildlife Service, Regional Management Branch between 9 a.m. and local governments, profit and nonprofit Office, Ecological Services, 911 NE. 11th 4 p.m., Monday through Friday. businesses and institutions receiving Avenue, Eastside Federal Complex,
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Portland, Oregon 97232–4181 natural wetlands and now occupy a rehabilitation requirements, siting of oil (telephone (503) 231–2071). Requests variety of agricultural, managed, and and gas wells, clustering of wells to for copies of the draft recovery plan and natural wetlands including their reduce habitat disturbance and written comments and materials waterways and adjacent uplands. This fragmentation, and other mitigative regarding this plan should be addressed species is threatened by historic measures. to Wayne S. White, Field Supervisor, wetland habitat loss and resulting Alternatives identified at this time Ecological Services, at the above habitat fragmentation, and by include the proposed action and the no Sacramento address. continuing urban expansion. The action alternatives. Issues to be analyzed FOR FURTHER INFORMATION CONTACT: objective of this draft recovery plan is to include impacts on wildlife, minerals, Diane Elam, Fish and Wildlife Biologist, delist the giant garter snake through cultural resources and special status at the above Sacramento address. implementation of a variety of recovery plants and animals. Potential impacts SUPPLEMENTARY INFORMATION: measures including (1) habitat on Northern Ute tribal interests also will protection; (2) public participation, be considered. Background outreach and education; (3) habitat DATES: Public scoping comments Restoring endangered or threatened management and restoration; (4) relating to issues and potential animals and plants to the point where surveying and monitoring; and (5) additional alternatives will be accepted they are again secure, self-sustaining research. for 30 days following the publication members of their ecosystems is a Public Comments Solicited date of this notice. Comments must be primary goal of the Service’s submitted on or before October 13, The Service solicits written comments endangered species program. To help 1999. on the draft recovery plan described. All guide recovery efforts, the Service is ADDRESSES: Scoping comments should comments received by the date specified working to prepare recovery plans for be sent to Field Office Manager, Bureau above will be considered prior to most of the listed species native to the of Land Management, Vernal Field approval of this plan. United States. Recovery plans describe Office, 170 South 500 East, Vernal, Utah actions considered necessary for the Authority: The authority for this action is 84078, ATTN: Book Cliffs RMP conservation of the species, establish section 4(f) of the Endangered Species Act, Amendment for Oil and Gas Leasing criteria for downlisting or delisting 16 U.S.C. 1533(f). Categories on Crucial Deer Winter listed species, and estimate time and Dated: September 3, 1999. Range. cost for implementing the recovery Elizabeth H. Stevens, Comments, including names and measures needed. The Endangered Acting Manager, California/Nevada street addresses of respondents will be Species Act of 1973, as amended (16 Operations Office, Sacramento, California. available for public review at the BLM U.S.C. 1531 et seq.) (Act), requires the [FR Doc. 99–23510 Filed 9–10–99; 8:45 am] Vernal Field Office and will be subject development of recovery plans for listed BILLING CODE 4310±55±P to disclosure under the Freedom of species unless such a plan would not Information Act (FOIA). They may be promote the conservation of a particular published as part of the Environmental species. Section 4(f) of the Act as DEPARTMENT OF THE INTERIOR Assessment and other related documents. Individual respondents may amended in 1988 requires that public Bureau of Land Management notice and an opportunity for public request confidentiality. If you wish to review and comment be provided [UT080±09±1310±00] withhold your name or street address during recovery plan development. The from public review and disclosure Service will consider all information Intent To Prepare an Environmental under the FOIA, you must state this presented during the public comment Assessment for Amending the Book prominently at the beginning of your period prior to approval of each new or Cliffs Resource Management Plan, written comment. Such requests will be revised recovery plan. Substantive Utah honored to the extent allowed by law. technical comments will result in AGENCY: Bureau of Land Management, All submissions from organizations or changes to the plan. Substantive Interior. businesses, and from individuals identifying themselves as comments regarding recovery plan ACTION: Notice of Intent to prepare an representatives or officials of implementation may not necessarily environmental assessment for amending organizations or businesses, will be result in changes to the recovery plan, the Book Cliffs Resource Management made available for public inspection in but will be forwarded to appropriate Plan (RMP) by changing oil and gas their entirety. Federal or other entities so that they can leasing categories on crucial mule deer take these comments into account winter range. SUPPLEMENTARY INFORMATION: In 1992, during the course of implementing the Utah Division of Wildlife Resources, recovery actions. Individualized SUMMARY: Pursuant to section 102(2)(C) in consultation with BLM wildlife responses to comments will not be of the National Environmental Policy biologists updated big game habitat provided. Act of 1969, the Utah Bureau of Land delineations in the Book Cliffs. The The giant garter snake is an endemic Management, Vernal Field Office will be updated delineations were the result of species of wetlands in the Central writing an Environmental Assessment new and more detailed habitat Valley of California. Historically, giant (EA) on a proposed amendment to the information provided by field biologists. garter snakes were found in the Book Cliffs RMP that covers portions of Analysis of this new information Sacramento and San Joaquin Valleys Uintah County, Utah. The amendment permitted more accurate identification from the vicinity of Butte County would change the oil and gas leasing and expansion of the boundaries of southward to Buena Vista Lake, near category on 162,500 acres of crucial crucial mule deer winter range. Because Bakersfield in Kern County. Today, mule deer winter range from Category 1 mule deer crucial winter range has now populations of the giant garter snake are (Standard Stipulations) to Category 2 been identified in areas presently found in the Sacramento Valley and (Special stipulations) for protection of offered for oil and gas leasing without isolated portions of the San Joaquin mule deer. Protective measures would protective measures for mule deer, a Valley. They historically inhabited include seasonal restrictions, plan amendment is being considered.
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FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR Duane De Paepe (435) 781–4403 or e- mail: [email protected]. Bureau of Land Management Bureau of Land Management Dated: September 1, 1999. [WY±090±5700±77; WYW±6360 and WYW± Linda S. Colville, [MT±930±1820±00] 145402] Acting State Director. Realignment of the BLM Office in Great Notices of Realty Action: Recreation [FR Doc. 99–23679 Filed 9–10–99; 8:45 am] Falls and Public Purposes (R&PP) Act BILLING CODE 4310±DQ±P Classification in Lincoln County, WY AGENCY: Bureau of Land Management, (WYW±6360); and Federal Land DEPARTMENT OF THE INTERIOR DOI. Management Policy and Management Act (FLPMA) Direct Sale of Public ACTION: None. Bureau of Land Management Lands in Lincoln County, WY (WYW± 145402) [MT±020±1010±00] SUMMARY: This notice provides information about the decision to AGENCY: Bureau of Land Management, Notice of Meeting change the Great Falls Field Office to an Interior. AGENCY: Bureau of Land Management Oil and Gas Field Station. This change ACTION: Notice. (BLM), Montana, Billings and Miles City became effective on August 1, 1999. SUMMARY: Field Offices, Interior. This Notice covers two The Great Falls Field Office is Removed separate but related realty actions. The ACTION: Notice of Meeting. From the Organization Structure first action is to amend the existing SUMMARY: The Eastern Montana R&PP classification to include the Resource Advisory Council will have a The Great Falls Field Office has been disposal of land currently leased to meeting October 13, 1999 at the Mon- converted to an oil and gas field station Lincoln County for sanitary landfill Dak Heritage Center, 120 Third Ave. SE, reporting to the Montana State Office, lease (WYW–6360). The following Sidney, Montana starting at 8:00 a.m. Division of Resources, Branch of Fluid public lands in Lincoln County, Agenda topics include Bureau of Minerals, in Billings, Montana. This Wyoming are suitable for classification Reclamation transfer of parcels along realignment will provide more efficient for conveyance under the Recreation the Yellowstone River, and continued utilization of existing staff among the and Public Purposes Act, as amended, discussion on access, and the draft off- affected offices. (43 U.S.C. 869 et seq.). highway vehicle environmental impact Other Programs Realigned Sixth Principal Meridian, Lincoln County, statement. Wyoming The meeting is open to the public and Responsibility for all other programs, T. 24 N., R. 119 W., the public comment period is set for other than oil and gas, has been Sec. 4, Lot 48, Lot 47 of Tract 91. 11:00 a.m. on October 13. The public reassigned to the Lewistown Field may make oral statements before the The above land contains 40 acres. Office and its Havre Field Station. The Council or file written statements for the The second action is the direct Council to consider. Depending on the Lewistown Field Office will assume FLPMA sale of public land (WYW– number of persons wishing to make an responsibility for program activities in 145402), which is adjacent to the public oral statement, a per person time limit Pondera, Teton, Lewis and Clark (north lands involved in the R&PP lease. The may be established. Summary minutes of 46 degrees), Cascade, and Meagher Bureau of Land Management has of the meeting will be available for counties. The Havre Field Station will determined that the lands described public inspection and copying during assume responsibility for activities in below are suitable for direct sale under regular business hours. Liberty, Glacier and Toole counties. section 203 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. FOR FURTHER INFORMATION CONTACT: Oil and Gas Field Station Management Marilyn Krause, Public Affairs 1713: Specialist, Miles City Field Office, 111 A supervisory position will be Sixth Principal Meridian, Lincoln County, Garryowen Road, Miles City, Montana established in the OIL AND GAS FIELD Wyoming 59301, telephone (406) 233–2831. STATION. The supervisor will report to T. 24 N., R. 119 W., SUPPLEMENTARY INFORMATION: The the Montana State Office, Division of Lots 2, 3, 6, and 46 of Tract 91, purpose of the Council is to advise the Resources, Branch of Fluid Minerals, in Lot 45 of Tract 94, Secretary of the Interior, through the Billings, Montana. Lots 1 and 4 of Section 9. BLM, on a variety of planning and The above land contains 93.78 acres. management issues associated with FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: public land management. The 15 Janet Singer, Deputy State Director, Division of Support Services, 5001 Mark Hatchel, Realty Specialist, member Council includes individuals Kemmerer Field Office, 312 Highway who have expertise, education, training Southgate Drive, P.O. Box 36800, Billings, Montana 59107. 189 North, Kemmerer, Wyoming, 83101, or practical experience in the planning (307) 828–4507. and management of public lands and Dated: September 1, 1999. SUPPLEMENTARY INFORMATION (WYW± their resources and who have a Larry E. Hamilton. knowledge of the geographical 6360): The lands are not needed for jurisdiction of the Council. State Director, Montana State Office. Federal purposes. The conveyance of [FR Doc. 99–23672 Filed 9–10–99; 8:45 am] these lands to Lincoln County for Dated: September 1, 1999. BILLING CODE 4310±DN±P sanitary landfill purposes is consistent Timothy M. Murphy, with the Kemmerer Resource Miles City Field Manager Management Plan and would be in the [FR Doc. 99–23671 Filed 9–10–99; 8:45 am] public interest. The planning document BILLING CODE 4310±DN±P and environmental assessment covering
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49500 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices the proposed sale are available for excavation is conducted subject to the Bureau of Land Management, review at the Bureau of Land applicable State and Federal Kemmerer Field Office, Kemmerer, Management, Kemmerer Field Office, requirements. Wyoming. Conveyance of the above Kemmerer, Wyoming. The R&PP patent 8. No portion of the land covered by public lands will be subject to: (WYW–6360) when issued, will be such patent shall under any 1. Reservation of a right-of-way to the subject to the following terms, circumstances revert to the United United States for ditches and canals conditions, covenants, and reservations: States. pursuant to the Act of August 30, 1890, 1. Provisions of the Recreation and Conveyance of these lands to Lincoln 43 U.S.C. 945. Public Purposes Act and to all County is consistent with applicable 2. Reservation of all minerals applicable regulations of the Secretary Federal and county land use plans and pursuant to section 209(a) of the Federal of the Interior. will help meet the needs of Lincoln Land Policy and Management Act of 2. A right-of-way to the United States County residents for solid waste 1976, 43 U.S.C. 1719. for ditches and canals pursuant to the disposal. Persons wishing to obtain Upon publication of this notice in the Act of August 30, 1890 (43 U.S.C. 945). detailed information on either of these Federal Register, the FLPMA sale land 3. All minerals shall be reserved to actions may contact or write the Field will be segregated from all forms of the United States, together with the Manager, Kemmerer Field Office, 312 appropriation under the public land right to prospect for, mine, and remove Highway 189 North, Kemmerer, laws, including the general mining laws, such minerals from the same under Wyoming, 83101, (307) 828–4502. except for leasing under the mineral applicable law and such regulations as Until October 28, 1999, interested leasing laws. the Secretary of the Interior may parties may submit comments regarding Until October 28, 1999, interested prescribe. the proposed conveyance or parties may submit comments to the 4. The patentee shall comply with all classification of the land to the Field Field Manager, Kemmerer Field Office, Federal and State laws applicable to the Manager, Bureau of Land Management, Bureau of Land Management, 312 Hwy. disposal, placement, or release of 312 Highway 189 North, Kemmerer, 189 North, Kemmerer, WY. hazardous substances. Wyoming, 83101. Dated: August 12, 1999. 5. Lincoln County, its successors or assign, assumes all liability for and shall Classification Comments Jeff Rawson, defend, indemnify, and save harmless Interested parties may submit Field Manager. the United States and its officers, agents, comments involving the request to [FR Doc. 99–23745 Filed 9–10–99; 8:45 am] representatives, and employees amend the classification to include BILLING CODE 4310±22±P (hereinafter referred to in this clause as conveyance. Comments on the the United States), from all claims, loss, classification are restricted to whether damage, actions, causes of action, the conveyance will maximize the DEPARTMENT OF THE INTERIOR expense, and liability (hereinafter future uses of the land, whether the use National Park Service referred to in this clause as claims) is consistent with local planning and resulting from, brought for, or on zoning or if the use is consistent with Request for Reinstatement and account of, any personal injury, threat of State and Federal programs. Revision of a Previously Approved personal injury, or property damage Application Comments Information Collection received or sustained by any person or persons (including the patentee’s Interested parties may submit AGENCY: National Park Service, Interior. employees) or property growing out of, comments regarding the specific use ACTION: Notice of Request for occurring, or attributable directly or proposed in the application for Reinstatement and Revision of a indirectly, to the disposal of solid waste conveyance and plan of development, Previously Approved Information on, or the release of hazardous whether the BLM followed proper Collection. substances from these patented lands, administrative procedures in reaching SUMMARY: In accordance with the regardless of whether such claims shall the decision, or any other factor not Paperwork Reduction Act of 1995, this be attributable to: (1) The concurrent, directly related to the suitability of the notice announces the National Park contributory, or partial fault, failure, or land for a sanitary landfill. Service’s intention to request a negligence of the United States, or (2) Any adverse comments will be reinstatement for and revision to a the sole fault, failure, or negligence of reviewed by the State Director. In the previously approved information the United States. absence of any adverse comments, the 6. Existing rights of record including classification will become effective collection in support of its Concessions a right-of-way WYW–76620 to All West November 12, 1999. Management Program based on re- Communications for an access road. SUPPLEMENTARY INFORMATION (WYW± estimates. 7. The above described land has been 145402): The existing landfill is being DATES: Comments on this notice must be used for solid waste disposal. Solid utilized by Lincoln County and is near received no later than November 12, waste commonly includes small capacity, resulting in the need for an 1999 to be assured of consideration. quantities of commercial hazardous expansion landfill area. The expansion FOR FURTHER INFORMATION CONTACT: waste and household hazardous waste lands are expected to provide an Contact Cynthia Orlando, Program as determined in the Resource additional 50+ years of operation. The Manager, Concessions Program Conservation and Recovery Act of 1976, proposed sale is consistent with the Division, National Park Service, 1849 C as amended (42 U.S.C. 6901), and Kemmerer Resource Area Management Street, NW., Washington, DC 20240 or defined in 40 CFR 261.4 and 261.5. Plan and would serve important public call (202) 565–1210. Although there is no indication these objectives which cannot be achieved SUPPLEMENTARY INFORMATION: materials pose any significant risk to prudently or feasibly elsewhere. The Title: Concessioner Annual Financial human health or the environment, lands contain no other known public Reports, 10–356 and 10–356A. future land uses should be limited to values. The planning document and OMB Number: 1024–0029. those which do not penetrate the liner environmental assessment covering the Expiration Date of Approval: or final cover of the landfill unless proposed sale are available for review at December 31, 1995.
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Type of Request: Reinstatement and or any other aspect of this collection of SUPPLEMENTARY INFORMATION: Requests revision of a previously approved information to Cynthia Orlando, for copies of the FONSI, or for any information collection. Program Manager, Concessions Program additional information, should be Abstract: The National Park Service Division, National Park Service, 1849 C directed to Superintendent Kate Miller, (NPS) authorizes private businesses Street, NW., Room 7313, Washington, Effigy Mounds National Monument, 151 known as concessioners to provide DC 20240. Highway 76, Harpers Ferry, Iowa 52146, necessary and appropriate visitor All responses to this notice will be Telephone: 319–873–3491. Comments facilities and services in areas of the summarized and included in the request on the FONSI may be sent to National Park Systems. The for OMB approval. All comments will Superintendent Miller at this address or concessioner Annual Financial Report also become a matter of public record. at e-mail: l (Forms 10–356 and 10–356A) provides Dated: September 1, 1999. efmo [email protected] concessioner financial information to Linda Canzanelli, Dated: September 2, 1999. the NPS as required by each concession Acting Associate Director, Park Operations Catherine A. Damon, contract. This information is necessary and Education. Acting Regional Director, Midwest Region. to comply with requirements placed on [FR Doc. 99–23766 Filed 9–10–99; 8:45 am] [FR Doc. 99–23764 Filed 9–10–99; 8:45 am] the NPS by the Congress. Public Law 105–391 requires that the BILLING CODE 4310±70±M BILLING CODE 4310±70±P NPS exercise its authority in a manner consistent with a reasonable DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR opportunity for a concessioner to realize a profit on its operation as a whole National Park Service National Park Service commensurate with the capital invested and the obligations assumed. It also Effigy Mounds National Monument Final Environmental Impact Statement requires that franchise fees be for General Management Plan; AGENCY: National Park Service, Interior. determined with consideration to both Whiskeytown Unit, Whiskeytown- ACTION: gross receipts and capital invested. The Notice of availability of a Shasta-Trinity National Recreation financial information collected is Finding of No Significant Impact Area; Notice of Availability (FONSI) for the Environmental necessary to provide insight into and SUMMARY: Pursuant to Section 102(2)(c) knowledge of the concessioner’s Assessment of the General Management Plan Amendment and Boundaries of the National Environmental Policy operation so that this authority can be Act of 1969 (Pub.L. 91–190 as exercised appropriately and franchise Study, Effigy Mounds National Monument, Iowa. amended), the National Park Service, fees determined in a timely manner Department of the Interior, has prepared without undue burden on the SUMMARY: Pursuant to the Council of a final environmental impact statement concessioner. Environmental Quality regulations and assessing the potential impacts of the Estimate of Burden National Park Service (NPS) policy, the proposed General Management Plan for NPS prepared and made available for a Whiskeytown Unit, Whiskeytown- Gross Receipts 30-day public review a general Shasta-Trinity National Recreation Area, Under $250,000: approximately 4 management plan amendment/ Shasta County, California. Once hours per response. boundaries study and an environmental approved, the plan will guide the Over $250,000: approximately 16 assessment (EA) for Effigy Mounds management of the unit over the next 15 hours per response. National Monument, Iowa. During the years. review period, the NPS held public PROPOSED ACTION AND ALTERNATIVES: Estimated Number of Respondents meetings to discuss the document. The final General Management Plan and Gross Receipts After the end of the 30-day public Environmental Impact Statement availability period, the NPS selected the presents a proposal and three Under $250,000—419 respondents. preferred alternative as described in the alternatives for the management, use, Over $250,000—181 respondents. document, and determined that and development of Whiskeytown Unit. Estimated Number of Responses per implementation of the preferred The proposed general management plan Respondent: One. alternative will not cause a significant includes provisions for preserving Estimated Total Annual Burden on environmental impact. In making that significant natural and cultural Respondents selection and determination, the NPS resources and for restoring the considered the information and analysis backcountry to more natural conditions Gross Receipts contained in the EA and the comments through watershed restoration activities. Under $250,000—approximately received during the public review The plan provides for increasing the 1.676 hours. period. The NPS has prepared a Finding range and depth of interpretive services, Over $250,000—approximately 2,896 of No Significant Impact (FONSI) for the expands opportunities for backcountry hours. project. use, and manages recreation at Sample copies of this information Because the GMP amendment/ Whiskeytown Lake to provide collection can be obtained from Cynthia boundaries study is closely similar to opportunities for tranquil recreation Orlando, Program Manager, Concessions projects for which the NPS would experiences. To facilitate more tranquil Program Division, 1849 C Street, NW., normally require an environmental experience, the use of personal Room 7313, Washington, DC 20240 at impact statement, the NPS will make watercraft at the reservoir is (202) 565–1210. the FONSI available for a 30-day public discontinued and enforcement of Send comments regarding the review before implementation of the existing noise standards is increased. accuracy of the burden estimate, ways to amendment/boundaries study begins. Alternative A: No Action, would minimize the burden, including the use DATES: The public review period for continue the current situation at of automated collection techniques or comment on the FONSI will end Whiskeytown. Management focus other forms of information technology, October 13, 1999. would remain on the lake and natural
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49502 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices and cultural resource values would Environmental Protection Agency’s initiate recovery of the island’s natural continue to decline because of the lack notification of the filing of the communities. Of special concern is the of human and financial resources for document is published in the Federal pressing need to address alternative their management and protection. Register. Subsequently, the National methods for removal of feral pigs (Sus Alternative B: Minimum Park Service will publish a notice of the scrofa) and control of fennel Requirements, would be similar to Record of Decision in the Federal (Foeniculum vulgare), an invasive alien Alternative C in terms of provisions for Register. The official responsible for the plant species. Based upon scientific resource management and protection, decision is the Regional Director, Pacific review, at this time it is anticipated that but would provide fewer visitor West Region; the official responsible for bringing management and control efforts services. The visitor service emphasis implementation is the Superintendent, to bear primarily upon these two species would continue to be focused on the Whiskeytown Unit. would facilitate the restoration of many lake and on safety and visitor Dated: September 1, 1999. other native ecosystem components. protection, with only limited John J. Reynolds, The fennel and feral pig initiatives will commitments to interpretation. The be implemented in collaboration with Regional Director, Pacific West Region. existing range of recreation uses, The Nature Conservancy, Santa Cruz including the use of personal watercraft, [FR Doc. 99–23763 Filed 9–10–99; 8:45 am] Island Preserve. BILLING CODE 4310±70±P would continue. SCOPING: The NPS is hereby initiating Alternative D: Expanded Recreation, the scoping phase with a request for retains the current management focus DEPARTMENT OF THE INTERIOR comments and information from on active water-based recreation, and interested individuals, organizations, increases the capacity of the lake to National Park Service and agencies. Responses are accommodate use by adding a major encouraged, and may address current new developed area near the mouth of Primary Restoration Plan for Santa issues and concerns, relevant research, Boulder Creek. Major new utility Cruz Island, Channel Islands National immediate management options, infrastructure would be required to Park, Santa Barbara County, mitigation strategies, future direction for support this development, and South California; Notice of Intent To Prepare recovery efforts, and other factors Shore Drive would be widened, an Environmental Impact Statement relevant to a comprehensive restoration realigned, and paved to provide access. planning process. Written comments The existing spectrum of recreation uses SUMMARY: Pursuant to § 102(2)(c) of the National Environmental Policy Act of must be postmarked not later than on the lake, including use of personal November 30, 1999, and should be watercraft, would be retained. However, 1969 (Pub. L. 91–190) and Council on Environmental Quality regulations (40 directed to the Superintendent, Channel a zoning plan would separate the Islands National Park, 1901 Spinnaker reservoir into a low-speed zone, where CFR 1508.22), the National Park Service intends to prepare an Environmental Dr., Ventura, CA 93001. In addition, personal watercraft use would be public scoping sessions are scheduled discouraged, and an unrestricted zone Impact Statement for a Primary Restoration Plan that focused on for October 20 (Ventura) and October 27 where all types of activities would be (Santa Barbara). Details as to time and accommodated. removing non-native species from Santa Cruz Island, Channel Islands National location will be announced via local Background Park, California. During the ensuing and regional press releases, notices The Draft EIS/GMP was released for a conservation planning-environmental distributed to area libraries, and direct 75-day public review ending November analysis process, comprehensive mailings. 30, 1998. Altogether nine public management alternatives will be SUPPLEMENTARY INFORMATION: Periodic meetings were held in local developed which will address recovery information updates about various communities. Both the Draft and Final of the island’s natural communities. aspects of the restoration planning documents evaluate the same Proposed Throughout the restoration planning process will be distributed via direct Action and Alternatives. The process will be conducted in mailings, the park’s website (http:// environmental consequences of the consultation with affected federal www.nps.gov/chis/naturalresources/ alternatives are fully documented in the agencies, State and local governments, restoration.html), and regional and local Final EIS. No significant adverse tribal groups, and interested news media. To request placement on impacts are foreseen from the three organizations and individuals. the PRP/EIS mailing list, interested Action Alternatives, because the plans BACKGROUND: The National Park Service parties may contact Mr. Steve Ortega, include provisions to avoid or mitigate completed a General Management Plan Restoration Biologist, at (805) 658–5784 potentially significant impacts. (GMP) and Environmental Impact or [email protected]. However, the No-Action Alternative Statement for Channel Islands National REVIEW AND DECISION PROCESS: The Draft would result in significant long-term Park in 1985. The park’s Resources PRP/EIS is anticipated to be available impacts to natural and cultural Management Plan was approved in 1994 for public review and comment during resources due to insufficient (and last updated in 1998). Both winter-spring, 1999–2000. Availability management and protection. documents set clear direction and of the Draft document for review and SUPPLEMENTARY INFORMATION: Written priorities for responding to invasive written comment will be announced by comments or questions regarding the species. This focused restoration formal Notice in the Federal Register, final general management plan and planning effort is intended to expand through local and regional news media, environmental impact statement should and refine that management direction, the internet, and direct mailing. At this be directed to the Superintendent, with the focused objective of preparing time it is anticipated that the Final PRP/ Whiskeytown NRA, PO Box 188, a Primary Restoration Plan and EIS will be completed during October, Whiskeytown, California 96095. Copies Environmental Impact Statement (PRP/ 2000. Subsequently, notice of an may be requested by contacting the EIS) specific to Santa Cruz Island. The approved Record of Decision would be Superintendent at (530) 241–6584. The PRP/EIS will identify, analyze, and published in the Federal Register not no-action period for the FEIS/GMP will select the immediate, critical sooner than thirty (30) days after the extend for thirty days after the management actions necessary to Final document is distributed. This is
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49503 expected to occur by December, 2000. backcountry management program, will honor to the extent allowable by The official responsible for the decision coordination with other land law. There also may be circumstances in is the Regional Director, Pacific West management agencies, research and which we would withhold from the Region, National Park Service; the other scientific uses, motorized uses administrative record a respondent’s official responsible for implementation including snowmachine and aircraft identity, as allowable by law. If you is the Superintendent, Channel Islands use, and fire management. wish us to withhold your name and/or National Park. The proposed action in the address, you must state this Dated: August 31, 1999. management plan and EIS will include prominently at the beginning of your guidelines for the types and levels of a John J. Reynolds, comment. However, we will not variety of backcountry uses and outline consider anonymous comments. We Regional Director, Pacific West Region. methods for resource protection. The will make all submissions from [FR Doc. 99–23765 Filed 9–10–99; 8:45 am] proposal will allocate visitor use of the organizations or businesses, and from BILLING CODE 4310±70±P backcountry to prevent user conflicts individuals identifying themselves as and to continue providing for high representatives or officials of quality visitor experiences and diverse organizations or businesses, available opportunities. The proposed action will DEPARTMENT OF THE INTERIOR for public inspection in their entirety. include zoning to provide for a The EIS is being prepared in National Park Service spectrum of visitor opportunities accordance with the requirements of the ranging from motorized use areas to National Environmental Policy Act of Notice of Intent to Prepare an ‘‘quiet zones’’ where motorized uses 1969, as amended (42 U.S.C. 4331 et Environmental Impact Statement to would be prohibited. This will address seq.) and its implementing regulations Amend the General Management Plan visitor and management concerns about at 40 CFR part 1500. the existing conditions in which user for the Backcountry of Denali National FOR FURTHER INFORMATION CONTACT: Park and Preserve conflicts occur. Possible alternatives in the EIS will Stephen P. Martin, Superintendent, AGENCY: National Park Service, Interior. propose variations in the types and Denali National Park and Preserve, PO ACTION: General Management Plan levels of backcountry uses. One Box 9, Denali Park, Alaska 99755. Amendment and Environmental Impact alternative to the proposed action will Telephone (907) 683–2294. Statement, Denali National Park and be to provide for expanded uses similar Dated: September 1, 1999. Preserve, Alaska. to the level and types of uses in national John Quinley, parks in the lower 48. A second Acting Regional Director, Alaska. SUMMARY: The National Park Service alternative will limit recreational and [FR Doc. 99–23762 Filed 9–10–99; 8:45 am] (NPS) is preparing an amendment to the other backcountry uses so that Denali general management plan, a National Park and Preserve would be BILLING CODE 4310±70±P backcountry management plan and an more comparable to other large national accompanying environmental impact parks in Alaska with less visitor use. A DEPARTMENT OF THE INTERIOR statement (EIS) for Denali National Park no action alternative will also be and Preserve. The purpose of the included. National Park Service management plan and EIS is to The NPS is seeking ideas on possible formulate a comprehensive plan for the alternatives. The NPS will hold open Availability of Plan of Operations and backcountry, including designated house scoping sessions in fall 1999 in Environmental Assessment for wilderness, of Denali National Park and Fairbanks, the Denali National Park Continuing Operations of 6 Gas Wells; Preserve that will provide management area, Talkeetna/Trapper Creek, and Pantera Energy Company, (Lake direction over the next 15–20 years. Anchorage. Specific dates, times, and Meredith National Recreation Area), This new management plan will amend locations of these scoping sessions will Hutchinson County, TX the 1986 General Management Plan for be announced in area newspapers. The the backcountry of Denali National Park NPS will continue to meet with other Notice is hereby given in accordance and Preserve. The backcountry of Denali government agencies, organizations, and with Section 9.52(b) of Title 36 of the National Park and Preserve is defined to the public for information sharing. Code of Federal Regulations that the include all of the park except for those The draft management plan/EIS is National Park Service has received from areas designated specifically for anticipated to be available for public Pantera Energy Company a Plan of development in the entrance area and review in late summer 2000. Public Operations for the continuing along the road corridor. Many issues to meetings will be scheduled in the operations of 6 gas wells within Lake be addressed in the backcountry Denali National Park/Healy area, the Meredith National Recreation Area, management plan would affect the Talkeetna/Trapper Creek area, Hutchinson County, Texas. entire park, including developed areas. Fairbanks, and Anchorage, Alaska, after The Plan of Operation and The NPS has initiated this management release of the draft management plan/ Environmental Assessment are available plan and EIS to address the rapidly EIS. The final EIS is expected to be for public review and comment for a growing level and diversity of uses, released during summer 2001. period of 30 days from the publication resource management needs, and the Interested groups, organizations, date of this notice in the Office of the anticipated demand for future uses not individuals and government agencies Superintendent, Lake Meredith National foreseen or addressed in the 1986 are invited to comment on the plan. Our Recreation Area/Alibates Flint Quarries General Management Plan. practice is to make comments, including National Monument, 419 East Primary issues that the management names and home addresses of Broadway, Fritch, TX. Copies are plan and EIS will address are types and respondents, available for public review available from the Superintendent, Lake levels of visitor use, the visitor during regular business hours. Meredith National Recreation Area/ experience, resource protection, Individual respondents may request that Alibates Flint Quarries National subsistence use, facility development we withhold their home address from Monument, Post Office Box 1460, and maintenance, administration of the the administrative record, which we Fritch, Texas 79036 and will be sent
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Kliegle Garage, Lots 1 and 2 of the Original Notice of Inventory Completion for [FR Doc. 99–23761 Filed 9–10–99; 8:45 am] Townsite of Goodwin, Goodwin, 99001213 Native American Human Remains and BILLING CODE 4310±70±P Turner County Associated Funerary Objects from Custer County, SD in the Possession South Dakota Department of Transportation of the South Dakota State DEPARTMENT OF THE INTERIOR Bridge No. 63–197–130 (Historic Bridges in Archaeological Research Center, South Dakota MPS), Local Rd. over E Fork National Park Service of Vermillion R., Davis vicinity, 99001210 Rapid City, SD South Dakota Department of Transportation AGENCY: National Park Service, Interior. National Register of Historic Places; Bridge No. 63–177–160 (Historic Bridges in ACTION: Notification of Pending Nominations South Dakota MPS), Local Rd. over Turkey Notice. Nominations for the following Ridge Creek, Hurley vicinity, 99001211 Notice is hereby given in accordance properties being considered for listing South Dakota Department of Transportation with provisions of the Native American in the National Register were received Bridge No. 63–198–181 (Historic Bridges in Graves Protection and Repatriation Act South Dakota MPS), Local Rd. over East by the National Park Service before (NAGPRA), 43 CFR 10.9, of the Fork of Vermillion R., Davis vicinity, September 4, 1999. Pursuant to § 60.13 99001212 completion of an inventory of human of 36 CFR part 60 written comments South Dakota Department of Transportation remains and associated funerary objects concerning the significance of these Bridge No. 63–186–020 (Historic Bridges in from Custer County, SD in the properties under the National Register South Dakota MPS), Local Rd. over Long possession of the South Dakota State criteria for evaluation may be forwarded Creek, Parker vicinity, 99001214 Archaeological Research Center, Rapid to the National Register, National Park South Dakota Department of Transportation City, SD. Service, 1849 C St. NW, NC400, Bridge No. 63–132–040 (Historic Bridges in A detailed assessment of the human Washington, DC 20240. Written South Dakota MPS), Local Rd. over remains was made by South Dakota comments should be submitted by unnamed stream, Parker vicinity, 99001215 State Archaeological Research Center September 28, 1999. South Dakota Department of Transportation (SARC) professional staff in Carol D. Shull, Bridge No. 63–210–282 (Historic Bridges in consultation with representatives of the Keeper of the National Register. South Dakota MPS), Local Rd. over east Three Affiliated Tribes of the Fort Fork of Vermillion R., Centerville vicinity, Berthold Reservation and the Pawnee FLORIDA 99001216 Indian Tribe of Oklahoma. Charlotte County South Dakota Department of Transportation Between 1935 and 1950, human El Jobean Hotel, 4381 Garden Rd., El Jobean, Bridge No. 63–052–030 (Historic Bridges in remains representing three individuals 99001203 South Dakota MPS), Local Rd. over West were recovered from the Phelps site Fork of Vermillion R., Marion vicinity, (39CU206) located on the left bank of Putnam County 99001217 Battle Creek, Custer County, SD by Mrs. Bostwick School, 125 Tillman St., Bostwick, 99001204 WASHINGTON Phelps, the private landowner of the Mason County site. No known individuals were IOWA identified. The seven associated Big Creek Archeological Site—45MS100, Appanoose County funerary objects include one Address Restricted, Hoodsport vicinity, unidentifiable mammal rib, two cedar Second Baptist Church (Centerville MPS), 99001219 422 S. 18th St., Centerville, 99001223 fragments, one limestone bead, charcoal, WISCONSIN one stone biface, and one stone uniface. Dubuque County Based on the associated funerary Ozaukee County Basilica of St. Francis Xavier, Church and objects and the manner of interment, Rectory, 114 2nd St. SW, Dyersville, Port Washington Light Station, 311 E. these individuals have been identified 99001205 Johnson St., Port Washington, 99001222 St. Boniface of New Vienna Historic District, as Native American. The associated 7401 Columbus St., New Vienna, 99001207 Walworth County funerary objects, manner of interment, and the remainder of the artifact Keokuk County Horticultural Hall, 330 Broad St., Lake Geneva, 99001220 assemblage from the site, including Irwin, John N. and Mary L. (Rankin), House, side-notched projectile points, 633 Grand Ave., Keokuk, 99001206 WYOMING freshwater shells, large bifaces, and MISSOURI Carbon County ceramics, indicate the burials date to the Upper Republican Aspect of the Central Lafayette County Downtown Rawlins Historic District (Boundary Increase), Roughly along 5th St., Plains Tradition (1000-1500 A.D.). Stramcke, Thomas Talbot and Rebecca Based on continuities of material Walton Smithers, House, 15834 Highway from W. Spruce to W. Cedar, Rawlins, O, Lexington vicinity, 99001208 99001221 culture, architecture, skeletal morphology, oral tradition, and NEW YORK A request for Removal has been made for the following resource: historical evidence, the cultural Dutchess County affiliation of the Phelps site and the KANSAS Mumford, Lewis, House, 187 Leedsville Rd., individuals listed above can be affiliated Amenia, 99001209 Reno County with the Arikara. In 1870, the Mandan, Hidatsa, and Arikara tribes were moved Plevna General Store, 3rd and Main, Plevna, SOUTH DAKOTA to the Fort Berthold Indian Reservation 88002968 Clay County in North Dakota and are now known as South Dakota Department of Transportation [FR Doc. 99–23767 Filed 9–10–99; 8:45 am] the Three Affiliated Tribes of the Fort Bridge No. 14–120–222 (Historic Bridges in BILLING CODE 4310±70±P Berthold Reservation.
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Based on the above mentioned (NAGPRA), 43 CFR 10.9, of the [email protected] before information, officials of the South completion of an inventory of human October 13, 1999. Repatriation of the Dakota State Archaeological Research remains and associated funerary objects human remains and associated funerary Center have determined that, pursuant from Wisconsin in the possession of the objects to the Ho-Chunk Nation of to 43 CFR 10.2 (d)(1), the human State Historical Society of Wisconsin, Wisconsin may begin after that date if remains listed above represent the Madison, WI. no additional claimants come forward. physical remains of three individuals of A detailed assessment of the human Dated: August 24, 1999. Native American ancestry. Officials of remains was made by State Historical Francis P. McManamon, Society of Wisconsin professional staff the South Dakota State Archaeological Departmental Consulting Archeologist, in consultation with representatives of Research Center have also determined Manager, Archeology and Ethnography that, pursuant to 43 CFR 10.2 (d)(2), the the Ho-Chunk Nation of Wisconsin. In 1966, human remains representing Program. seven objects listed above are [FR Doc. 99–23768 Filed 9–12–99; 8:45 am] reasonably believed to have been placed a minimum of two individuals were BILLING CODE 4310±70±F with or near individual human remains recovered from site 47–TR–31, Mound at the time of death or later as part of 26, HB–1, also known as the Trempealeau Lakes or Schwerts Mound the death rite or ceremony. Lastly, DEPARTMENT OF THE INTERIOR officials of the South Dakota State Group, Trempealeau County, WI during Archaeological Research Center have excavations conducted by field crews of National Park Service, Interior. determined that, pursuant to 43 CFR the State Historical Society of 10.2 (e), there is a relationship of shared Wisconsin. No known individuals were Notice of Intent to Repatriate Cultural group identity which can be reasonably identified. The 21 associated funerary Items in the Possession of the State traced between these Native American objects include bracelets, rings, fabric Historical Society of Wisconsin, human remains and associated funerary fragments, cowrie shells, tubular beads, Madison, WI objects and the Three Affiliated Tribes seed beads, and coin earrings. of the Fort Berthold Reservation. Based on historic material culture, AGENCY: National Park Service, Interior. including a wood coffin, associated with This notice has been sent to officials ACTION: Notice of the Three Affiliated Tribes of the Fort these burials and historic associated Berthold Reservation and the Pawnee funerary objects, these individuals have Notice is hereby given under the Indian Tribe of Oklahoma. been identified as Native American from Native American Graves Protection and Representatives of any other Indian tribe early this century (1900-1920 A.D.). Repatriation Act, 43 CFR 10.10 (a)(3), of that believes itself to be culturally Based on the material culture and Ho- the intent to repatriate cultural items in affiliated with these human remains and Chunk oral history, these individuals the possession of the State Historical have been identified as Ho-Chunk. associated funerary objects should Society of Wisconsin which meet the Based on the above mentioned contact Renee Boen, Curator, State definition of ‘‘sacred object’’ and ‘‘object information, officials of the State of cultural patrimony’’ under Section 2 Archaeological Center, South Dakota Historical Society of Wisconsin have of the Act. Historical Society, P.O. Box 1257, Rapid determined that, pursuant to 43 CFR City, SD 57709-1257; telephone: (605) 10.2 (d)(1), the human remains listed The 28 cultural items consist of one 394-1936, before October 13, 1999. above represent the physical remains of cloth wrapper, two cane flutes, nine Repatriation of the human remains and a minimum of two individuals of Native ermine skins, two fire-sets, a gourd associated funerary objects to the Three American ancestry. Officials of the State rattle, a gourd bowl, an iron spear point, Affiliated Tribes of the Fort Berthold Historical Society of Wisconsin have three war clubs, a rattle, a quillwork Reservation may begin after that date if also determined that, pursuant to 43 strip, a calico bundle containing a bird, no additional claimants come forward. CFR 10.2 (d)(2), the 21 objects listed a mat wrapper, a packet of roots, a Dated: August 23, 1999. above are reasonably believed to have buckskin bag, a packet of green paint, Francis P. McManamon, been placed with or near individual and a buckskin wrapper. Collectively, Departmental Consulting Archeologist, human remains at the time of death or these cultural items comprise a Ho- Manager, Archeology and Ethnography later as part of the death rite or Chunk Stealer Bundle. Program. ceremony. Lastly, officials of the State In 1930, Charles Brown, representing [FR Doc. 99–23770 Filed 9–10–99; 8:45 am] Historical Society of Wisconsin have the State Historical Society of BILLING CODE 4310±70±F determined that, pursuant to 43 CFR Wisconsin, purchased the Stealer 10.2 (e), there is a relationship of shared Bundle from John Blackhawk of Black group identity which can be reasonably River Falls, WI. DEPARTMENT OF THE INTERIOR traced between these Native American Consultation evidence presented by human remains and associated funerary the Ho-Chunk Nation of Wisconsin National Park Service objects and the Ho-Chunk Nation of confirms that all cultural items listed Wisconsin. above are used in the Eagle Clan Lodge Notice of Inventory Completion for This notice has been sent to officials ceremony. Representatives of wa ma nu Native American Human Remains and of the Ho-Chunk Nation of Wisconsin ka cha bra (Eagle Clan) have stated that Associated Funerary Objects from and the Winnebago Tribe of Nebraska. these items are needed by traditional Wisconsin in the Possession of the Representatives of any other Indian tribe religious leaders for the practice of State Historical Society of Wisconsin, that believes itself to be culturally Native American religion by their Madison, WI affiliated with these human remains and present-day adherents. Representatives AGENCY: National Park Service, Interior. associated funerary objects should of the Ho-Chunk Nation of Wisconsin ACTION: Notice. contact Ms. Jennifer Kolb, Director, and the Eagle Clan of the Ho-Chunk Museum Archeology Program, State Nation of Wisconsin have indicated that Notice is hereby given in accordance Historical Society of Wisconsin, 816 the Stealer Bundle and all associated with provisions of the Native American State Street, Madison, WI 53706; items are owned communally by the Graves Protection and Repatriation Act telephone (608) 264–6560; e-mail: clan as a whole and no individual had
VerDate 18-JUN-99 20:20 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm11 PsN: 13SEN1 49506 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices the right to sell or otherwise alienate the Graves Protection and Repatriation Act begin after that date if no additional Stealer Bundle or and associated items. (NAGPRA), 43 CFR 10.9, of the claimants come forward. Based on the above-mentioned completion of an inventory of human Dated: August 23, 1999. information, officials of the State remains in the possession of the Francis P. McManamon, Historical Society of Wisconsin have University of Pennsylvania Museum of Departmental Consulting Archeologist, determined that, pursuant to 43 CFR Archaeology and Anthropology, Manager, Archeology and Ethnography 10.2 (d)(3), these 28 cultural items are University of Pennsylvania, Program. specific ceremonial objects needed by Philadelphia, PA. [FR Doc. 99–23771 Filed 9–10–99; 8:45 am] traditional Native American religious A detailed assessment of the human BILLING CODE 4310±70±F leaders for the practice of traditional remains was made by University of Native American religions by their Pennsylvania professional staff in present-day adherents. Officials of the consultation with representatives of the DEPARTMENT OF JUSTICE State Historical Society of Wisconsin Ho-Chunk Nation of Wisconsin and the have also determined that, pursuant to Winnebago Tribe of Nebraska. Drug Enforcement Administration 43 CFR 10.2 (d)(4), these 28 cultural During the 1850s, human remains items have ongoing historical, [Docket No. 99±12] representing two individuals were traditional, and cultural importance removed from an unknown site by P. central to the culture itself, and could Frank D. Jackson, M.D.; Revocation of Gregg. In 1893, these human remains not have been alienated, appropriated, Registration were acquired by the Academy of or conveyed by any individual. Officials Natural Sciences, Philadelphia, PA. In On December 17, 1998, the Deputy of the State Historical Society of 1966, these remains were placed on loan Assistant Administrator, Office of Wisconsin have also determined that, at the University of Pennsylvania Diversion Control, Drug Enforcement pursuant to 43 CFR 10.2 (e), there is a Museum and were officially transferred Administration (DEA) issued an Order relationship of shared group identity into the University of Pennsylvania to Show Cause to Frank D. Jackson, which can be reasonably traced between Museum’s collections in 1998. No M.D. (Respondent) of Boston, these items and the Ho-Chunk Nation of known individuals were identified. No Massachusetts, notifying him of an Wisconsin. associated funerary objects are present. opportunity to show cause as to why This notice has been sent to officials DEA should not revoke his DEA Based on original accession of the Ho-Chunk Nation of Wisconsin Certificate of Registration AJ8888806 information, these individuals have and the Winnebago Tribe of Nebraska. pursuant to 21 U.S.C. 824(a)(4), and been identified as Native American. Representatives of any other Indian tribe deny any pending applications for Also based on original accession that believes itself to be culturally renewal of such registration pursuant to information, these individuals have affiliated with these objects should 21 U.S.C. 823(f), for reason that his been identified as Winnebago. No contact Ms. Jennifer Kolb, Director, continued registration would be further information exists for these Museum Archeology Program, State inconsistent with the public interest. individuals. Historical Society of Wisconsin, 816 By letter dated January 28, 1999, State Street, Madison, WI 53706; Based on the above mentioned Respondent requested a hearing on the telephone (608) 264-6560; e-mail: information, officials of the University issues raised by the order to Show [email protected] before of Pennsylvania Museum have Cause and the matter was docketed October 13, 1999. Repatriation of these determined that, pursuant to 43 CFR before Administrative Law Judge Mary objects to the Ho-Chunk Nation of 10.2 (d)(1), the human remains listed Ellen Bittner. On February 19, 1999, Wisconsin may begin after that date if above represent the physical remains of Judge Bittner issued an Order for no additional claimants come forward. two individuals of Native American Prehearing Statements. The Government ancestry. Lastly, officials of the filed its prehearing statement on March Dated: August 24, 1999. University of Pennsylvania Museum 10, 1999, but Respondent did not file a Francis P. McManamon, have determined that, pursuant to 43 prehearing statement. Departmental Consulting Archeologist, CFR 10.2 (e), there is a relationship of On April 20, 1999, the Government Manager, Archeology and Ethnography shared group identity which can be filed a Motion for Summary Disposition Program. reasonably traced between these Native and a Motion to Terminate the [FR Doc. 99–23769 Filed 9–10–99; 8:45 am] American human remains and the Ho- Proceedings. The Government’s motions BILLING CODE 4310±70±F Chunk Nation of Wisconsin and the alleged that (1) Respondent is not Winnebago Tribe of Nebraska. currently licensed to handle controlled This notice has been sent to officials substances in the state where he is DEPARTMENT OF THE INTERIOR of the Ho-Chunk Nation of Wisconsin registered with DEA, and (2) and the Winnebago Tribe of Nebraska. Respondent’s failure to file a prehearing National Park Service Representatives of any other Indian tribe statement acts as a waiver of his right to that believes itself to be culturally a hearing. Respondent was given until Notice of Inventory Completion for affiliated with these human remains May 18, 1999, to file a response to the Native American Human Remains in should contact Dr. Jeremy Sabloff, the Government’s motions, yet he did not the Possession of the University of Williams Director, University of do so. Pennsylvania Museum of Archaeology Pennsylvania Museum of Archaeology On May 27, 1999, Judge Bittner issued and Anthropology, University of and Anthropology, 33rd and Spruce her Opinion and Recommended Pennsylvania, Philadelphia, PA Streets, Philadelphia, PA 19104-6324; Decision, finding that Respondent lacks AGENCY: National Park Service telephone: (215) 898-4051, fax (215) authorization to handle controlled ACTION: Notice 898-0657, before October 13, 1999. substances in the Commonwealth of Repatriation of the human remains to Massachusetts; granting the Notice is hereby given in accordance the Ho-Chunk Nation of Wisconsin and Government’s Motion for Summary with provisions of the Native American the Winnebago Tribe of Nebraska may Disposition; recommending that
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Respondent’s DEA Certificate of See Philip E. Kirk, M.D., 48 FR 32887 days of receipt of the Order to Show Registration be revoked; and concluding (1983), aff’d sub nom Kirk v. Mullen, Cause, its hearing right would be that having granted the Government’s 749 F.2d 297 (6th Cir. 1984); see also deemed waived. Motion for Summary Disposition, it is NLRB v. International Association of DEA received a signed receipt unnecessary to rule on the Bridge, Structural and Ornamental indicating that the Order to Show Cause Government’s Motion to Terminate. Ironworkers, AFL–CIO, 549 F.2d 634 was received on April 10, 1999. No Neither party filed exceptions to her (9th Cir. 1977). request for a hearing or any other reply opinion, and on June 28, 1999, Judge Since DEA does not have the statutory was received by DEA from KK Bittner transmitted the record of these authority to maintain Respondent’s DEA Pharmacy or anyone purporting to proceedings to the Deputy registration because he is not currently represent it in this matter. Therefore, the Administrator. authorized to handle controlled Deputy Administrator, finding that (1) The Deputy Administrator has substances in Massachusetts, the Deputy 30 days have passed since the receipt of considered the record in its entirety, Administrator concludes that it is the Order to Show Cause, and (2) no and pursuant to 21 CFR 1316.67, hereby unnecessary to determine whether request for a hearing have been issues his final order based upon Respondent’s continued registration received, concludes that KK Pharmacy findings of fact and conclusions of law would be inconsistent with the public is deemed to have waived its hearing as hereinafter set forth. The Deputy interest, as alleged in the Order to Show right. After considering material from Administrator adopts, in full, the Cause. the investigative file in this matter, the Opinion and Recommended Decision of Accordingly, the Deputy Deputy Administrator now enters his the Administrative Law Judge. Administrator of the Drug Enforcement final order without a hearing pursuant The Deputy Administrator finds that Administration, pursuant to the to 21 CFR 1301.43(d) and (e) and the Commonwealth of Massachusetts, authority vested in him by 21 U.S.C. 823 1301.46. Board of Registration in Medicine and 824 and 28 CFR 0.100(b) and 0.104, The Deputy Administrator finds that suspended Respondent’s Massachusetts hereby orders that DEA Certificate of Daniel J. Vossman is the owner of KK medical license, effective March 10, Registration AJ8888806, previously Pharmacy and is also its pharmacist-in- 1999. As a result, the Deputy issued to Frank D. Jackson, M.D., be, charge. KK Pharmacy is located in Administrator concludes that and it hereby is, revoked. The Deputy Missouri and currently possesses DEA Respondent is not currently authorized Administrator further orders that any Certificate of Registration BK1488104. to practice medicine in the pending applications for renewal of In 1980, Mr. Vossman was the vice Commonwealth of Massachusetts, and such registration, be, and they hereby president of a corporation which owned therefore,it is reasonable to infer that he are, denied. This order is effective several pharmacies and a wholesale is not currently authorized to handle October 13, 1999. distributor in Kansas. In June of 1980, controlled substances in that state. Mr. Vossman admitted to the Kansas Dated: August 24, 1999. The DEA does not have the statutory Pharmacy Board (Kansas Board) that on authority under the Controlled Donnie R. Marshall, paper, he had been transferring the Substances Act to issue or maintain a Deputy Administrator. controlled substance Eskatrol from the registration if the applicant or registrant [FR Doc. 99–23669 Filed 9–10–99; 8:45 am] distributor to one of the pharmacies, but is without state authority to handle BILLING CODE 4410±09±M in fact, he had been giving the drug to controlled substances in the state in his wife for her personal use without a which he conducts his business. See 21 physician’s authorization. According to U.S.C. 802(21), 823(f) and 824(a)(3). DEPARTMENT OF JUSTICE Mr. Vossman, he diverted This prerequisite has been consistently approximately 1,300 dosage units of the Drug Enforcement Administration upheld. See Romeo J. Perez, M.D., 62 FR drug this way. A subsequent audit 16,193 (1997); Demetris A. Green, M.D., KK Pharmacy; Revocation of revealed a shortage of 1,300 dosage 61 FR 60,728 (1996); Dominick A. Ricci, Registration units of the drug this way. A subsequent M.D., 58 FR 51,104 (1993). audit revealed a shortage of 1,897 Here it is clear that Respondent is not On April 2, 1999, the Deputy dosage units of Eskatrol from the currently authorized to handle Assistant Administrator, Office of pharmacy and 150 dosage units from the controlled substances in the Division Control, Drug Enforcement distributor. A later investigation Commonwealth of Massachusetts, Administration (DEA), issued an Order revealed that prescriptions could not be where he is registered with DEA. As a to Show Cause to KK Pharmacy, of found for many Schedule II prescription result, he is not entitled to a DEA Osage Each, Missouri, notifying it of an numbers and many Schedule II registration in that state. opportunity to show cause as to why prescriptions that were on hand were In light of the above, Judge Bittner DEA should not revoke its DEA unsigned. In addition, an audit covering properly granted the Government’s Certificate of Registration BK1488104 the period January 1, 1977 to August 25, Motion for Summary Disposition. The pursuant to 21 U.S.C. 824(a)(1), 1980, revealed discrepancies for a parties did not dispute the fact that 824(a)(4) and 824(a)(5), and deny any number of Schedule II controlled Respondent is not currently authorized pending applications for renewal of substances, including a shortage of to handle controlled substances in such registration pursuant to 21 U.S.C. 2,207 dosage units of Eskatrol or 53.2% California. Therefore, it is well-settled 823(f), for reason that the pharmacy for which it was accountable. that when no question of fact is materially falsified an application for As a result, on December 3, 1980, the involved, or when the material facts are DEA registration, is continued Kansas Board issued an Order effective agreed upon, a plenary, adversarial registration would be inconsistent with October 1, 1980, which suspended Mr. proceeding involving evidence and the public interest, and it has been Vossman’s pharmacist registration for cross-examination of witnesses is not mandatorily excluded from 90 days, 60 days of which were required. See Jesus R. Juarez, M.D., 62 participation in a program pursuant to suspended, and then placed his FR 14945 (1997). The rationale is that 41 U.S.C. 1320a–7(a). The order also registration on probation for one year. In Congress does not intend administrative notified KK Pharmacy that should no addition, the wholesale distributor’s agencies to perform meaningless tasks. request for a hearing be field within 30 registration was limited to non-
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49508 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices controlled substances only. Since the Bureau of Narcotics and Dangerous pharmacy in Kansas, his surrender in wholesale distributor was not longer Drugs (Missouri BNDD). Mr. Vossman 1981 of the wholesale distributor’s DEA authorized to handle controlled agreed that for five years he would registration, or the 1994 Memorandum substances by the state, Mr. Vossman provide the Missouri BNDD with of Understanding with the Missouri surrendered the wholesale distributor’s prescription and refill information on a BNDD. DEA Certificate of Registration on quarterly basis; permit access to By letter dated August 16, 1996, the January 12, 1981. pharmacy records by the Missouri Board Missouri Department of Health On December 5, 1990, Mr. Vossman and the Missouri BNDD; and meet all proposed the denial of KK Pharmacy’s filed an application to review KK conditions set forth in the Stipulation application for renewal of its controlled Pharmacy’s DEA Certificate of and Agreement with the Missouri substance registration. The letter stated Registration BK1488104. Mr. Vossman Board. that Mr. Vossman has failed to provide answered ‘‘No’’ to the question on the KK Pharmacy failed to provide the satisfactory proof that the managing application (hereinafter referred to as Missouri BNDD with prescription officers of KK Pharmacy are of good the liability question) which asks, ‘‘If information as required by the moral character. The letter further stated the applicant is a * * * pharmacy, has Memorandum of Understanding, and that registration of KK Pharmacy is any officer, partner, stockholder or failed to renew its Missouri controlled inconsistent with the public interest proprietor * * * ever surrendered or substance registration. As a result, on because the pharmacy has not had a Federal controlled substance February 16, 1995, KK Pharmacy maintained effective controls against the registration revoked, suspended, entered into a second Memorandum of diversion of controlled substances, has restricted or denied, or ever had a State Understanding with the Missouri not operated in compliance with professional license or controlled BNDD, in which Mr. Vossman agreed to applicable state and federal law and has substance registration revoked, take a completed and accurate inventory provided false or fraudulent material suspended, denied, restricted or placed by hand of all controlled substances information on its application for on probation?’’ upon the signing of the Memorandum. registration. Between July 22, 1988 and December In addition, Mr. Vossman agreed that for Ultimately, by letter dated December 16, 1997, the Missouri Board of seven years he would, among other 3, 1996, Mr. Vossman was advised that Pharmacy (Missouri Board) conducted things, take an exact count of all KK Pharmacy’s application for a state ten inspections of KK Pharmacy. controlled substances on hand every six controlled substance registration was Throughout these inspections, various months; maintain a perpetual inventory denied and that he had 30 days to repeated violations of state and federal of all controlled substances; provide the request a hearing. The letter listed as controlled substance laws were noted, Missouri BNDD with prescription and reasons for the denial that Mr. Vossman such as controlled substances were refill information on a quarterly basis; made a false statement on an dispensed on a number of occasions maintain all records in accordance with application for a Missouri controlled without a physician’s authorization, state and federal laws; maintain substance registration; between June required information was missing from Schedule II order forms in accordance prescriptions, prescriptions were with federal law; not dispense Schedule 1994 and August 1995, KK Pharmacy missing from the pharmacy’s files, and II controlled substances without a filled or refilled 81 controlled substance a photocopied prescription for a signed prescription; not partially fill prescriptions without a physician’s Schedule II controlled substance was Schedule II prescriptions; and meet authorization; the pharmacy did not filled by the pharmacy. As a result of annually with the Missouri BNDD. maintain 25 controlled substance these inspections, the Missouri On November 15, 1996, a 29-count prescriptions on file for a period of two regulatory authorities took action on felony information was filed against Mr. years; it filled two Schedule II several occasions against KK Vossman in the Circuit Court of Camden prescriptions in excess of a 30-day Pharmacy’s state permits. County, Missouri alleging that Mr. supply without a physician’s written On August 17, 1993, the Missouri Vossman, d/b/a KK Pharmacy made justification; it filled four Schedule II Board issued a Stipulation and false statements to receive health care prescriptions for which there was no Agreement which placed the pharmacy payments. Two of these counts involved signed prescription order; and it filled permit of KK Pharmacy on probation controlled substances. On October 1, two Schedule II prescriptions without from August 27, 1993 through August 1997, Mr. Vossman pled guilty to one the dispenser’s signature. Mr. Vossman 26, 1998. This agreement was declared count of the information, and was requested a hearing on the denial. null and void in November 1996. sentenced to probation for five years. On July 16, 1997, Mr. Vossman and Mr. Vossman submitted another On November 22, 1996, Mr. Vossman the Missouri BNDD filed a ‘Joint renewal application for his DEA submitted an application to renew KK Stipulation of Facts, With Proposed Certificate of Registration on November Pharmacy’s DEA Certificate of AHC [Administrative Hearing 28, 1993. Again, Mr. Vossman Registration. On this application, Mr. Committee] Conclusions of Law and Answered ‘‘No’’ to the liability question, Vossman answered ‘‘Yes’’ to the liability Proposed AHC Order and with Joint and also answered ‘‘No’’ to another questions. In his explanation Agreement and Terms of Discipline,’’ liability question which asks whether, accompanying the application, Mr. hereinafter referred to as the Joint ‘‘the applicant [has] ever * * * had a Vossman indicated that he had been Agreement. In this filing the parties State professional license or controlled charged with making a false statement stipulated that KK Pharmacy’s Missouri substance registration revoked, to receive a health care benefit, and that controlled substance registration suspended, restricted or denied or ever he had signed a Memorandum of expired on July 31, 1994 and was not had a State professional license or Understanding with the Missouri BNDD renewed until February 16, 1995, yet the controlled substance registration on February 16, 1995, but that this pharmacy continued to dispense revoked, suspended, denied, restricted Memorandum was being contested in controlled substances. The parties also or place on probation?’’ the Circuit Court of Cole County, stipulated that KK Pharmacy furnished On February 2, 1994, KK Pharmacy Missouri. However, Mr. Vossman failed false information to the Missouri BNDD entered into a Memorandum of to mention the 1980 suspension and on three applications and dispensed 27 Understanding with the Missouri probation of his license to practice refills of generic Darvocet N–100 to a
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49509 customer in 1992 and 1993 without a Services Block Grant and Block Grants of this chapter or any other law of the physician’s knowledge or authorization. to States for Social Services programs United States, or of any State, relating As a result of this Joint Agreement, for a period of five years pursuant to 42 to any substance defined in this KK Pharmacy was issued a Missouri U.S.C. 1320a–7(a). subchapter as a controlled substance; controlled substance registration which On March 11, 1998, a Felony (3) Has had his State license or was placed on probation for five years Conviction Complaint was filed with registration suspended, revoked, or subject to various terms and conditions, the Missouri Board stating that Mr. denied by competent State authority including that KK Pharmacy will Vossman’s conviction is an offense and is no longer authorized by State law maintain a perpetual inventory for all reasonably related to the qualifications, to engage in the manufacturing, controlled substances using the functions, or duties of a pharmacist or distribution, or dispensing of controlled Pharmacy’s computer, conduct involves moral turpitude, and asking the substances or has had the suspension, background checks on all current and Missouri Board to conduct a hearing revocation or denial of his registration future pharmacist employees; maintain and to impose appropriate discipline. recommended by competent State records showing the dates and times Following a hearing, not attended by authority; each pharmacy employee works; Mr. Vossman or a representative, the (4) Has committed such acts as would employ a consulting pharmacist to Missouri Board issued its Findings of render his registration under section 823 review the pharmacy’s controlled Fact, Conclusions of Law, and Order of of this title inconsistent with the public substance handling; provide the Discipline (Order) on April 23, 1998, interest as determined under such Missouri BNDD with prescription and revoking Mr. Vossman’s pharmacist section; or refill information on a quarterly basis; license. Thereafter, on April 30, 1998, (5) Has been excluded (or directed to not accept any Schedule II telephone Mr. Vossman filed a Petition for Review be excluded) from participation in a prescription; verify that all information of the Missouri Board’s Order stating program pursuant to section 1320a–7(a) on controlled substance prescriptions is that he did not attend the disciplinary or Title 42. complete and accurate; and verify on a hearing because he was not aware of it, The Deputy Administrator finds that daily basis a printout of prescription and even had he been aware of the it is well-settled that a pharmacy data for that day. hearing, he would not have had operates under the control of owners, On November 20, 1997, the consulting sufficient time to prepare for it. In stockholders, pharmacists or other pharmacist filed her first report with the addition, Mr. Vossman filed a motion on employees, and therefore the acts of Missouri BNDD noting that KK April 30, 1998, in the Circuit Court of these individuals are relevant in Pharmacy seemed to be making efforts Cole County, Missouri seeking a stay of determining whether grounds exist to to comply with the Joint Agreement, the Missouri Board’s Order pending revoke a pharmacy’s DEA Certificate of however she was still finding problems resolution of the appeal. The Court Registration. See Rick’s Pharmacy, Inc., with the Schedule III through V granted Mr. Vossman’s motion for a stay 62 FR 42595 (1997), Maxicare perpetual inventory resulting in an on April 30, 1998. Pharmacy, 61 FR 27368 (1996); Big-T ability to reconcile the drugs. The On June 18, 1998, Mr. Vossman filed Pharmacy, Inc. 47 FR 51830 (1982). consulting pharmacist submitted her a request for rehearing while his Pursuant to 21 U.S.C. 824(a)(1), a second report on March 10, 1998, in petition for review of the Missouri registration may be revoked if the which she noted a decline in KK Board’s revocation of his pharmacist registrant has materially falsified an Pharmacy’s compliance with the Joint license was pending. The Missouri application for registration. DEA has Agreement and many violations of Board withdrew its April 23, 1998 previously held that in finding that pharmacy law. The consulting Order, and a hearing was held on July there has been a material falsification of pharmacist stated in her report that ‘‘I 9, 1998. On July 16, 1998, the Missouri an application, it must be determined must also say that over the last three Board issued its Findings of Fact, that the applicant knew or should have months I have felt that there have been Conclusions of Law, and Order of known that the response given to the attempts to hide or cover missing Discipline (Order) revoking Mr. liability question was false. See, Martha information needed by me to make an Vossman’s pharmacist license and Hernandez, M.D., 62 FR 61145 (1997); accurate assessment of the pharmacy’s prohibiting him from applying for Herbert J. Robinson, M.D. 59 FR 6304 compliance with the agreement.’’ The reinstatement of his license for three (1994). consulting pharmacist further ‘‘found it years. Mr. Vossman again filed a On KK Pharmacy’s renewal to be virtually impossible to reconcile petition for review of the Missouri application dated December 5, 1990, Mr. the inventory in this pharmacy because Board’s Order on July 24, 1998, in the Vossman answered ‘‘No’’ to the liability there have been so many errors and Circuit Court of Cole County, Missouri. question, even though his Kansas corrections that there is no way to trace Mr. Vossman also filed a motion in the pharmacist license had been suspended [the drugs.]’’ The consulting pharmacist Circuit Court of Cole County, Missouri, and then placed on probation in 1980, concluded that ‘‘[o]ver the last three requesting a stay of the Missouri Board’s and he surrendered his wholesale months I have felt that Mr. Vossman has Order pending appeal, which was distributor’s DEA registration in 1981. not taken the initiative to be responsible granted on July 27, 1998. There is no Mr. Vossman also falsified KK for the pharmacy, but has expected that further evidence in the file regarding the Pharmacy’s renewal application dated I or the technicians would come in and disposition of this matter. November 28, 1993, by again answering do the job for him[,]’’ and that ‘‘I am not The Deputy Administrator may ‘‘No’’ to the liability question. Like the sure that Mr. Vossman has the incentive revoke or suspend a DEA Certificate of 1900 renewal application, Mr. Vossman or the skills needed to comply with the Registration under 21 U.S.C. 824(a), should have disclosed the action against terms of this agreement.’’ upon a find that the registrant: his Kansas pharmacist license in 1980 By letter dated February 27, 1998, Mr. (1) Has materially falsified any and the surrender of his wholesale Vossman was notified by the application filed pursuant to or required distributor DEA registration in 1981. In Department of Health and Human by this subchapter or subchapter II of addition, Mr. Vossman should have Services that he was being excluded this chapter; answered the liability question in the from participation in the Medicare, (2) Has been convicted of a felony affirmative based upon the Missouri Medicaid, Maternal and Child Health under this subchapter or subchapter II Board’s action in August 1993 placing
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49510 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices the pharmacy permit of KK pharmacy Action was taken by the Missouri BNDD interest and therefore grounds exist to on probation for five years. While the to deny KK Pharmacy’s state controlled revoke the pharmacy’s DEA Certificate Missouri Board’s action was ultimately substance registration in December of Registration pursuant to 21 U.S.C. declared null and void in November 1996. The pharmacy was ultimately 824(a)(4). 1996, it was in effect in November 1993 issued a new state controlled substance Finally, there is a basis to revoke KK when Mr. Vossman submitted the registration in July 1997 that was subject Pharmacy’s DEA Certificate of renewal application. to various terms and conditions for five Registration pursuant to 21 U.S.C. Finally, while Mr. Vossman did years. Then in 1998, Mr. Vossman’s 824(a)(5). Mr. Vossman was advised by answer ‘‘Yes’’ to the liability question pharmacist permit was revoked by the letter from the Department of Health on KK Pharmacy’s renewal application Missouri Board, but that revocation was and Human Services dated February 27, dated November 22, 1996, he failed to stayed pending appeal of the Missouri 1998, that pursuant to 42 U.S.C. 1320a– note in his explanation for his response Board’s Order. 7(a) he was excluded from participation that he had entered into a Memorandum Factors two and four, KK Pharmacy’s in the Medicare, Medicaid, Maternal of Understanding with the Missouri experience in dispensing controlled and Child Health Services Block Grant BNDD in 1994; that his Kansas substances and its compliance with and Block Grants to States for Social pharmacist license was suspended and applicable laws, are clearly relevant in Services programs for a period of five then placed on probation in 1980; and determining the public interest. In 1980, years. The Deputy Administrator finds that he surrendered the DEA registration Mr. Vossman diverted controlled that while this exclusion was based of his wholesale distributor in 1981. substances from his then pharmacy and upon Mr. Vossman’s conviction for a The Deputy Administrator concludes wholesale distributor for his wife’s non-controlled substance related that Mr. Vossman materially falsified personal use without a physician’s offense, DEA has previously held that KK Pharmacy’s 1990, 1993 and 1996 authorization. Between 1988 and 1997, misconduct which does not involve renewal applications for its DEA the Missouri Board conducted ten controlled substances may constitute Certificate of Registration, and therefore inspections of the pharmacy which grounds, under 21 U.S.C. 824(a)(5), for grounds exists to revoke the pharmacy’s revealed numerous repeated violations. the revocation of a DEA Certificate of DEA registration. Particularly noteworthy is that Mr. Registration. See Stanley Dubin, D.D.S., Next, pursuant to 21 U.S.C. 823(f) and Vossman continued to dispense 61 FR 60727 (1996), George D. Osafo, 824(a)(4), the Deputy Administrator may controlled substances on a number of M.D., 58 FR 37508 (1993); Gilbert L. revoke a DEA Certificate of Registration occasions without a physican’s Franklin, D.D.S., 57 FR 3441 (1992). and deny any pending applications, if authorization. Therefore, the Deputy Administrator he determines that the continued In 1997, Mr. Vossman was given concludes that grounds exist to revoke another chance by the Missouri Board to registration would be inconsistent with KK Pharmacy’s DEA Certificate of come into compliance. However, the the public interest. Section 823(f) Registration pursuant to 21 U.S.C. consulting pharmacist hired to review requires that the following factors be 824(a)(1), (4), and (5). No evidence of KK Pharmacy’s handling of controlled considered: explanation or mitigating circumstances substances reported in March 1998 that, (1) The recommendation of the was offered by KK Pharmacy, Mr. ‘‘there have been attempts to hide or appropriate State licensing board or Vossman, or anyone purporting to cover missing information needed professional disciplinary authority. represent the pharmacy. ** * to make an accurate assessment (2) The applicant’s experience in Accordingly, the Deputy of the pharmacy’s compliance with the dispensing, or conducting research with Administrator of the Drug Enforcement agreement.’’ The consulting pharmacist Administration, pursuant to the respect to controlled substances. concluded that, ‘‘Mr. Vossman has not (3) The applicant’s conviction record authority vested in him by 21 U.S.C. 823 taken the initiative to be responsible for and 824, and 28 CFR 0.100(b) and 0.104, under Federal or State laws relating to the pharmacy, but has expected that I or the manufacture, distribution, or hereby orders that DEA Certificate of the technicians would come in and do Registration BK1488104, previously dispensing of controlled substances. the job for him,’’ and that ‘‘I am not sure (4) Compliance with applicable State, issued to KK Pharmacy, be, and it that Mr. Vossman has the incentive or hereby is, revoked. The Deputy Federal, or local laws relating to the skills needed to comply with the controlled substances. Administrator further orders that any terms of this agreement.’’ pending applications for renewal of (5) Such other conduct which may While there is no evidence under threaten the public health and safety. such registration, be, and they hereby factor three that Mr. Vossman or KK are, denied. This order is effective These factors are to be considered in the Pharmacy has been convicted of a October 13, 1999. disjunctive; the Deputy Administrator controlled substance related offense, the may rely on any one or a combination Deputy Administrator does find Mr. Dated: August 24, 1999. of factors and may give each factor the Vossman’s conviction for making a false Donnie R. Marshall, weight he deems appropriate in statement to receive a health care Deputy Administration. determining whether a registration benefit relevant under factor five. A [FR Doc. 99–23667 Filed 9–10–99; 8:45 am] should be revoked or an application for registrant’s truthfulness and BILLING CODE 4410±09±M registration be denied. See Henry J. trustworthiness are appropriately Schwarz, Jr., M.D., 54 FR 16422 (1989). considered in determining the public As to factor one, the file is replete interest. DEPARTMENT OF JUSTICE with actions against KK Pharmacy and The Deputy Administrator concludes Mr. Vossman by various state licensing that there are serious questions as to Drug Enforcement Administration agencies. Mr. Vossman’s Kansas whether Mr. Vossman and KK Pharmacy Manufacturer of Controlled pharmacist license was suspended in can be trusted to responsibly handle Substances; Notice of Application 1980 and then placed on probation. KK controlled substances. Accordingly, the Pharmacy entered into a Memorandum Deputy Administrator concludes that Pursuant to Section 1301.33(a) of Title of Understanding with the Missouri KK Pharmacy’s continued registration 21 of the Code of Federal Regulations BNDD in 1994, and again in 1995. would be inconsistent with the public (CFR), this is notice that on July 22,
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1999, Novartis Pharmaceutical ACTION: Notice. continues to meet the conditions for Corporation, 59 Route 10, East Hanover, designation, the period of extension is New Jersey 07926, made application by SUMMARY: This notice extends the extended, pursuant to section renewal to the Drug Enforcement Attorney General’s designation of 244(b)(3)(C) of the Act. 8 U.S.C. Administration (DEA) for registration as Somalia under the Temporary Protected 1254a(b)(3)(C). Through such an a bulk manufacturer of methylphenidate Status (TPS) program until September extension, TPS is available only to (1724), a basic class of controlled 17, 2000. Eligible nationals of Somalia persons who have been continously substance listed in Schedule II. (or aliens having no nationality who last physically present and have continously The firm plans to manufacture habitually resided in Somalia) may re- resided in the United States from the finished product for distribution to its register for TPS and an extension of effective date of the initial designation, customers. employment authorization. Re- in this case, since September 16, 1991. Any other such applicant and any registration is limited to persons who person who is presently registered with registered for the initial period TPS, Who Did the Attorney General Decide DEA to manufacture such substance which ended on September 16, 1992, or To Extend the TPS Designation for may file comments or objections to the who registered after that date under the Somalia? issuance of the proposed registration. late initial registration provision. Any such comments or objections Persons who are eligible for late initial On September 16, 1991, the Attorney may be addressed, in quintuplicate, to registration may register for TPS during General initially designated Somalia the Deputy Assistant Administrator, this extension. under the TPS program for a period of Office of Diversion Control, Drug EFFECTIVE DATES: The extension of the 12 months. 56 FR 46804. Since that Enforcement Administration, United TPS designation for Somalia is effective date, the Departments of State and States Department of Justice, September 18, 1999, and will remain in Justice have annually reviewed Washington, DC 20537, Attention: DEA effect until September 17, 2000. The 30- conditions within Somalia. Based on Federal Register Representative (CCR), day re-registration period begins this year’s review, the Attorney General and must be filed no later than September 13, 1999 and will remain in finds that the armed conflict in Somalia November 12, 1999. effect until October 13, 1999. is ongoing, and that the extraordinary and temporary conditions that provided Dated: August 31, 1999. FOR FURTHER INFORMATION CONTACT: a basis for the initial TPS designation Michael Valverde, Residence and Status John H. King, continue to warrant the extension of Deputy Assistant Administrator, Office of Services Branch, Adjudications, Immigration and Naturalization Service, Somalia’s TPS designation. 8 U.S.C. Diversion Control, Drug Enforcemenet 1254a(b)(1)(C). Administration. Room 3214, 425 I Street, NW, [FR Doc. 99–23670 Filed 9–10–99; 8:45 am] Washington, DC 20536, telephone (202) If I Currently Have TPS, How Do I BILLING CODE 4410±09±M 514–4754. Register for an Extension? SUPPLEMENTARY INFORMATION: Persons previously granted TPS under DEPARTMENT OF JUSTICE What Authority Does the Attorney the Somalia program may apply for an General Have to Extend the Designation extension by filing a Form I–821, Immigration and Naturalization Service of Somalia Under the TPS Program? Application for Temporary Protected [INS No. 2015±99; AG Order No. 2254±99] Section 244(b)(3)(A) of the Status, without the fee, during the re- Immigration and Nationality Act (Act) registration period that begins RIN 1115ÐAE 26 states that at least 60 days before the September 13, 1999 and ends October 13, 1999. Additionally, you must file a Extension of Designation of Somalia end of an extension or a designation, the Form I–765, Application for Under Temporary Protected Status Attorney General must review Employment Authorization. See the Program conditions in the foreign state for which the designation is in effect. 8 U.S.C. chart below to determine whether or not AGENCY: Immigration and Naturalization 1254a(b)(3)(A). If the Attorney General you must submit the one-hundred dollar Service, Justice. determines that the foreign state ($100) filing fee with the Form I–765.
IfÐ ThenÐ
You are applying for employment authorization through September 17, You must complete and file the Form I±765, Application for Employ- 2000. ment Authorization, with the one-hundred dollar ($100) fee. You already have employment authorization or do not require employ- You must complete and file the Form I±765, Application for Employ- ment authorization. ment Authorization, with no fee. You are applying for employment authorization and are requesting a You must complete and file Form I±765 and a fee waiver request and fee waiver. affidavit (and any other information) in accordance with 8 CFR 244.20.
To re-register for TPS, you also must late initial registration an applicant (3) have continuously resided in the include two identification photographs must United States since September 16, 1991; 1 ′′ × 1 ′′ (1 ⁄2 1 ⁄2 ). (1) be a national of Somalia (or alien and Is Late Registration Possible? having no nationality who last (4) be admissible as an immigrant, habitually resided in Somalia); except as otherwise provided in section Yes. In addition to timely re- (2) have been continuously physically 244(c) of the Act. 8 CFR 244.2(f)(2). registration, late initial registration is present in the United States since Additionally, the applicant must be possible for some persons from Somalia September 16, 1991; able to demonstrate that, during the under 8 CFR 244.2(f)(2). To apply for initial registration period from
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September 16, 1991, through September TPS does not change the required dates available at local Service offices upon 16, 1992, he or she of continuous physical presence and publication of this notice. (1) was in valid immigrant or residence in the United States, and does Dated: September 3, 1999. nonimmigrant status, or had been not expand the TPS program to include Janet Reno, granted voluntary departure status, or nationals of Somalia (or aliens having any relief from removal; no nationality who last habitually Attorney General. (2) had an application for change of resided in Somalia) who arrived in the [FR Doc. 99–23728 Filed 9–10–99; 8:45 am] status, asylum, voluntary departure United States after the date of the BILLING CODE 4410±10±M status or any relief from removal; original designation, in this case, (3) was a parolee or had a pending September 16, 1991. request for reparole; or DEPARTMENT OF LABOR (4) was the spouse or child of an alien Notice of Extension of Designation of currently eligible to be a TPS registrant. Somalia Under the TPS Program Employment and Training Id. By the authority vested in me as Administration An applicant for late initial Attorney General under section registration must register no later than 244(b)(3)(A) of the Act, I have consulted Proposed Information Collection sixty (60) days from the expiration or with the appropriate agencies of the Request Submitted for Public termination of the qualifying condition. Government concerning whether the Comment and Recommendations; Id. conditions under which Somalia was Extension of the Unemployment initially designated for TPS continue to Insurance (UI) Title XII Advances Where Should I File for an Extension of exist. As a result, I determine that, the Process TPS? armed conflict in Somalia is ongoing, ACTION: Notice. Nationals of Somalia (or aliens having and that the extraordinary and no nationality who last habitually temporary conditions that provided a SUMMARY: The Department of Labor resided in Somalia) seeking to register basis for the initial TPS designated for (DOL), as part of its continuing effort to for an extension of TPS must submit an Somalia continue to exist. Accordingly, reduce paperwork and respondent application and accompanying materials I order as follows: burden, conducts a preclearance to the Immigration and Naturalization (1) The designation of Somalia under consultation program to provide the Service local office that has jurisdiction section 244(b) of the Act is extended for general public and Federal agencies over the applicant’s place of residence. an additional 12-month period from with an opportunity to comment on September 18, 1999, until September 17, proposed and/or continuing collections When Can I File for an Extension of 2000. 8 U.S.C. 1254a(b)(3)(C). TPS? of information in accordance with the (2) I estimate that there are Paperwork Reduction Act of 1995 The 30-day re-registration period approximately 350 nationals of Somalia (PRA95) (44 U.S.C. 3506(c)(2)(A)). This begins September 13, 1999 and will (or alien having no nationality who last program helps to ensure that requested remain in effect until October 13, 1999. habitually resided in Somalia) who have data can be provided in the desired been granted TPS and who are eligible How Does an Application for TPS format, reporting burden (time and for re-registration. financial resources) is minimized, Affect My Application for Asylum or (3) In order to be eligible for TPS Other Immigration Benefits? collection instruments are clearly during the period from September 18, understood, and the impact of collection An application for TPS does not affect 1999, through September 17, 2000, a requirements on respondents can be an application for asylum or any other national of Somalia (or aliens having no properly assessed. Currently, the immigration benefit. A national of nationality who last habitually resided Employment and Training Somalia ( or alien having no nationality in Somalia) who received a grant of TPS Administration is soliciting comments who last habitually resided in Somalia) during the initial period of designation concerning the proposed extension of who is otherwise eligible for TPS and from September 16, 1991, until the process for requesting advances has applied for or plans to apply for September 16, 1992, must re-register for from the Federal Unemployment asylum, but who has not yet been TPS by filing a new Application for Account (FUA) and repayment of such granted asylum or withholding of Temporary Protected Status, Form I– advances under Title XII of the Social removal, may also apply for TPS. Denial 821, along with an Application for Security Act(SSA). Technically, there is of an application for Asylum or any Employment Authorization, Form I– no request for information. There is, other immigration benefit does not 765, within the 30-day period beginning however, a paperwork burden on States affect an applicant’s ability to register on September 13, 1999 and ending on because they must prepare and transmit for TPS, although the grounds of denial October 13, 1999. formal requests for the authority to may also be grounds of denial for TPS. (4) Pursuant to section 244(b)(3)(A) of request advances and the repayment of For example, a person who has been the Act, the Attorney General will said advances. convicted of an aggravated felony is not review, at least 60 days before A copy of the proposed procedure can eligible for asylum or TPS. September 17, 2000, the designation of be obtained by contacting the addressee Somalia under the TPS program to listed below. Does This Extension Allow Nationals of determine whether the conditions for Somalia (or Aliens Having No designation continue to be met. 8 U.S.C. DATES: Written comments must be Nationality Who Last Habitually 1254a(b)(3)(A). Notice of that submitted on or before November 12, Resided in Somalia) Who Entered the determination, including the reasons 1999. United States After September 16, 1991, underlying it, will be published in the ADDRESSES: Office of Workforce To File for TPS? Federal Register. Security, Employment and Training No. This is a notice of an extension of (5) Information concerning the TPS Administration, Department of Labor, the TPS designation for Somalia. It is program for nationals of Somalia (or Room C 4514, 200 Constitution Ave, not a notice of redesignation of Somalia aliens having no nationality who last NW., Washington, DC 20210; 202 219– under the TPS program. An extension of habitually resided in Somalia) will be 7831 (this is not a toll-free number).
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FOR FURTHER INFORMATION CONTACT: • Minimize the burden of the DEPARTMENT OF LABOR James E. Herbert 202–219–5653, procedure on those who are to respond, [email protected]. including the use of appropriate Employment and Training SUPPLEMENTARY INFORMATION: automated, electronic, mechanical, or Administration other technological collection I. Background Job Training and Partnership Act techniques or other forms of information Title XII section 1201 of the SSA (JTPA), Title IVÐPilot and technology, e.g., permitting electronic Demonstration Program provides for advances to States from the submission of responses. FUA. The law further sets out specific AGENCY: Employment and Training requirements to be met by a State III. Current Actions Administration, Labor. requesting an advance: ACTION: Notice, solicitation of grant • The Governor must apply for the This action is requested to maintain applications for proposals to conduct advance; the continuity of current procedures regional consortium building activities. • The application must cover a three which have succeeded in the orderly month period and the Secretary of Labor application and repayment operations at SUMMARY: The U.S. Department of Labor must be furnished with estimates of the both the State and Federal levels. This (DOL), Employment and Training amounts needed in each month of the is not a data collection process. Administration (ETA), using funds three month period; authorized under the JTPA Section 452 • Agency: Employment and Training An application for an advance shall Administration, Department of Labor (c) for Pilot and Demonstration be made on such forms and shall programs, is seeking to award regional Title: Governor’s requests for contain such information and data consortium building grants as stated in advances from the Federal (fiscal and otherwise) concerning the the Conference Report (H. Rep. No. 105– operation and administration of the unemployment account or requests for 825). The purpose of these awards is to State unemployment compensation law voluntary repayment of such advances. support the creation and development as the Secretary of Labor deems OMB Number: 1205–0199. of regional skills consortia for the necessary or relevant to the performance Affected Public: State governments purpose of assessing employer skill of his duties under this title; needs and of assessing the need for • (State Employment Security Agencies). The amount required by any State closing the gaps between the skills for the payment of compensation in any Total Respondents: 50 States, needed by industry and the skills month shall be determined with due Washington, DC, the Virgin Islands, and currently held by regional workers. allowance for contingencies and taking Puerto Rico are covered by this process. into account all other amounts that will The DOL estimates that no State will be All Information Required To Submit a be available in the State’s requesting advances and making Grant Application is Contained in This unemployment fund for the payment of repayments in FY 2000, 2001, and 2002. Announcement. compensation in such month; However, in the event of a recession, It is anticipated that up to $9 million • The term ‘‘compensation’’ means that estimate may be revised, and that will be available for funding the projects cash benefits payable to individuals contingency must be accommodated. In covered by this solicitation. with respect to their unemployment the last recession, six States requested Approximately 15 grants will be exclusive of expenses of administration. advances. awarded, and the estimated range of Section 1202(a) of the SSA provides awards will be $500,000 to $1 million. Frequency: As needed, based on a that the Governor of any State may at At the Government’s discretion, it is State’s discretion. any time request that funds be possible that awards would be made transferred from the account of such Total Responses: 0. above this amount. State to the FUA in repayment of part Average Time Per Response: 1 hour. DATES: Applications for grant awards or all of the balance of advances made Estimated Total Burden Hours: None will be accepted commencing to such State under section 1201. These September 13, 1999. The closing date applications and repayments may be under current forecasts. This estimate may change as a result of economic for receipt of applications is Monday, requested by an individual designated November 15, 1999, at 4 p.m. (Eastern recession. for that authority in writing by the Time) at the address below. Governor. The DOL proposes to extend Estimated Total Burden Cost: None Telefacsimile (FAX) applications will this procedure through September, under current forecasts. This estimate not be honored. 2002. may change as a result of economic ADDRESSES: Applications must be II. Review Focus recession. mailed to : U.S. Department of Labor, The DOL is particularly interested in Comments submitted in response to Employment and Training comments which: this notice will be summarized and/or Administration, Division of Federal • Evaluate whether the proposed included in the request for Office of Assistance, Attention: Ms. Mamie D. extension of the current procedure is Management and Budget approval of the Williams, Reference: SGA/DFA 99–021, necessary for the proper performance of information collection request; they will 200 Constitution Avenue, NW, Room S– the functions of the agency, including also become a matter of public record. 4203, Washington, DC 20210. whether the information will have FOR FURTHER INFORMATION CONTACT: Dated: September 3, 1999. practical utility; Questions should be faxed to Mamie D. • Evaluate the accuracy of the Cheryl Atkinson, Williams, at (202) 219–8739 (this is not agency’s estimate of the burden of the Deputy Director, Unemployment Insurance a toll free number). All inquiries should proposed extension of the current Service. include the SGA number (SGA/DFA 99– procedure, including the validity of the [FR Doc. 99–23688 Filed 9–10–99; 8:45 am] 021) and a contact name, telephone and methodology and assumptions used; BILLING CODE 4510±30±P fax number. This solicitation will also • Enhance the quality, utility, and be published on the Internet, on the clarity of the procedure; and Employment and Training
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Administration’s Home Page at http:// applicant may (but is not required to) be eligible for the receipt of federal www.doleta.gov. Award notifications submit a certification from a PIC or WIB funds constituting an award, grant, or will also be published on this attesting to the fact that such loan. Homepage. consultation is going on and a • Part II must contain a technical SUPPLEMENTARY INFORMATION: There is cooperative working relationship exists proposal that demonstrates the clear emphasis in the Workforce (or is being developed). applicant’s capabilities in accordance Investment Act of 1998 (WIA) on This Solicitation is extremely open- with the Statement of Work contained regional planning and cooperation. It is ended in terms of defining which in this announcement. A grant envisioned that the successful organizations are eligible to apply for application is limited to twenty (20) applicants will play a significant grant awards or to participate in the double-spaced, single-side, 8.5-inch × contributory role toward establishing partnerships. Specifically, organizations 11-inch pages with 1-inch margins. that capacity. One of the roles of the eligible to apply may include but are not Attachments may not exceed fifteen (15) consortia will be to work in tandem limited to organizations and regional pages. Text type willl be 11 point or with the emerging structures under WIA consortia that comprise businesses, larger. Applications that do not meet to develop a strong cohesive basis for business and trade associations, labor these requirements will not be unions, community colleges and other workforce planning and development so considered. Each application must post-secondary institutions, and that skills shortages in industry are include a Time Line outlining project community-and faith-based identified and resolved, and training activities and an Executive Summary organizations. In view of the fact that opportunities for workers are clearly not to exceed two pages. The Time Line one of the foci of this initiative is available and publicized. and the Executive Summary do not closing regional skills gaps, it would be This program places strong emphasis count against the 20-page limit. No cost highly desirable to include businesses on supporting existing or emerging data or reference to price should be as participants which represent regional consortia that put a primary included in the technical proposal. focus on technical skills training— industries and occupations in which whether in a single industry or there are regional skills shortages. PICs C. Hand—Delivered Proposals occupation or in a broader multi- or local boards may also apply for these grants both singly and in partnership If proposals are hand-delivered, all industry or occupational setting that is copies must be received at the more geographically based. While with other PICs or other organizations. The governing criterion should be that designated place by 4 p.m., Eastern significant latitude will be given in Time, Monday, November 15, 1999. All terms of the composition of an eligible the organization, group, consortium, or partnership is interested in addressing overnight mail will be considered to be applicant’s porposed regional hand delivered and must be received at consortium, inclusion of a local board(s) activities relating to regional job skills, gaps/needs and is interested, in the case the designated place by 4 on the as authorized under Section 117 of WIA specified closing date. Telegraphed and/ is highly desirable and encouraged. of a single organization applicant, in creating a regional consortium for that or faxed proposals will not be honored. Part I—Application Process purpose. Failure to adhere to the above As noted above, these regional instructions will be a basis for a A. Eligible Applicants consortia will probably be multi- determination of nonresponsiveness. Awards under this Solicitation will be jurisdictional and may, in some cases, D. Late Proposals made to organizations and regional cross State boundaries, however, no consortia of organizations that minimum size is established, and the A proposal received at the designated demonstrate the capacity to develop a smallest grant could conceivably office after the exact time specified for comprehensive skill training plan for encompass a single local workforce receipt will not be considered unless it the area. The intent is to create investment area or service delivery area. is received before award is made and it: partnerships that are broadly inclusive • Was sent by registered or certified of groups in a geographic region or of B. Submission of Proposals mail not later than the fifth calendar day entities focusing on a single industry or Applicants must submit four (4) before the date specified for receipt of skilled occupation in an area. copies of their proposal, with original applications (e.g., an offer submitted in There is no requirement that any of signatures. The proposal must consist of response to a solicitation requiring the partners in a consortium submitting two (2) distinct parts, Parts I and II. receipt of applications by the 20th of the an application be a private industry • Part I of the proposal shall contain month must be mailed by the 15th); council (PIC) established under section the Standard Form (SF) 424, • 102 of the Job Training Partnership Act ‘‘Application for Federal Was sent by U.S. Postal Service (JTPA) or a local workforce investment Assistance’’(appendix A) and a ‘‘Budget Express Mail Next Day Service, Post board that oversees training programs Information Sheet’’ (appendix B). All Office to addressee, not later than 5 p.m. and projects operated in the local copies of the (SF) 424 MUST have at the place of mailing two working days workforce investment systems created original signatures of the legal entity prior to the date specified for proposals. under the Workforce Investment Act of applying for grant funding. The The term ‘‘working days’’ excludes 1998 (WIA). It is not, however, the individual who signs the application weekends and U.S. Federal holidays. intent of this program to fund the should be the same individual who The only acceptable evidence that an establishment of a parallel workforce signs the certification discussed in the application was sent in accordance with training system to the one that has previous section. Applicants shall these requirements is a printed, already been established under JTPA indicate on the (SF) 424 the stamped, or otherwise placed and WIA. Therefore, applicants are organization’s IRS status, if applicable. impression (exclusive of a postage meter strongly encouraged to consult with the According to the Lobbying Disclosure machine impression) that is readily workforce investment entities (PICs or Act of 1995, section 18, an organization identifiable without further action as WIBs) in their local area and seek to described in section 501(c)( 4) of the having been supplied or affixed on the develop a partnership that works in Internal Revenue Code of 1986 which date of mailing by employees of the U.S. consonance with those entities. The engages in lobbying activities shall not Postal Service.
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E. Funding Availability and Period of business and the skills held by regional roles of the various partners will be. Performance workers. Because a major purpose of the The Department of Labor expects to Traditionally, overall tight labor consortia will be to address industry make approximately 15 awards, with a markets and even skill shortages are skill needs, applicants are encouraged to total investment of approximately good for workers in that they can lead enter into partnership arrangements $9,000,000. The period of performance to rising wages, improved working with entities which possess a sound will be for 18 months from the date the conditions, and new opportunities for grasp of the job marketplace in the grant is awarded. Because ETA views workers and new labor market entrants. region. Typically, such organizations these grants as initial start up funding, What is a skill shortage? In the simplest would include businesses (including it is anticipated that these awards will terms possible, a shortage occurs in a small-and medium-size businesses) and be one-time grants with no provision of market economy when the demand for business, trade or industry associations an option year. The Department expects workers in a particular occupation at an such as local Chambers of Commerce. that the award amounts will range from ascertainable skill level is greater than A significant aspect of the $500,000 to $1 million. At the the supply of workers who are qualified, consortium-building effort is the Government’s discretion, it is possible available, and willing to do the job. resources that entities can bring to the that awards would be made above this Problematic regional or sectoral table and contribute to the partnership. amount. industry skills shortages—those that The Employment and Training occur when there is imbalance between Administration (ETA) does not require a F. Definitions worker supply and demand for a match for this competition. However, a • Region, for the purpose of this persistent period of time—can mean major aspect of this undertaking is to solicitation, means an area which that particular goods and services are create regional consortia to address skill exhibits a commonality of economic not provided and that the economy is shortages that can sustain themselves interest. Thus, a region may comprise a operating less efficiently than it could. once the consortium building grant has few labor market areas, one large labor At the microeconomic level, i.e., for expired, and a substantial determining market, one labor market area joined individual employers, the inability to factor of that sustainability will be the together with one or more adjacent rural find an adequate supply of workers ‘‘ amount of resources—both cash and in districts, one or more special purpose even after offering higher wages and kind—that can be generated and districts, or one or more contiguous PICs better working conditions—can cause a leveraged by the participants in the or local boards. Clearly, if the region loss of business and profits. consortium. Sustainability is an involves multiple economic or political One theme in WIA refers to regional important consideration for the full jurisdictions, it is essential that they be planning, cooperation, and cohesion. implementation of the action plan that contiguous to one another. A region may This regional consortium building will be developed as part of this project be either intrastate or interstate. initiative—with its heavy emphasis on but will be acted upon beyond the scope Although the rating criteria will provide partnership-creation—is an opportunity of this grant. A second major purpose of the more detail, it is the applicant’s to learn how to build better quality, consortia is to assess the skills responsibility to demonstrate the longer-term partnerships. Thus, one possessed by regional workers and regional nature of the area which that underlying purpose of this effort is to develop strategies for making sure those application covers. Also, a region may develop, test, and evaluate ‘‘models’’ for skills are aligned with the requirements be coterminous with a single PIC or use by States and local boards. for filling the job vacancies that exist in local board. Project Summary regional industries. With this in mind, • Persons who may have fewer it is very important that consortia educational or occupational credentials A. Purpose include a broad spectrum of means those individuals who have the ETA intends to allocate up to $9 organizations that have an educational or occupational credential million for grants to existing or understanding of regional skills needs level enumerated in section 101 (33) of emerging regional consortia, or and can provide the skills training to WIA (which, in another context, is organizations seeking to form a meet those needs. Specifically, the employed to describe an ‘‘out of school consortia, for the primary purpose of applicants are encouraged to reach out youth’’). Specifically, that definition forming a cohesive regional planning and involve groups such as labor refers to a school dropout or someone structure which has the capacity to unions, community colleges and other who has received a secondary school assess employer skill needs, determine accredited post secondary educational diploma or its equivalent but is basic the gap between those industry needs institutions, and community-based skills deficient, (as defined in WIA, sec and the skills possessed by regional organizations. 101 (4)), unemployed or workers, and develop a concrete action The result of the regional skills underemployed. plan to train regional workers to fill the assessments described above should be Part II—Statement of Work/Reporting identified skill gaps. an action plan which formulates an Requirements The first priority in making these approach for resolving particular skills awards will be to support the process of gaps that exist in the region. The action Background consortium building. Thus, a successful plan should carefully enumerate what The Conference Agreement for the applicant may be a single group which the major skills shortage occupations are Fiscal Year 1999 appropriation for Title has developed a well-conceived and in the particular area and present a IV of JTPA states that it includes $9 structured proposal that creates the detailed series of steps designed to close million for the competitions for necessary linkages with key those gaps. The action plan should be ‘‘creation of regional consortia for the organizations within a defined region to viewed as a key product of these grants. purpose of assessing employer skill form the basis of a strong consortium. Although the design and testing of needs...H. Rep No. 105–825, 105th The evidence of these linkages will be curriculum is not the central concern of Cong., 2nd Sess. (Oct. 19, 1998).’’ This a signed consortium agreement that this start up consortium building set-aside is also intended to assess the articulates the linkages being developed initiative, it is entirely appropriate and need for closing the gaps between and describes in some detail what the desirable that regional consortia that
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Having a membership will be made by a technical review shortage issues both on a regional basis that includes educational organizations panel who will evaluate the and, to the extent that the region in such as community colleges and other applications against the criteria listed question impacts upon broader national accredited post secondary education below. The panel results are advisory in shortage issues, on a national basis. As and training institutions will assist the nature and not binding on the Grant noted earlier, applicants are not consortia in formulating and testing Officer. The Government may elect to required to include a PIC or a WIB as such skills training curriculum award the grant with or without a partner, however, they are encouraged approaches. discussions with the offeror. In to do so. Many of the job vacancies that emerge situations without discussions, an This procurement does not require in the region may require substantial award will be based on the offeror’s that applicants provide a match. ETA technical skills. Therefore, it is signature on the (SF) 424, which feels strongly, however, that applicants anticipated that significant technical constitutes a binding offer. The Grant and their partners should leverage skill training may be necessary to fill Officer will make final award decisions additional resources—both Federal and those employment opportunities. Such based upon what is in the best interest non-Federal—to establish an entity technical skill training may combine of the Government. which will be strong and have ‘‘staying academic instruction with work place Rating Criteria power.’’ It is hoped that the consortium learning and instruction and training will have leveraged sufficient resources customized to the needs of specific A. Statement of Need (20 Points) to provide a viable base for continuing firms. To the extent that applicants The applicant must provide a clear its activities once the funds from this target for service persons with barriers statement describing the geographic grant award are exhausted. to employment as described by section region that the planned consortium, or 203 (b) and (c) of JTPA (in particular, C. Prospective Target Population (20 organizations seeking to form a young adults aged 18–24) who may have Points) consortia, will encompass. fewer educational or occupational What are the economic, demographic The primary goals of this initiative are credentials, it is important that they and governmental considerations that to build regional consortia and to spell out career paths which will help make this a region that should be develop viable action plans for bridging those individuals acquire high considered for funding under this SGA? the gap between the skills needed by proficiency levels that may be required In order to be acceptable, the industry and those possessed by the for some of the vacancies. description should discuss these factors regional workforce. Thus, there may be B. Reporting Requirements with precision, utilizing appropriate little, if any, actual provision of training services to individuals for the duration Once grant awards are made, the socioeconomic and statistical data. of this initial start up grant. following reports and documents will be Applicants are encouraged to utilize all Nevertheless, in describing the regional required: available data resources—e.g., expressed workforce, the applicant should develop • Quarterly Financial Reports. The hiring needs of employers in the region a clear sense of who comprises the awardee must submit to the Grant and The America’s Labor Market target population. Officer’s Technical Representative Information System—in responding to (GOTR) within the 30 days following this criterion. The description of the characteristics each quarter, two copies of a quarterly Other pertinent questions that will of those individuals the plan envisions Financial Status Report, Standard Form provide greater depth of description of serving should be clear and sufficiently (SF) 269, until such time as all funds the region’s characteristics and needs detailed to determine the potential have been expended or the period of include: What is the general business participants’ needs for workforce availability has expired. environment? What industries and development services. Documentation • Progress Reports. The awardee must occupations are growing, and which should be provided showing that a submit quarterly reports to the GOTR ones are contracting? What are the significant number of workers with within the 30 days following each characteristics of the major employers in defined skill needs are available for quarter. Two copies are to be submitted; the region? participation within the project’s defined regional area. the report will provide a detailed B. Planning Strategy, Including Strength account of activities undertaken during Applicants are strongly encouraged to of Linkages/Partnerships and include underrepresented communities the quarter. Sustainability (35 Points) • The awardee shall work with the and populations in their proposal GOTR in submitting a copy of the The applicant should enumerate who particularly those that may reside in any signed consortium agreement. The the partners (or potential partners) are Empowerment Zones and Enterprise agreement shall include a written in this endeavor and how it is Communities (EZ/ECs) in the region. In statement of operating principles and envisioned they will link together. The particular, applicants are encouraged to procedures defining roles and decision- focus of this criterion is on the plan for providing services to making processes for the consortium. structural aspects of the consortium. individuals with serious barriers to • The awardee shall work with the What kinds of inter-organizational employment such as those described by GOTR in submitting a copy of the linkages have been (are going to be) section 203 (b) and (c) of JTPA (in signed consortium action plan. created? What resource(s) is each particular, young adults aged 18–24) • Final Report. A draft final report partner willing to commit to the who may have fewer educational or which summarizes project activities and consortium? It is vitally important that occupational credentials.
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D. Prior Experience (15 Points) background in economic planning for compare to the capacity generated by Applicants should provide a detailed workforce and employment needs and the resulting consortium? What are the discussion of their specific experience related activities contemplated as part of benefits of assessing community needs in the activities contemplated by the the consortium building for this effort. and factoring in workers’ needs and Solicitation. What kinds of exposure has Also, a management plan should be attempting to calibrate those two in a the applicant had to labor market included in the proposal which comprehensive plan? analysis and/or economic planning describes how a grant of this sort would This section should also provide some including the use of economic and be administered together with specific discussion of what leveraged resources demographic data to identify skill management experience possessed by will be committed to the project, shortage occupations? The application grantee staff. specifying the nature of those should also enumerate experience in E. Cost Effectiveness (10 Points) resources—e.g., Federal, non Federal, developing strategies for addressing cash or in kind, capital equipment. such shortages. Also, applicant should Applicants must provide a detailed Signed this date, September 8, 1999 at detail any background that it has in discussion of the expected cost Washington, DC. coalition or organization building work. effectiveness of their proposal. This The applicant should include resumes discussion should be couched in terms Laura A. Cesario, of key staff who are proposed for this of the reasonableness of the cost in Grant Officer. section. It may well be that individual relation to the activities planned.—e.g., Appendices staff members do not have much the consortium building activities. What experience in consortium-building expenses will be incurred in terms of Appendix A: (SF) 424—Application For activities for workforce training. bringing the concerned parties together Federal Assistance Therefore, it will be acceptable to show in collaborative, cooperative partnership Appendix B: Budget Information Form that the key staff has substantial arrangements? How do these expenses BILLING CODE 4510±30±P
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[FR Doc. 99–23689 Filed 9–10–99; 8:45 am] BILLING CODE 4510±30±C
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DEPARTMENT OF LABOR IV. Notification of Designation/ opportunity, societal and other barriers Nondesignation exist within predominantly INA Employment and Training V. Special Designation Situations communities and among INA groups Administration VI. Designation Process Glossary residing in other communities. The Introduction: Scope and Purpose of nature of this program is such that Workforce Investment Act: Indian and Notice Indians and Native Americans are best Native American Employment and served by a responsible Indian and Section 166 of the Workforce Training Programs; Solicitation for Native American organization directly Grant Applications: Final Grantee Investment Act (WIA) authorizes representing them, with the Designation Procedures for Program programs to serve the employment and demonstrated knowledge and ability to Years 2000 and 2001 training needs of Indians and Native coordinate resources within the Americans. respective communities. The WIA and AGENCY: Employment and Training Requirements for these programs are Administration, Labor. the governing regulations establish a set forth in the Act, and in the WIA priority for Indian and Native American ACTION: Notice of final designation section 166 regulations at 20 CFR part organizations. That priority is the basis procedures for grantees. 668, published at 64 FR 18622, 18736 for the steps which will be followed in (April 15, 1999). The specific eligibility SUMMARY: designating grantees. This document contains the and application requirements for procedures by which the Department of (3) A Federally-recognized tribe, band designation are set forth at 20 CFR part or group on its reservation, and Alaska Labor (DOL) will select and designate 668, subpart B. Pursuant to these service providers for Program Years Native entities defined in the Alaska requirements, the Department of Labor Native Claims Settlement Act (ANCSA) 2000 and 2001 for Indian and Native (DOL) selects entities for funding under American Employment and Training or consortia that include a tribe or an WIA, section 166 for a two-year entity are given highest priority over Programs under the Workforce designation period. Designated Native Investment Act. Grantees or potential any other organization if they have the American section 166 service providers capability to administer the program eligible providers participating in Public will be funded annually during the Law 102–477 Demonstration Projects and meet all eligibility and regulatory designation period, contingent upon all requirements. This priority applies only must apply for designation if they wish other grant award requirements being to receive WIA funds. This law allows to the areas over which the met and the continuing availability of organizations have legal jurisdiction. Federally-recognized tribes to Federal funds. consolidate their formula-funded In the event that such a tribe, band or The Notice of Intent (see Part II, group (including an Alaska Native employment and training and related below) is mandatory for all applicants. entity) is not designated to serve its dollars under a single service plan Any organization interested in being reservation or geographic service area, administered by the Bureau of Indian designated as a Native American section the DOL will consult with the governing Affairs. This notice provides the 166 grantee should be aware of and body of such entities when designating information that applicants need to comply with the procedures in these alternative service deliverers. Such submit appropriate requests for parts. consultation may be accomplished in designation. The amount of WIA section 166 funds writing, in person, or by telephone, as DATES: Notices of Intent must be to be awarded to designated Native time and circumstances permit. When it received in the Department by October American organizations is determined is necessary to select alternative service 1, 1999, or no later than 30 days from under procedures described at 20 CFR deliverers, the Grant Officer will, in date of publication of this solicitation in 668.296(b) and not through this accordance with 20 CFR 668.280, the Federal Register, whichever is later. designation process. whenever possible, accommodate the If not received by that Federal Register I. General Designation Principles views and recommendations of the INA publication date, Notices of Intent must community leaders and the Division of be postmarked by the U.S. Postal Based on WIA and applicable Indian and Native American Programs Service no later than that publication regulations, the following general (DINAP). date. Failure to meet this requirement principles are intrinsic to the (4) In designating Native American will disqualify the applicant from designation process: section 166 grantees for areas not further consideration. (1) All applicants for designation shall covered by the highest priority in ADDRESSES: Send a signed original and comply with the requirements found at accordance with (3) above, DOL will two copies of the Notice of Intent to Mr. 20 CFR part 668, subpart B, which designate Indian and Native American- James C. DeLuca, Chief, Division of contains the basic eligibility, controlled organizations as service Indian and Native American Programs, application, and designation providers. This would include the group Room N–4641 FPB ATTN: MIS Desk, requirements. Potential applicants referred to in (3) applying for off- U.S. Department of Labor, 200 should be aware that a non-incumbent reservation areas. As noted in (3) above, Constitution Avenue, NW, Washington, entity must have a population within when vacancies occur, the Grant Officer DC 20210. the designated geographic service area will select alternates in accordance with SUPPLEMENTARY INFORMATION: which would provide formula funding 20 CFR 668.280. under 20 CFR 668.296(b) in the amount (5) Incumbent and non-incumbent Workforce Investment Act: Indian and of at least $100,000 per program year. applicants seeking additional areas are Native American Programs; Final Federally-recognized tribes wishing to expected to clearly demonstrate a Designation Procedures for Program participate in the demonstration under working knowledge of the community Years 2000 and 2001 Public Law 102–477 must have a service that they plan to serve, including Table of Contents area and population which generates at available resources, resource utilization Introduction: Scope and Purpose of Notice least $20,000 per year in section 166 and acceptance by the service I. General Designation Principles formula funds. population. II. Notice of Intent (2) High unemployment, lack of (6) Special employment and training III. Use of Panel Review Procedure training, lack of employment services for Indian and Native American
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Competing applicants will be of the individuals served to obtain or both preserve the continuity of such notified of such competition no later retain unsubsidized employment, services and to prevent the undue than November 15, 1999, and may including the past two-year history of fragmentation of existing geographic submit revised Notices of Intent to be publically funded grants/contracts service areas. Consistent with the received by the department or administered including identification of present regulations and other provisions postmarked no later than January 5, the fund source and a contact person. of this notice, this will include priority 2000. At a minimum, revised Notices of The Grant Officer may require for those Native American organizations Intent should include the information additional, clarifying, or other with an existing demonstrated required in Part A as applicable and Part information including a site visit, prior capability to deliver employment and B. All Notices of Intent must be to designating applicants. training services within an established submitted to the Chief of DINAP at the Part B geographic service area, and for above address. organizations which directly represent If the Grant Officer determines that 2. Notice of Intent Content and there is competition for all or part of a the recipients of WIA services. Such Procedure preference will be determined through given service area, the following input and recommendations from the The information required in Part A information will be required of Chief of DOL’s Division of Indian and must be provided by all applicants. competing entities: Native American Programs (DINAP) and Additionally, competing organizations (1) Evidence that the entity represents the Director of DOL’s Office of National will be required, if notified by the Grant the community proposed for services Programs (ONP), Officer, to provide the information in such as: Demonstration of support from Native American-controlled (7) In preparing applications for Part B. organizations, State agencies, or designation, applicants should bear in Part A individuals in a position to speak to the mind that the purpose of section 166 of 1. A completed SF–424, ‘‘Application employment and training competence of WIA is ‘‘to support employment and for Federal Assistance’’, signed by the the entity in the specific area applied training activities for Indian, Alaska authorized signatory official; for; and Native, and Native Hawaiian 2. An identification of the applicant’s (2) Submission of a service plan and individuals in order— legal status, including articles of other information expanding on the (A) To develop more fully the incorporation or consortium agreement information required at Part A which academic, occupational, and literacy as appropriate; the applicant feels can strengthen its skills of such individuals; 3. A specific description of the case, including information on any (B) To make such individuals more territory being applied for, by State(s), unresolved or outstanding competitive in the workforce; and counties, reservation(s) or similar area, administrative problems. (C) To promote the economic and or service population; Exclusive of charts or graphs and social development of Indian, Alaska 4. A very brief summary, including letters of support, the additional Native, and Native Hawaiian the funding source, contact person and information submitted to augment the communities in accordance with the phone number of the employment and Notice of Intent in a situation involving goals and values of such communities.’’ training or human resource competition should not exceed 75 pages development programs serving Native of double-space unreduced type. II. Notice of Intent Americans that the entity currently Incumbent and non-incumbent 1. Dates and Address for Submittal operates or has operated within the Federally-recognized tribes and Alaska previous two-year period; entities need not submit evidence of Send a signed original and two copies 5. A brief description of the planning support regarding their own of the completed Notice of Intent (NOI) process used by the entity, including reservations or areas of legal to Mr. James C. DeLuca, Chief, Division involvement of the governing body and jurisdiction. However, such entities are of Indian and Native American local employers. required to provide such evidence for Programs, Room N–4641 FPB, ATTN: 6. Evidence to establish an entity’s any area which they wish to serve MIS Desk, U.S. Department of Labor, ability to administer funds under 20 beyond their reservation boundaries, or 200 Constitution Ave., NW., CFR 668.220 and 668.230 which should their Congressionally-mandated or Washington, DC 20210. at a minimum include: Federally-established service areas. Notices of Intent which comply with (a) A statement that fraud or criminal All applicants for non-contiguous the requirements of this solicitation activity has not been found in the geographic service areas must prepare a must be received by or postmarked by organization, OR a brief description of separate, complete Notice of Intent October 1, 1999, or 30 days from date the circumstance where it has been (including the above-referenced of publication of this solicitation in the found and a description of resolution, supplementary information if Federal Register, whichever is later. corrective action and current status, applicable) for each such area. NOIs not received by the publication AND deadline will be accepted only with an (b) A narrative demonstrating that an III. Use of Panel Review Procedure official, U.S. Postal Service postmark entity has or can acquire the necessary An initial review of all applicants, indicating timely submission. Dates program and management personnel to conducted by DINAP and with the indicating submission by private safeguard federal funds and effectively concurrence of the Grant Officer, will express delivery service or by metered deliver program services that support identify priority applicants and
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Points
1. (a) Previous experience in successfully operating an employment and training program serving Indians and Native Americans, OR (b) Previous experience in operating other human resources development programs serving Indians or Native Americans or coordi- nating employment and training services...... 20 2. Approach to providing services including: Identification of the training and employment problems and needs in the requested area and approach to addressing such needs and demonstration of the ability to maintain continuity of services to Indian or Native Amer- ican participants consistent with those previously provided in the community ...... 40 3. Description of Planning Process including involvement of community leaders, involvement with local Workforce Investment Boards and Youth Councils, etc ...... 15 4. Coordination, linkages and the ability to utilize existing resources within the community, including one-stop systems (as applicable), to eliminate duplication of effort ...... 15 5. Demonstration of support and recognition of the Native American community and service population ...... 10
Total ...... 100
IV. Notification of Designation/ may make the designation applicable to Claims Settlement Act (ANCSA); (b) the Nondesignation all of the area requested, a portion of the boundaries of major sub-regional areas area requested, or if acceptable to the where the primary provider of human The Grant Officer will make the final designee, more than the area requested. resource development related services is designation decision giving (2) Conditional Designation Letter. an Indian Reorganization Act (IRA)- consideration to the following factors: Conditional designations will include recognized tribal council; and (c) the the review panel’s recommendation, in the nature of the conditions, the actions boundaries of the one Federal those instances where a panel is required to be finally designated and the reservation in the State. Within these convened; input from DINAP, the Office time frame for such actions to be established geographic service areas, of National Programs, other offices accomplished. Failure to satisfy such DOL will designate the primary Alaska within the Employment and Training conditions may result in a withdrawal Native-controlled human resource Administration, and the DOL Office of of designation. development services provider or an the Inspector General; and any other entity formally selected by such available information regarding the (3) Non-Designation Letter. Any organization not designated, in whole or provider. In the past, these entities have organization’s financial and operational been regional nonprofit corporations, capability, and responsibility. The Grant in part, for a geographic service area requested will be notified formally of IRA-recognized tribal councils, and the Officer will select the entity that tribal government of the Metlakatla demonstrates the ability to produce the the Non-Designation and given the basic reasons for the determination. An Indian Community. DOL intends to best outcomes for its customers. follow these principles in designating Decisions will be made by March 1, applicant for designation which is refused such designation, in whole or in Native American grantees in Alaska for 2000, and will be provided to applicants Program Years 2000 and 2001. as follows: part, will be afforded the opportunity to appeal its Non-Designation as provided (1) Designation Letter. The (2) Oklahoma Indians at 20 CFR 668.270. designation letter signed by the Grant DOL has established a service Officer will serve as official notice of an V. Special Designation Situations delivery system for Indian employment organization’s designation. The letter and training programs in Oklahoma (1) Alaska Native Entities will include the geographic service area based on a preference for Oklahoma for which the designation is made. It DOL has established geographic Indian tribes and organizations to serve should be noted that the Grant Officer service areas for Alaska Native portions of the State. Generally, service is not required to adhere to the employment and training grantees based areas have been designated geographical service area requested in on the following: (a) The boundaries of geographically as countywide areas. In the Notice of Intent. The Grant Officer the regions defined in the Alaska Native cases in which a significant portion of
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49525 the land area of an individual county (1) Indian or Native American- made. In some cases, it will also show lies within the traditional jurisdiction(s) Controlled Organization the specific population to be served. of more than one tribal government, the This is defined as any organization The service area is identified by the service area has been subdivided to a with a governing board, more than 50 Grant Officer in the formal designation certain extent on the basis of tribal percent of whose members are Indians letter. Grantees must ensure that all identification information contained in or Native Americans. Such an eligible population members have the most recent Federal Decennial organization can be a tribal government, equitable access to employment and Census of Population. Wherever Native Alaska or Native Hawaiian training services within the service area. possible, arrangements mutually entity, consortium, or public or private (3) Incumbent Organizations satisfactory to grantees in adjoining or nonprofit agency. For the purpose of overlapping geographic service areas designation determinations, the Organizations which are current will be honored by DOL. Where governing board must have decision- grantees under JTPA section 401, during mutually satisfactory arrangements making authority for the WIA section PY 1999, are considered incumbent cannot be made, DOL will designate and 166 program. It should be noted that, grantees for the existing service area, for assign service area to Native American pursuant to WIA section 166(d)(2)(B), the purposes of WIA. individuals who were eligible to grantees in a manner which is Signed at Washington, DC, this third day participate under section 401 of JTPA consistent with WIA and that will of September, 1999. preserve the continuity of services and on August 6, 1998, shall be eligible to participate under WIA. Organizations Anna W. Goddard, prevent unnecessary fragmentation of Director, Office of National Programs. the programs. serving such individuals shall be considered ‘‘Indian controlled’’ for WIA James C. Deluca, VI. Designation Process Glossary section 166 purposes. Chief, Division of Indian and Native American Programs. In order to ensure that all interested (2) Service Area E. Fred Tello, parties have the same understanding of This is defined as the geographic area the process, the following definitions described as States, counties, and/or Grant Officer, Division of Federal Assistance. are provided: reservations for which a designation is BILLING CODE 4510±30±P
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[FR Doc. 99–23687 Filed 9–10–99; 8:45 am] progress made with the Corporation’s ACTION: Correcting text. BILLING CODE 4510±30±P case service reporting system. SUMMARY: This document corrects text Closed Session appearing in the subject Notice of Intent LEGAL SERVICES CORPORATION 14. Briefing by the Inspector General that was published in the Federal on the activities of the OIG. Register (63 FR 47042–47043) on Sunshine Act Meeting of the Board of 15. Briefing 1 by the President on Thursday, September 3, 1998. The Directors; Notice internal personnel and operational purpose of this correction is to add the matters. United States Bureau of Land TIME AND DATE: The Board of Directors 16. Consider and act on the General Management as a cooperating agency to of the Legal Services Corporation will Counsel’s report on potential and the project. meet on September 18, 1999. The pending litigation involving the EFFECTIVE DATE: August 3, 1999. meeting will begin at 10:00 a.m. and Corporation. continue until conclusion of the Board’s FOR FURTHER INFORMATION CONTACT: Mr. agenda. Open Session Douglas Echlin, Environmental LOCATION: The W Seattle Hotel, 1112 17. Consider and act on the proposed Protection Specialist, Environmental Fourth Avenue, Seattle Washington establishment of the office of Vice Management Division, USIBWC, 4171 98101. President for Government Relations and North Mesa Street, C–310, El Paso, Texas 79902 or call 915/832–4741. E- STATUS OF MEETING: Open, except that a Public Affairs, and the appointment of mail: [email protected]. portion of the meeting may be closed Maurico Vivero to that office. 18. Consider and act on the proposed pursuant to a vote of the Board of SUPPLEMENTARY INFORMATION: On page establishment of the office of Vice Directors to hold an executive session. 47043 of the Thursday, September 3, President for Legal Affairs, and the At the closed session, the Corporation’s 1998 Federal Register, the incorrect text appointment of Victor M. Fortuno to General Counsel will report to the Board under section 3. Scoping Process is in that office. on litigation to which the Corporation is the second column, ‘‘The United States 19. Consider and act on other or may become a party, and the Board Bureau of Reclamation and United business. States Fish and Wildlife Service have may act on the matters reported. The 20. Public Comment. closing is authorized by the relevant indicated that they will participate as CONTACT PERSON FOR INFORMATION: provisions of the Government in the cooperating agencies pursuant to 40 Victor M. Fortuno, General Counsel and Sunshine Act [5 U.S.C. 552b(c) (10)] and CFR 1501.6, to the extent possible.’’ The Secretary of the Corporation, at (202) the corresponding provisions of the correct text should read, ‘‘The United 336–8810. Legal Services Corporation’s States Bureau of Reclamation, United implementing regulation [45 CFR SPECIAL NEEDS: Upon request, meeting States Fish and Wildlife Service, and § 1622.5(h)]. A copy of the General notices will be made available in United States Bureau of Land Counsel’s Certification that the closing alternate formats to accommodate visual Management have indicated that they is authorized by law will be available and hearing impairments. Individuals will participate as cooperating agencies upon request. who have a disability and need an pursuant to 40 CFR 1501.6, to the extent accommodation to attend the meeting MATTERS TO BE CONSIDERED: possible.’’ may notify Shannon Nicko Adaway, at Dated: August 10, 1999. Open Session (202) 336–8810. William A. Wilcox, Jr., 1. Approval of agenda. Dated: September 7, 1999. Legal Advisor. 2. Approval of minutes of the Board’s Victor M. Fortuno, [FR Doc. 99–23678 Filed 9–10–99; 8:45 am] meeting of June 12, 1999. General Counsel. BILLING CODE 4710±03±P 3. Approval of minutes of the [FR Doc. 99–23892 Filed 9–9–99; 1:07 pm] executive session of the Board’s meeting BILLING CODE 7050±01±P of June 12, 1999. 4. Public Speakers. FEDERAL MINE SAFETY AND HEALTH 5. Chairman’s Report. INTERNATIONAL BOUNDARY AND REVIEW COMMISSION 6. Members’ Report. WATER COMMISSION, UNITED 7. President’s Report Sunshine Act Meeting 8. Inspector General’s Report. STATES AND MEXICO 9. Consider and act on the report of September 8, 1999. United States Section; Correction of the Board’s Finance Committee. TIME AND DATE: 11:00 a.m., Tuesday, Notice of Intent To Prepare an 10. Consider and act on the report of September 7, 1999. Environmental Impact Statement for the Board’s Committee on Provision for The El Paso-Las Cruces Regional PLACE: Room 6005, 6th Floor, 1730 K the Delivery of Legal Services. Street, NW, Washington, DC. 11. Establish the Board’s 1999 Annual Sustainable Water Project Sierra and Ä STATUS Performance Reviews Committee to Dona Ana Counties, New Mexico and : Closed [Pursuant to 5 U.S.C. conduct the 1999 annual performance El Paso County, Texas 552b(c)(10)]. appraisals of the Corporation’s President AGENCY: United States Section, MATTERS TO BE CONSIDERED: It was and its Inspector General. International Boundary and Water determined by a unanimous vote of the 12. Report on the status of the special Commission, United States and Mexico. Commission that the Commission panel established to study and report to consider and act upon the following in the board on issues relating to LSC 1 Any portion of the closed session consisting closed session: grantees’ representation of legal alien solely of staff briefings does not fall within the 1. Secretary of Labor on behalf of workers and the requirement that they Sunshine Act’s definition of the term ‘‘meeting’’ Bernardyn v. Reading Anthracite Co., and, therefore, the requirements of the Sunshine be ‘‘present in the United States .’’ Act do not apply to any such portion of the closed Docket Nos. PENN 99–158–D and PENN 13. Report by the President and session. 5 U.S.C. 552(b) (a)(2) and (b). See also 45 99–129–D (Issues include request to Inspector General on the status of and CFR § 1622.2 & 1622.3 vacate or stay judge’s order dissolving
VerDate 18-JUN-99 19:14 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49529 previously issued temporary For facilities that are in compliance with in the enclosed safety evaluation. The reinstatement order). [section] 50.46(b), the amount of hydrogen staff’s evaluation is summarized below. No earlier announcement of the contributed by core metal-water reaction The underlying purpose of 10 CFR meeting was possible. (percentage of fuel cladding that reacts with water), as a result of degradation, but not 50.44 is to ensure that following a CONTACT PERSON FOR MORE INFORMATION: total failure, of emergency core cooling LOCA, an uncontrolled hydrogen- Jean Ellen (202) 653–5629/(202) 708– functioning shall be assumed either to be five oxygen recombination would not take 9300 for TDD Relay/1–800–877–8339 times the total amount of hydrogen place, or that the plant could withstand for toll free. calculated in demonstrating compliance with the consequences of uncontrolled [section] 50.46(b)(3), or to be the amount that Jean H. Ellen, hydrogen-oxygen recombination would result from reaction of all the metal in without loss of safety function. The Chief Docket Clerk. the outside surfaces of the cladding cylinders [FR Doc. 99–23961 Filed 9–9–99; 3:49 pm] surrounding the fuel (excluding the cladding licensee demonstrated that the plant could withstand the consequences of BILLING CODE 6735±01±M surrounding the plenum volume) to a depth of 0.00023 inch (0.0058 mm), whichever uncontrolled hydrogen-oxygen amount is greater. recombination without loss of safety function without credit for the hydrogen NUCLEAR REGULATORY III recombiners or the hydrogen purge COMMISSION The licensee proposed to remove system for both the design-basis and the [Docket Nos. 50±361 and 50±362] hydrogen control requirements from the more limiting severe accident with up to SONGS Units 2 and 3 design basis. The 75 percent metal-water reaction that Southern California Edison Co., (San licensee stated that the hydrogen control remains in-vessel scenario. Several risk Onofre Nuclear Generating Station, requirements in the SONGS design basis studies, such as NUREG–1150, ‘‘Severe Units 2 and 3); Exemption are not required to provide assurance Accident Risk: An Assessment for Five that the containment would not fail due I U.S. Nuclear Plants,’’ and those to combustible gas accumulation and performed by the licensee have shown Southern California Edison Company ignition during accidents where fission that the relative importance of hydrogen (SCE, or the licensee) is the holder of products would be present in the combustion for large, dry containments Facility Operating License Nos. NPF–10 containment atmosphere. The licensee with respect to containment failure to be and NPF–15, which authorize operation also proposed to modify emergency quite low. The licensee also of the San Onofre Nuclear Generating operating instructions to remove demonstrated that hydrogen Station (SONGS), Units 2 and 3. The operator action requirements for recombiners are insignificant from a licenses provide, among other things, monitoring and controlling hydrogen large, dry containment integrity that the licensee is subject to all rules, concentration in containment. perspective and the radiological regulations, and orders of the The licensee’s proposed removal of consequences remain unchanged with Commission now or hereafter in effect. the hydrogen control requirements from or without recombiners. Therefore, the These facilities consist of two the SONGS Units 2 and 3 design basis requirements for hydrogen recombiners pressurized-water reactors located at the requires an exemption from certain and the backup hydrogen purge licensee’s site in San Diego County, requirements of 10 CFR 50.44(d) and (e). capability for large, dry containments, California. By its letter dated September 10, 1998, such as SONGS Units 2 and 3, are not as supplemented July 19, 1999, the II necessary. Accordingly, the Commission licensee submitted its exemption has determined that special Regulatory requirements for the request. circumstances are present as defined in hydrogen control system are specified in IV 10 CFR 50.12(a)(2)(ii). 10 CFR 50.44 and 10 CFR Part 50, Appendix A, (General Design Criteria Section 50.12(a) of Title 10 of the VI 41, 42, and 43). Different requirements Code of Federal Regulations part 50 states that the Commission may, upon The Commission has determined that, apply to facilities according to the date pursuant to 10 CFR 50.12, the of publication of the Notice of Hearing application by any interested person or upon its own initiative, grant exemption is authorized by law, will not for the Construction Permit. With regard present an undue risk to the public to hydrogen recombiner and purge- exemptions from the requirements of the regulations of this part, which are health and safety, and is consistent with repressurization system requirements, the common defense and security, and SONGS Units 2 and 3 are subject to the (1) authorized by law, will not present an undue risk to the public health and is otherwise in the public interest. requirements of 10 CFR 50.44(e) which Therefore, the Commission hereby states: safety, and are consistent with the common defense and security, and (2) grants Southern California Edison For facilities whose notice of hearing on the Commission will not consider Company an exemption from the the application for a construction permit was granting an exemption unless special requirements of 10 CFR 50.44(d) and (e) published on or after November 5, 1970, to remove hydrogen control purging and/or repressurization shall not be circumstances are present. Section 50.12(a)(2)(ii) of 10 CFR part requirements from the SONGS Units 2 the primary means for controlling and 3 design basis. The exemption also combustible gases following a LOCA [loss-of- 50 states that special circumstances are coolant accident]. However, the capability for present when application of the allows the licensee to modify its controlled purging shall be provided. For regulation in the particular emergency operating instructions to these facilities, the primary means for circumstances would not serve the remove operator action requirements for controlling combustible gases following a underlying purpose of the rule or is not controlling hydrogen concentration in LOCA shall consist of a combustible gas necessary to achieve the underlying containment. control system, such as recombiners, that purpose of the rule. Pursuant to 10 CFR 51.32, the does not result in a significant release from Commission has determined that the containment. V granting of this exemption will have no SONGS Units 2 and 3 are also subject The staff has evaluated the licensee’s significant effect on the quality of the to 10 CFR 50.44(d) which states: analysis and documented its evaluation human environment (64 FR 48211).
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This exemption is effective upon POSTAL RATE COMMISSION Under the circumstances presented, it issuance. is imperative that the parties utilize [Docket No. C99±4] Dated at Rockville, Maryland, this 3rd day ‘‘appropriate informal inquiry methods of September 1999. Technical and Settlement Conference; to define the issues, further the For The Nuclear Regulatory Commission. Meeting exchange of information and Suzanne C. Black, explanations between the Postal Service AGENCY: Postal Rate Commission. and the complainant, and facilitate Acting Director, Division of Licensing Project Management, Office of Nuclear Reactor ACTION: Notice of technical and settlement.’’ 39 CFR 3001.85(a). Because Regulation. settlement conference. the October 1998 study and the physical [FR Doc. 99–23693 Filed 9–10–99; 8:45 am] operation of BPRS in comparison to SUMMARY: An initial technical and other mail services are central to BILLING CODE 7590±01±P settlement conference has been addressing the rate for BPRS, an scheduled in docket no. C99–4. The informal technical conference is needed NUCLEAR REGULATORY conference will address a cost study, as well as an informal settlement COMMISSION physical operation of Bulk Parcel Return conference. Complainant CSA, the Service (BPRS), potential settlement Postal Service, and other interested [Docket No. 50±271] proposals, and other issues in the parties are hereby placed on notice that docket. The conference will assist in they are expected to have individuals Vermont Yankee Nuclear Power clarifying issues and allowing the present at the conference who are Corporation; Notice of Withdrawal of settlement coordinator to respond to the thoroughly familiar with the BPRS cost Application for Amendment to Facility Commission’s request that a report on study and with the operational Operating License the potential for settlement be filed by characteristics of BPRS. CSA and the The U.S. Nuclear Regulatory September 17, 1999. Postal Service are encouraged to discuss Commission (the Commission) has DATES: The technical and settlement the issues raised by the complaint and granted the request of Vermont Yankee conference has been scheduled for to share information or proposals in Nuclear Power Corporation (the Tuesday, September 14, 1999. For time advance of the informal technical and licensee) to withdraw its April 20, 1999, and other dates, see the SUPPLEMENTARY settlement conference. application for proposed amendment to INFORMATION section. The informal technical and settlement Facility Operating License No. DPR–28 ADDRESSES: The conference will be held conference will be held September 14, for the Vermont Yankee Nuclear Power in the Commission’s hearing room at 1999, beginning at 9:30 a.m. in the Station, located in Windham County 1333 H Street NW., Suite 300, Commission’s hearing room at 1333 H Vermont. Washington, DC 20268–0001. Street NW., Washington, DC. All The proposed amendment would interested persons are welcome to FOR FURTHER INFORMATION CONTACT: Ted have revised the reactor core spiral attend the conference, but all such P. Gerarden, OCA director, at 202–789– reloading pattern such that it begins persons are placed on notice that 6838. around a source range monitor. attendance at the conference will not The Commission had previously SUPPLEMENTARY INFORMATION: The confer party status. Any interested issued a Notice of Consideration of Commission’s OCA hereby gives notice person must file pursuant to rule 20 or Issuance of Amendment published in of a technical and settlement conference 20a of the Commission’s rules (39 CFR the Federal Register on May 19, 1999 to discuss resolution of the complaint §§ 20 or 20a) in order to intervene or to (64 FR 27328). However, by letter dated filed on June 9, 1999, by the Continuity obtain limited participation status in August 18, 1999, the licensee Shippers Association (CSA). On this proceeding. superseded, in its entirety, the April 20, September 3, 1999, the Commission The Secretary of the Commission is 1999, request, thereby withdrawing the issued a notice of formal proceedings to requested to arrange for publication of proposed change. consider the complaint and provided this notice in the Federal Register. For further details with respect to this until September 17, 1999, for the parties Authority: 39 U.S.C. 3662. action, see the application for to explore settlement.1 amendment dated April 20, 1999, and The CSA complaint alleges that the Dated: September 8, 1999. the licensee’s letter dated August 18, rate for BPRS is excessive. The Margaret P. Crenshaw, 1999, which withdrew the application complaint raises issues concerning the Secretary. for license amendment. The above BPRS cost study performed by the [FR Doc. 99–23851 Filed 9–10–99; 8:45 am] documents are available for public Postal Service in October 1998, in BILLING CODE 7710±FW±P inspection at the Commission’s Public compliance with the Commission’s Document Room, the Gelman Building, recommended decision in docket no. 2120 L Street, NW., Washington, DC, MC97–4. The complaint also alleges SECURITIES AND EXCHANGE and at the local public document room similarities between BPRS and Special COMMISSION located at the Brooks Memorial Library, Standard (B) mail. The Commission 224 Main Street, Brattleboro, VT 05301. noted the Postal Service’s responses to [Investment Company Act Release No. CSA’s allegations, but determined that 23995; 812±11656] Dated at Rockville, MD., this 27th day of August 1999. there was inadequate justification for dismissal of the complaint. LSA Variable Series Trust and LSA For the Nuclear Regulatory Commission. Asset Management LLC, Notice of Richard P. Croteau, 1 Order No. 1260, Order Denying Motion of Application Project Manager, Section 2, Project United States Postal Service to Dismiss Complaint Directorate I, Division of Licensing Project and Notice of Formal Proceeding. Ordering September 7, 1999. Management, Office of Nuclear Reactor paragraph 4 designated OCA to represent the AGENCY: Securities and Exchange Regulation. interests of the general public and to act as Commission (‘‘Commission’’). settlement coordinator pursuant to rule 85 of the [FR Doc. 99–23692 Filed 9–10–99; 8:45 am] Commission’s rules of practice and procedure [39 ACTION: Notice of an application under BILLING CODE 7590±01±P CFR § 3001.85]. section 6(c) of the Investment Company
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Act of 1940 (the ‘‘Act’’) for an restrictions.1 Shares of the Funds will upon Allstate’s advisory experience and exemption from section 15(a) of the Act serve as the funding vehicles for expertise. In providing investment and rule 18f–2 under the Act, as well as variable annuity contracts and variable management evaluation services, the from certain disclosure requirements. life insurance policies offered through Manager will conduct quantitative and separate accounts (‘‘Separate qualitative analyses of the Advisers and SUMMARY OF APPLICATION: Applicants Accounts’’) of Allstate Life Insurance will consider, among other factors, each request an order to permit applicants to Company (‘‘Allstate’’) and other life Adviser’s level of expertise, relative enter into and materially amend insurance companies (owners of such performance, consistency of results, and subadvisory agreements without contracts and policies, ‘‘Owners’’). The investment discipline or philosophy. shareholder approval and to grant relief Funds are not sold directly to the The Manager will monitor the from certain disclosure requirements. public, although in the future shares of compliance of each Adviser with the APPLICANTS: LSA Variable Series Trust the Funds may also be sold to qualified investment objective and related (the ‘‘Trust’’), on behalf of its series, pension plans. The Manager is a wholly- policies and restrictions of each Fund Focused Equity Fund, Growth Equity owned subsidiary of Allstate and is an and will review the performance of each Fund, Disciplined Equity Fund, Value investment adviser registered under the Adviser and report periodically to the Equity Fund Balanced Fund, and Investment Advisers Act of 1940 Board on such performance. The Emerging Growth Domestic Equity Fund (‘‘Advisers Act’’). Manager is responsible for (collectively, the ‘‘Funds’’), and LSA 2. The Manager will serve as communicating performance Asset Management LLC (the ‘‘Manager’’) investment adviser to the Funds expectations and evaluations to each (collectively, ‘‘Applicants’’). pursuant to an investment advisory Adviser and ultimately to determine FILING DATE: The application was filed agreement entered into with the Trust whether each Advisory Agreement on June 16, 1999 and amended on (‘‘Management Agreement’’). Under the should be renewed, modified, or August 27, 1999. Management Agreement, the primary terminated. The Manager will provide HEARING OR NOTIFICATION OF HEARING: An responsibilities of the Manager, subject reports to the Board with respect to the order granting the application will be to the supervision and direction of the results of its evaluation, monitoring issued unless the Commission orders a Trust’s board of trustees (‘‘Board’’), are functions and determinations with hearing. Interested persons may request to provide the Trust with investment respect to each Adviser. a hearing by writing to the management services and to select and 4. Applicants request relief to permit Commission’s Secretary and serving contract with one or more investment the manager to enter into and materially applicants with a copy of the request, advisers (‘‘Advisers’’) to manage the amend Advisory Agreements without personally or by mail. Hearing requests Funds’ investment portfolios. Each seeking shareholder approval. The should be received by the Commission Fund currently will be advised by a requested relief will not extend to an by 5:30 p.m. on October 1, 1999, and single Adviser. Each Adviser Adviser that is an ‘‘affiliated person,’’ as should be accompanied by proof of recommended by the Manager will be defined in section 2(a)(3) of the Act, of service on applicants, in the form of an selected and approved by the Board, the Trust or the Manager, other than by affidavit, or, for lawyers, a certificate of including a majority of the trustees who reason of serving as an Adviser to one service. Hearing requests should state are not ‘‘interested persons’’ (as defined or more of the Funds (‘‘Affiliated the nature of the writer’s interest, the in section 2(a)(19) of the Act), of the Adviser’’). reason for the request, and the issues Trust, the Manager, or the Advisers 5. Applicants also request an contested. Persons who wish to be (‘‘Independent Trustees’’). Each Adviser exemption form the various disclosure notified of a hearing may request is, and any future Adviser will be, provisions described below that may notification by writing to the registered as an investment adviser require each Fund to disclose fees paid Commission’s Secretary. under the Advisers Act and will by the Manager to the Advisers. The perform services under a subadvisory ADDRESSES: Secretary, Commission, 450 Trust will disclose for each Fund (both agreement (‘‘Advisory Agreement’’) Fifth Street, NW, Washington, DC as a dollar amount and as a percentage between the Manager and the Adviser. 20549–0609; Applicants, 3100 Sanders of the Fund’s net assets): (a) Aggregate Each Adviser’s fees will be paid by the Road, Suite J5B, Northbrook, Illinois fees paid to the Manger and Affiliated Manager out of the management fees 60062. Advisers, and (b) aggregate fees paid to received by the Manager from the FOR FURTHER INFORMATION CONTACT: Advisers other than Affiliated Advisers Funds. Deepak T. Pai, Senior Counsel, at (202) (‘‘Aggregate Fee Disclosure’’) The 3. Although the Manager is a newly- 942–0574 or George J. Zornada, Branch Aggregate Fee Disclosure also will formed entity, its parent company, Chief, at (202) 942–0564, (Division of include separate disclosure of any Allstate, has extensive experience in Investment Management, Office of advisory fees paid to any Affiliated asset management and in evaluating and Investment Company Regulation). Adviser. hiring investment advisers. As a wholly- SUPPLEMENTARY INFORMATION: The owned subsidiary of Allstate, the Applicants’ Legal Analysis following is a summary of the Manager will have access to and draw application. The complete application 1. Section 15(a) of the Act provides, may be obtained for a fee at the 1 Applicants also request relief with respect to all in relevant part, that it is unlawful for Commission’s Public Reference Branch, future series of the Trust and to all subsequently any person to act as an investment 450 Fifth Street, NW, Washington, DC registered open-end management investment adviser to a registered investment 20549–0102 (telephone (202) 942–8090). companies including all series thereof that in the company except pursuant to a written future are advised by the Manger (or any entity contract that has been approved by the Applicant’s Representations controlling, controlled by, or under common control with the Manager), provided that such vote of the company’s outstanding 1. The Trust is a Delaware business companies (1) operate in substantially the same voting securities. Rule 18f–2 under the trust and is registered under the Act as manner as the Trust and (2) comply with the terms Act provides that each series or class of and conditions of the requested order (‘‘Future an open-end management investment Investment Companies’’). The Trust is the only stock in a series company affected by a company. Each Fund has its own existing investment company that currently intends matter must approve such matter if the investment objective, policies and to rely on the requested order. Act requires shareholder approval.
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2. Form N–1A is the registration this standard for the reasons discussed 3. Within ninety (90) days of the statement used by open-end investment below. hiring of any new Adviser, Owners with companies. Items 3, 6(a)(1)(ii), and 8. Applicants assert that the Owners assets allocated to any subaccount of a 15(a)(3) of Form N–1A require are relying on the Manager to select and registered Separate Account for which disclosure of the method and amount of monitor the activities of the Advisers the applicable Fund serves as a funding the investment adviser’s compensation. and to respond promptly to any medium will be furnished all 3. Form N–14 is the registration form significant change in the advisory information about the new Adviser or for business combinations involving services provided to the Funds. Advisory Agreement that would be open-end investment companies. Item 3 Applicants submit that in many included in a proxy statement, except as of Form N–14 requires the inclusion of respects, the relationship between the modified by the order to permit a ‘‘table showing the current fees for the Manager and the Advisers resembles the Aggregate Fee Disclosure. This registrant and the company being relationship between a traditionally information will include Aggregate Fee acquired and pro forma fees, if different, structured investment company and its Disclosure and any change in such for the registrant after giving effect to investment adviser, where no disclosure caused by the addition of a the transaction.’’ shareholder approval is required for the new Adviser. The Manager will satisfy 4. Rule 20a–1 under the Act requires investment adviser to change a portfolio this condition by providing these proxies solicited with respect to an manager or revise the portfolio Owners with an information statement investment company to comply with manager’s salary or conditions of meeting the requirements of Regulation Schedule 14A under the Securities employment. Applicants note that the 14C and Schedule 14C under the 1934 Exchange Act of 1934 (the ‘‘Exchange Management Agreement will remain Act and Item 22 of Schedule 14A under Act’’). Item 22(a)(3)(iv) of Schedule 14A fully subject to the requirements of the 1934 Act, except as modified permit requires a proxy statement for a section 15(a) of the Act and rule 18f–2 Aggregate Fee Disclosure. shareholder meeting at which a new fee under the Act. 4. The Manager will not enter into an 9. Applicants assert that some will be established or an existing fee Advisory Agreement with any Affiliated Advisers use a ‘‘posted’’ rate schedule to increased to include a table of the Adviser without that Advisory set their fees. Applicants believe that current and pro forma fees. Items Agremenet, including the compensation the Manger will not be able to negotiate 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8), and to paid thereunder, being approved by below ‘‘posted’’ fee rates with Advisers 22(c)(9), taken together, require a proxy the Owners with assets allocated to any if each Adviser’s fees are required to be statement for a shareholder meeting at subaccount of a registered Separate disclosed. Applicants submit that the which the advisory contract will be Account for which the applicable Fund nondisclosure of the individual voted upon to include the ‘‘rate of serves as a funding medium or by the Adviser’s fees is in the best interest of compensation of the investment shareholders in the case of a publicly the Funds and the Owners, where adviser,’’ the ‘‘aggregate amount of the available Fund. disclosure of such fees would increase investment adviser’s fee,’’ a description 5. At all times, a majority of the Board costs to Owners without an offsetting of the ‘‘terms of the contract to be acted will be Independent Trustees and the benefit to the Trust and the Owners. upon,’’ and, if a change in the advisory nomination of new or additional fee is proposed, the existing and Applicants’ Conditions Independent Trustees will continue to proposed fees and the difference Applicants agree that any order be at the discretion of the then-existing between the two fees. granting the requested relief will be Independent Trustees. 5. Form N–SAR is the semi-annual subject to the following conditions: 6. When an Adviser change is report filed with the Commission by 1. Before a Fund or a Future proposed for a Fund with an Affiliated registered investment companies. Item Investment Company may rely on the Adviser, the Board, including a majority 48 of Form N–SAR requires investment requested order, the operation of the of the Independent Trustees, will make companies to disclose the rate schedule Fund or the Future Investment a separate finding, reflected in the Board for fees paid to their investment Company will be approved by the minutes, that the change is in the best advisers, including the Advisers. Owners or a majority of the outstanding interests of the Fund and Owners with 6. Regulation S–X sets forth the voting securities or, in the case of a assets allocated to any subaccount of a requirements for financial statements Fund or a Future Investment Company registered Separate Account for which required to be included as part of whose public shareholders purchased the fund serves as a funding medium or investment company registration shares on the basis of a prospectus shareholders in the case of publicly statements and shareholder reports filed containing the disclosure contemplated available Fund and does not involve a with the Commission. Sections 6–07(2) by condition 2 below, by the sole initial conflict of interest from which the (a), (b) and (c) of Regulation S–X require shareholder(s) before offering shares of Manager or the Affiliated Adviser that investment companies include in that Fund or Future Investment derives an inappropriate advantage. their financial statements information Company to the public (or the Owners). 7. Independent counsel about investment advisory fees. 2. The Trust will disclose in the knowledgeable about the Act and the 7. Section 6(c) of the Act provides that prospectus the existence, substance, and duties of Independent Trustees will be the Commission may exempt any effect of any order granted pursuant to engaged to represent the Independent person, security, or transaction or any this application. In addition, each Fund Trustees of the Trust. The selection of class or classes of persons, securities, or relying on the requested order will hold such counsel will be within the transactions from any provision of the itself out to the public as employing the discretion of the Independent Trustees Act, or from any rule thereunder, if such management structure described in the of the Trust. exemption is necessary or appropriate application. The prospectus will 8. The Manager will provide the in the public interest and consistent prominently disclose that the Manager Board, no less frequently than quarterly, with the protection of investors and the has ultimate responsibility (subject to with information about the Manager’s purposes fairly intended by the policies oversight to the Board) to oversee the profitability on a per-Fund basis. This and provisions of the Act. Applicants Advisers and recommend their hiring, information will reflect the impact on believe that their requested relief meets termination, and replacement. profitability of the hiring or termination
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices 49533 of any Adviser during the applicable SOCIAL SECURITY ADMINISTRATION to its expanded VR referral and payment quarter. program. This contract is for a three- Agency Information Collection 9. Whenever an Adviser is hired or year demonstration project known as Activities: Proposed Request and terminated, the Manager will provide the Referral System for Vocational Comment Request the Board with information showing the Rehabilitation Providers (Project RSVP). SSA continues to be responsible for expected impact on the Manger’s In compliance with Public Law 104– awarding Alternate Participant (AP) profitability. 13, the Paperwork Reduction Act of contracts to VR providers, determining 1995, SSA is providing notice of its 10. The Manager will provide general the appropriateness of claims submitted information collections that require management services to the Trust and by APs, and reimbursing APs for the submission to the Office of Management its Funds, including overall supervisory costs of their services if the and Budget (OMB). SSA is soliciting responsibility for the general requirements for payment are met. comments on the accuracy of the management and investment of each B&D supports SSA’s efforts by agency’s burden estimate; the need for Fund’s securities portfolio and, subject marketing to and recruiting VR the information; its practical utility; providers, training providers on SSA’s to review and approval by the Board, ways to enhance its quality, utility and VR program requirements, and will: (i) Set each Fund’s overall clarity; and on ways to minimize burden operating an Information and Referral investment strategies; (ii) evaluate, on respondents, including the use of System to link providers with select, and recommend Advisers to automated collection techniques or beneficiaries. In addition, B&D will manage all or part of a Fund’s portfolio; other forms of information technology. conduct surveys of beneficiaries and (iii) allocate and, when appropriate, I. The information collections listed APs to determine customer satisfaction reallocate a Fund’s assets among below will be submitted to OMB within and to identify program areas requiring multiple Advisers; (iv) monitor and 60 days from the date of this notice. improvement. evaluate the performance of Advisers; Therefore, comments and and (v) implement procedures recommendations regarding the Information Collection reasonably designed to ensure that the information collections would be most In support of the RSVP project, SSA Advisers comply with each Fund’s useful if received by the Agency within will conduct semi-annual voluntary investment objective, policies, and 60 days from the date of this information collections of both AP’s and restrictions. publication. Comments should be Beneficiaries/Recipients (B/R). The data 11. No trustee/director of officer of the directed to the SSA Reports Clearance collection effort will be conducted in Officer at the address listed at the end Trust or director or office of the Manger survey format and has four goals: of this publication. You can obtain a will own directly or indirectly (other 1. To help program administrators copy of the collection instruments by than through a pooled investment understand the reasons for varying calling the SSA Reports Clearance levels of satisfaction with the program; vehicle that is not controlled by that Officer on (410) 965–4145, or by writing trustee/director or office) any interest in 2. To help program administrators to him at the address listed at the end understand the potential causes for any Adviser except for: (i) Ownership of of this publication. interests in the Manager or any entity varying levels of success of the program; that controls, is controlled by, or is 1. Referral System for Vocational 3. To guide program change; and 4. If under common control with the Manger; Rehabilitation Providers 0960—NEW necessary, to plan continuation of the or (ii) ownership of less than 1% of the program after the initial trial period. Background Through these voluntary surveys, SSA outstanding securities of any class of In 1996 the Social Security will collect three types of data: equity or debt of a publicly-traded Administration (SSA) initiated an 1. Descriptive data that describe the company that is either an Adviser or an innovative expansion of its vocational B/R and data that describe the APs’ entity that controls, is controlled by, or rehabilitation (VR) referral and payment vocational rehabilitation practice that is under common control with an program. Under this program, SSA pays are not available and are necessary to Adviser. VR providers for the costs of VR services evaluate respondents’ satisfaction in the 12. The Trust will disclose in its provided to disability beneficiaries, if context of their actual experience; 2. registration statement the Aggregate Fee such services result in the individual Quantitative data on B/R and AP Disclosure. going to work at a specified earnings satisfaction with the program; and 3. level for at least nine months. Free-text comments by B/Rs and APs For the Commission, by the Division of Investment Management, under delegated Throughout this project, SSA has regarding their experience with the authority. expanded its VR program to increase the program. base of providers who are available to The data will be aggregated for all B/ Margaret H. McFarland, serve people with disabilities. By Rs and for all APs. A semi-annual report Deputy Secretary. increasing this base, more people will will be generated for SSA. The [FR Doc. 99–23747 Filed 9–10–99; 8:45 am] be able to get the services they need to information will be used by AP program BILLING CODE 8010±01±M go to work, become independent of the administrators at SSA and by B&D benefit rolls, and thus achieve savings to project management staff. The SSA’s trust funds. respondents will be SSI/SSDI In September 1997, SSA contracted beneficiaries and APs under contract with Birch & Davis Associates, Inc. with SSA to provide vocational (B&D), to provide management support rehabilitation services to beneficiaries.
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Average bur- Number of Frequency of den per re- Estimated Survey form respondents response sponse (min- annual bur- utes) den (hours)
Survey for APs who have submitted claims ...... 12 2 20 8 Survey for APs who have not submitted a claim ...... 314 2 20 210 Survey for B/Rs who have signed a Rehabilitation or Employment Plan ...... 44 2 20 30 Survey for B/Rs who have not signed a Rehabilitation or Employment Plan ...... 2,000 2 20 1,334
Total Annual Burden Hours Requested ...... 1,582
2. Statement of Income and the OMB clearance packages by calling and demonstration priorities of Task Resources—0960–0124. The information the SSA Reports Clearance Officer on Force member agencies related to collected by the Social Security (410) 965–4145, or by writing to him. employment of adults with disabilities.’’ Administration on Form SSA–8010 is 1. Application for Supplemental To comply with the E.O., SSA necessary in the SSI eligibility/payment Security Income-0960–0444. The released cooperative agreement process. Information about the income information collected on the SSA–8001 announcements in 1998 to and resources of ineligible spouses/ is used by the Social Security approximately 650 State agencies parents/children and sponsors of aliens Administration to determine whether nationwide to conduct demonstration is used in the ‘‘Deeming’’ process. applicants for SSI benefits meet all projects that assist States in developing ‘‘Deeming’’ is the attribution of statutory and regulatory requirements service delivery models that increase another’s income to an eligible for eligibility and, if so, the amount of the rates of gainful employment of individual/child/alien. The respondents benefits payable. The respondents are people with disabilities. Eighteen State are ineligible spouses, parents, and applicants for SSI benefits. agencies have been selected to children who live in the same Number of Respondents: 1,011,046. participate in the demonstration household as an eligible individual/ Frequency of Response: 1. projects. child, and sponsors of aliens. Average Burden Per Response: 15 SSA has employed a monitoring and Number of Respondents: 355,000. minutes. Frequency of Response: 1. Estimated Annual Burden: 252,762 technical assistance contractor, Virginia Average Burden Per Response: 25 hours. Commonwealth University (VCU) to minutes. 2. 0960–NEW. State Partnership collect information from the State Estimated Annual Burden: 147,917 Initiative (SPI) Cooperative Agreements. awardees’ databases on behalf of SSA. hours. Executive Order (E.O.) 13078 dated VCU will use the information to II. The information collections listed March 13, 1998, Increasing Employment evaluate whether and to what extent the below have been submitted to OMB for of Adults With Disabilities, orders that service delivery models achieve the clearance. Written comments and a National Task Force be established to overall goals of the demonstration recommendations on the information create a coordinated and aggressive projects and will report project results collections would be most useful if national policy to bring adults with to SSA. SSA will use the results to received within 30 days from the date disabilities into gainful employment at conduct a net outcome evaluation to of this publication. Comments should be a rate that is as close as possible to that determine the long term effectiveness of directed to the SSA Reports Clearance of the general adult population. E.O. the interventions. Officer and the OMB Desk Officer at the 13078 specifies that the Task Force Following is a table that outlines the addresses listed at the end of this ‘‘evaluate and, where appropriate, public reporting burden of State publication. You can obtain a copy of coordinate and collaborate on, research agencies for this project:
Average Estimated Frequency of burden per annual Title of collection Number of responses response response burden (minute(s)) (hour(s))
Demonstration Site Form ...... 16 (electronic) ...... One Time ...... 1 .3 2 (manual) ...... One Time ...... 1 .1 Participant Demographic Data Form ...... 3,080 (electronic) ...... One Time ...... 15 770 300 (manual) ...... One Time ...... 20 100 Participant Employment Data Form ...... 3,080 (electronic) ...... One Time ...... 5 257 300 (manual) ...... One Time ...... 7 35 Participant Update Form ...... 3,080 (electronic) ...... Quarterly ...... 4 821 300 (manual) ...... Quarterly ...... 5 100 Change in Employment Status ...... 1,540 (electronic) ...... (1) ...... 3 77 150 (manual) ...... (1) ...... 4 10 State Quarterly and ...... 72 ...... Quarterly ...... (2) 18 State Semiannual and ...... 36 ...... Semiannual .... (2) 9 Annual Reports ...... 18 ...... Annual ...... (2) 4.5 Stakeholder Interviews ...... 50 ...... Varies per 10 8.3 Stakeholder.
Total ...... 2,210.2 1 Completed only if employment changes. 2 15 minutes for each report.
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(SSA Address), Social Security Dated: September 8, 1999. meeting will be open to the public and Administration, DCFAM, Attn: Edward S. Christenbury, press from 9:15 a.m. to 12:00 p.m., and Frederick W. Brickenkamp, 6401 General Counsel and Secretary. again from 1:45 p.m. to 2:45 p.m. when Security Blvd., 1–A–21 Operations [FR Doc. 99–23910 Filed 9–9–99; 2:19 pm] other trade policy issues will be Bldg., Baltimore, MD 21235. BILLING CODE 8120±08±M discussed. Attendance during this part (OMB Address), Office of Management of the meeting is for observation only. and Budget, OIRA, Attn: Lori Schack, Individuals who are not members of the New Executive Office Building, Room OFFICE OF THE UNITED STATES committees will not be invited to 10230, 725 17th St., NW, Washington, TRADE REPRESENTATIVE comment. DC 20503. Pate Felts, Dated: September 7, 1999. Notice of Meeting of the Industry Acting Assistant United States Trade Frederick W. Brickenkamp, Sector Advisory Committee on Small Representative, Intergovernmental Affairs Reports Clearance Officer, Social Security and Minority Business (ISAC±14) and Public Liaison. Administration. [FR Doc. 99–23778 Filed 9–10–99; 8:45 am] AGENCY: Office of the United States BILLING CODE 3190±01±M [FR Doc. 99–23703 Filed 9–10–99; 8:45 am] Trade Representative. BILLING CODE 4190±29±P ACTION: Notice of meeting.
SUMMARY: The Industry Sector Advisory DEPARTMENT OF TRANSPORTATION TENNESSEE VALLEY AUTHORITY Committee on Small and Minority Office of the Secretary Business (ISAC–14) will hold a meeting Sunshine Act Meeting on September 13, 1999, from 9:15 a.m. Aviation Proceedings, Agreements AGENCY HOLDING THE MEETING: Tennessee to 2:45 p.m. The meeting will be open Filed During the Week Ending Valley Authority (Executive Meeting to the public from 9:15 a.m. to 12:00 September 3, 1999 No. 3). noon and again from 1:45 p.m. to 2:45 p.m. and closed to the public from 12:00 The following Agreements were filed TIME AND DATE: 9 a.m. (EDT), September with the Department of Transportation 15, 1999. to 1:45 p.m. DATES: The meeting is scheduled for under the provisions of 49 U.S.C. PLACE: TVA Knoxville West Tower Sections 412 and 414. Answers may be Auditorium, 400 West Summit Hill September 13, 1999, unless otherwise notified. filed within 21 days of date of filing. Drive, Knoxville, Tennessee. Docket Number: OST–99–6202. STATUS: Open. ADDRESSES: The meeting will be held at Date Filed: September 3, 1999. the Department of Commerce, Room Parties: Members of the International Agenda 4830, located at 14th Street and Air Transport Association. New Business Constitution Avenue, NW, Washington, Subject: PTC COMP 0501 dated 31 DC, unless otherwise notified. August 1999, Composite Resolutions, A—Budget and Financing FOR FURTHER INFORMATION CONTACT: Minutes—PTC COMP 0502 and 0503 A1. Approval of power system Millie Sjoberg or Cory Churches, dated 31 August 1999, Intended operating and capital budgets for Fiscal Department of Commerce, 14th St. and effective date: 1 April 2000. Year 2000. Constitution Ave., NW, Washington, DC Dorothy W. Walker, A2. Approval of short-term borrowing 20230, (202) 482–4792 or Ladan Federal Register Liaison. from the Treasury. Manteghi, Office of the United States [FR Doc. 99–23732 Filed 9–10–99; 8:45 am] Trade Representative, 1724 F St, NW, C—Energy BILLING CODE 4910±62±P Washington, DC 20508, (202) 395–6120. C1. Contract with Bechtel Power SUPPLEMENTARY INFORMATION: The Corporation for installation of the ISAC–14 will hold a meeting on DEPARTMENT OF TRANSPORTATION replacement steam generators at September 13, 1999 from 9:15 a.m. to Sequoyah Nuclear Plant Unit 1. 2:45 p.m. The meeting will include a National Highway Traffic Safety Information Items review and discussion of current issues Administration 1. Filing of condemnation cases which influence U.S. trade policy. Pursuant to Section 2155(f)(2) of Title Research and Development Programs concerning the Charleston District- Meeting Agenda Riceville Transmission line in McMinn 19 of the United States Code and County, Tennessee, and the Wheeler Executive Order 11846 of March 27, AGENCY: National Highway Traffic Dam-Guntersville Dam Transmission 1975, the Office of the U.S. Trade Safety Administration, DOT. line in Morgan County, Alabama. Representative has determined that part ACTION: Notice. 2. Approval of renegotiation and of this meeting will be concerned with extension of coal purchase contract with matters the disclosure of which would SUMMARY: This notice provides the Peabody COALSALES Company. seriously compromise the development agenda for a public meeting at which 3. Approval of renegotiation of coal by the United States Government of the National Highway Traffic Safety purchase contract with Coastal Coal trade policy, priorities, negotiating Administration (NHTSA) will describe Company, LLC. objectives or bargaining positions with and discuss specific research and 4. Approval of TVA contribution rate respect to the operation of any trade development projects. to the TVA Retirement System for Fiscal agreement and other matters arising in DATES AND TIMES: As previously Year 2000. connection with the development, announced, NHTSA will hold a public For more information: Please call implementation and administration of meeting devoted primarily to TVA Public Relations at (423) 632–6000, the trade policy of the United States. presentations of specific research and Knoxville, Tennessee. Information is During the discussion of such matters, development projects on September 16, also available at TVA’s Washington the meeting will be closed to the public 1999, beginning at 1:30 p.m. and ending Office (202) 898–2999. from 12:00 noon to 1:45 p.m. The at approximately 5 p.m.
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ADDRESSES: The meeting will be held at Associate Administrator for Research reason(s) for delay and the expected the Tysons Westpark Hotel, 8401 and Development, National Highway completion date for action on each Westpark Drive, McLean, Virginia. Traffic Safety Administration, NRD–01, application is provided in association SUPPLEMENTARY INFORMATION: This Washington, DC 20590. Fax number: with each identified application. notice provides the agenda for the 202–366–5930. FOR FURTHER INFORMATION CONTACT: J. twenty-fourth in a series of public FOR FURTHER INFORMATION CONTACT: Rita Suzanne Hedgepeth, Director, Office of meetings to provide detailed I. Gibbons, Staff Assistant, Office of Hazardous Materials, Exemptions and information about NHTSA’s research Research and Development, 400 Approvals, Research and Special and development programs. This Seventh Street, SW, Washington, DC Programs Administration, U.S. meeting will be held on September 16, 20590. Telephone: 202–366–4862. Fax Department of Transportation, 400 1999. The meeting was announced on number: 202–366–5930. Seventh Street, SW, Washington, DC August 11, 1999 (64 FR 43811). For Issued: September 8, 1999. 20590–0001, (202) 366–4535. additional information about the meeting, consult that announcement. Raymond P. Owings, Key to ‘‘Reasons for Delay’’ Starting at 1:30 p.m. and concluding Associate Administrator for Research and Development. 1. Awaiting additional information from by 5 p.m., NHTSA’s Office of Research applicant [FR Doc. 99–23712 Filed 9–10–99; 8:45 am] and Development will discuss the 2. Extensive public comment under following topics: BILLING CODE 4910±59±P review International Harmonized Research 3. Application is technically complex Activities (IHRA) including: (1) IHRA DEPARTMENT OF TRANSPORTATION and is of significant impact or Overview and (2) Status Reports on the precedent-setting and requires following IHRA Working Groups: (a) Research and Special Programs extensive analysis Biomechanics, (b) Side Impact, (c) Administration 4. Staff review delayed by other priority Frontal Impact Protection/ issues or volume of exemption Compatibility, and (d) Intelligent Office of Hazardous Materials Safety; applications Transportation Systems. Notice of Delays in Processing of NHTSA has based its decisions about Exemption Applications Meaning of Application Number the agenda, in part, on the suggestions Suffixes it received in response to the AGENCY: Research and Special Programs N—New application announcement published August 11, Administration, DOT. M—Modification request 1999. ACTION: List of Applications Delayed PM—Party to application with As announced on August 11, 1999, in more than 180 days. the time remaining at the conclusion of modification request the presentations, NHTSA will provide SUMMARY: In accordance with the Issued in Washington, DC, on September 7, answers to questions on its research and requirements of 49 U.S.C. 5117(a) RSPA 1999. development programs, where those is publishing the following list of J. Suzanne Hedgepeth, questions have been submitted in exemption applications that have been Director, Office of Hazardous Materials, writing to Raymond P. Owings, Ph.D., in process for 180 days or more. The Exemptions and Approvals.
NEW EXEMPTION APPLICATIONS
Reason for Estimated date Application number Applicant delay of completion
11699±N ...... GEO Specialty Chemicals, Bastrop, LA ...... 4 9/30/1999 11767±N ...... Ausimont USA, Inc., Thorofare, NJ ...... 4 9/30/1999 11862±N ...... The BOC Group, Murray Hill, NJ ...... 4 9/30/1999 11927±N ...... Alaska Marine Lines, Inc., Seattle, WA ...... 4 9/30/1999 12029±N ...... NACO Technologies, Lombard, IL ...... 4 9/30/1999 12106±N ...... Air Liquide America Corporation, Houston, TX ...... 4 9/30/1999 12123±N ...... Eastman Chemical Co., Kingsport, TN ...... 4 9/30/1999 12125±N ...... Mayo Foundation, Rochester, MN ...... 4 9/30/1999 12126±N ...... LaRoche Industries, Inc., Atlanta, GA ...... 4 9/30/1999 12138±N ...... Gas Supply Resources, Inc., Albany, NY ...... 4 10/29/1999 12142±N ...... Aristech Chemical Corp., Pittsburgh, PA ...... 4 9/30/1999 12146±N ...... Luxfer Gas Cylinders, Riverside, CA ...... 4 9/30/1999 12148±N ...... Eastman Kodak Company, Rochester, NY ...... 4 9/30/1999 12156±N ...... Columbia Falls Aluminum Co., Columbia Falls, MT ...... 4 9/30/1999 12158±N ...... Hickson Corporation, Conley, GA ...... 4 9/30/1999 12164±N ...... Rhodia Inc., Shelton, CT ...... 4 9/30/1999 12166±N ...... Dow Corning Corp., Midland, MI ...... 4 9/30/1999 12171±N ...... Arichell Technologies, Inc., West Newton, MA ...... 4 9/30/1999 12181±N ...... Aristech, Pittsburgh, PA ...... 4 9/30/1999 12203±N ...... Celanese Ltd., Dallas, TX ...... 4 9/30/1999 12205±N ...... Independent Chemical Corp., Glendale, NY ...... 4 9/30/1999 12206±N ...... General Electric Silicones, Waterford, NY ...... 4 9/30/1999 12220±N ...... d/b/a Laird Farms, Waterloo, NY ...... 4 10/29/1999 12230±N ...... Chemtran Services USA, Inc., Houston, TX ...... 4 9/30/1999 12238±N ...... Eastman Kodak Co., Rochester, NY ...... 4 10/29/1999
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MODIFICATIONS TO EXEMPTIONS
Reason for Estimated date Application number Applicant delay of completion
6611±M ...... Gardner Cryogenics, Lehigh Valley, PA ...... 4 9/30/1999 6765±M ...... Gardner Cryogenics, Lehigh Valley, PA ...... 4 10/29/1999 8723±M ...... Buckley Powder Company, Englewood, CO ...... 4 9/30/1999 266±M ...... ERMEWA, Inc., Houston, TX ...... 4 10/29/1999 10480±M ...... Gardner Cryogenics, Lehigh Valley, PA ...... 4 10/29/1999 10921±M ...... The Procter & Gamble Company, Cincinnati, OH ...... 4 9/30/1999 10929±M ...... Consolidated Rail Corporation, Philadelphia, PA ...... 4 9/30/1999 10977±M ...... Federal Industries Corporation, Plymouth, MN ...... 4 9/30/1999 11327±M ...... Phoenix Services Limited Partnership, Pasadena, MD .. 4 9/30/1999 11526±M ...... BOC Gases, Murray Hill, NJ ...... 4 9/30/1999
[FR Doc. 99–23801 Filed 9–10–99; 8:45 am] is void ab initio. Petitions to revoke the Departmental Offices/Assistant BILLING CODE 4910±60±M exemption under 49 U.S.C. 10502(d) Secretary for International Affairs/ may be filed at any time. The filing of Office of Program Services a petition to revoke will not OMB Number: 1505–0123. DEPARTMENT OF TRANSPORTATION automatically stay the transaction. Form Number: TD F 90–19.1 and TD An original and 10 copies of all Surface Transportation Board F 90–19.2. pleadings, referring to STB Finance Type of Review: Reinstatement. [STB Finance Docket No. 33794] Docket No. 33794, must be filed with Title: Survey of Foreign Portfolio the Surface Transportation Board, Office Investment in the United States. Boston and Maine Corporation and of the Secretary, Case Control Unit, 1925 Description: This survey determines Springfield Terminal Railway K Street, NW, Washington, DC 20423– the level of foreign portfolio investment CompanyÐTrackage Rights 0001. In addition, one copy of each in the United States, the types of ExemptionÐMilford-Bennington pleading must be served on Robert B. investors, and foreign investment Railroad Company Culliford, Esq., Iron Horse Park, North patterns. The data is used for policy Milford-Bennington Railroad Billerica, MA 10862. formulation, the computation of the U.S. Company (MBR) has agreed to grant Board decisions and notices are balance of payments and international overhead trackage rights to Boston and available on our website at investment position, and to satisfy 22 Maine Corporation and Springfield ‘‘WWW.STB.DOT.GOV.’’ U.S.C. 3101. The affected public Terminal Railway Company (B&M/ST) By the Board, David M. Konschnik, consists of major U.S. corporations. between approximately milepost N– Director, Office of Proceedings. Respondents: Business or other for- 16.36, in Wilton, NH, and Decided: September 7, 1999. profit, Federal Government. Estimated Number of Respondents/ approximately milepost 19.67, in Vernon A. Williams, Lyndeboro, NH.1 Recordkeepers: 1,200. Secretary. Estimated Burden Hours Per The parties report that they intend to [FR Doc. 99–23779 Filed 9–10–99; 8:45 am] consummate the transaction on or about Respondent/Recordkeeper: 50 hours. September 3, 1999. The earliest the BILLING CODE 4915±00±P Frequency of Response: Other transaction can be consummated is (approximately every 5 years). September 6, 1999, the effective date of Estimated Total Reporting/ the exemption (7 days after the Recordkeeping Burden: 60,000 hours. DEPARTMENT OF THE TREASURY Clearance Officer: Lois K. Holland, exemption was filed). (202) 622–1563, Departmental Offices, The purpose of the trackage rights is Submission for OMB Review; Room 2110, 1425 New York Avenue, to allow B&M/ST to serve a customer in Comment Request Milford, NH. NW, Washington, DC 20220. As a condition to this exemption, any September 2, 1999. OMB Reviewer: Alexander T. Hunt, employees affected by the trackage The Department of Treasury has (202) 395–7860, Office of Management rights will be protected by the submitted the following public and Budget, Room 10202, New conditions imposed in Norfolk and information collection requirement(s) to Executive Office Building, Washington, Western Ry. Co.—Trackage Rights—BN, OMB for review and clearance under the DC 20503. 354 I.C.C. 605 (1978), as modified in Paperwork Reduction Act of 1995, Lois K. Holland, Mendocino Coast Ry., Inc.—Lease and Public Law 104–13. Copies of the Departmental Reports Management Officer. Operate, 360 I.C.C. 653 (1980). submission(s) may be obtained by [FR Doc. 99–23780 Filed 9–10–99; 8:45 am] This notice is filed under 49 CFR calling the Treasury Bureau Clearance BILLING CODE 4810±25±P 1180.2(d)(7). If it contains false or Officer listed. Comments regarding this misleading information, the exemption information collection should be addressed to the OMB reviewer listed DEPARTMENT OF THE TREASURY 1 While the verified notice of exemption states and to the Treasury Department that the term of the trackage rights agreement will Clearance Officer, Department of the Submission for OMB Review; be for two years from August 20, 1999, trackage Comment Request rights approved under the class exemption Treasury, Room 2110, 1425 New York normally remain effective indefinitely regardless of Avenue, NW., Washington, DC 20220. September 2, 1999. any durational contract provisions. Before B&M/ST DATES: can discontinue its operations over the rail lines, it Written comments should be The Department of Treasury has must obtain appropriate authority under 49 U.S.C. received on or before October 13, 1999 submitted the following public 10903 from the Board. to be assured of consideration. information collection requirement(s) to
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OMB for review and clearance under the Estimated Burden Hours Per SUPPLEMENTARY INFORMATION: Paperwork Reduction Act of 1995, Pub. Respondent: 15 minutes. Title: FI–27–89, Real Estate Mortgage L. 104–13. Copies of the submission(s) Frequency of Response: On occasion. Investment Conduits; Reporting may be obtained by calling the Treasury Estimated Total Reporting Burden: Requirements and Other Administrative Bureau Clearance Officer listed. 2,000 hours. Matters, and FI-61–91, Allocation of Comments regarding this information Clearance Officer: Garrick Shear, Allocable Investment Expense; Original collection should be addressed to the Internal Revenue Service, Room 5244, Issue Discount Reporting Requirements. OMB reviewer listed and to the 1111 Constitution Avenue, NW, OMB Number: 1545–1018. Treasury Department Clearance Officer, Washington, DC 20224. Regulation Project Number: FI–27–89 Department of the Treasury, Room 2110, OMB Reviewer: Alexander T. Hunt, and FI–61–91. 1425 New York Avenue, NW., (202) 395–7860, Office of Management Abstract: The regulations prescribe Washington, DC 20220. and Budget, Room 10202, New the manner in which an entity elects to DATES: Written comments should be Executive Office Building, Washington, be taxed as a real estate mortgage received on or before October 13, 1999 DC 20503. investment conduit (REMIC) and the to be assured of consideration. Lois K. Holland, filing requirements for REMICs and Departmental Reports Management Officer. certain brokers. Internal Revenue Service (IRS) [FR Doc. 99–23781 Filed 9–10–99; 8:45 am] Current Actions: There is no change to OMB Number: 1545–1218. BILLING CODE 4830±01±P these existing regulations. Regulation Project Number: CO–25– Type of Review: Extension of a 96 Final. currently approved collection. Type of Review: Extension. DEPARTMENT OF THE TREASURY Affected Public: Business or other for- Title: Regulations Under Section 1502 profit organizations. of the Internal Revenue Code of 1986; Internal Revenue Service Estimated Number of Respondents: Limitations on Net Operating Loss [FI±27±89; FI±61±91] 655. Carryforwards and Certain Built-in Estimated Time Per Respondent: 1 Losses and Credits Following an Proposed Collection; Comment hour, 30 minutes. Ownership Change of a Consolidated Request for Regulation Project Estimated Total Annual Burden Group Hours: 978. Description: Section 1502 provides for AGENCY: Internal Revenue Service (IRS), The following paragraph applies to all the promulgation of regulations with Treasury. of the collections of information covered respect to corporations that file ACTION: Notice and request for by this notice: consolidated income tax returns. comments. An agency may not conduct or Section 382 limits the amount of income sponsor, and a person is not required to that can be offset by loss carryovers and SUMMARY: The Department of the respond to, a collection of information credits after an ownership change. Treasury, as part of its continuing effort unless the collection of information These final regulations provide rules for to reduce paperwork and respondent displays a valid OMB control number. applying section 382 to groups of burden, invites the general public and Books or records relating to a collection corporations that file a consolidated other Federal agencies to take this of information must be retained as long return. opportunity to comment on proposed as their contents may become material Respondents: Business or other for- and/or continuing information in the administration of any internal profit. collections, as required by the Estimated Number of Respondents: Paperwork Reduction Act of 1995, Pub. revenue law. Generally, tax returns and 12,054. L. 104–13 (44 U.S.C. 3506(c)(2)(A)). tax return information are confidential, Estimated Burden Hours Per Currently, the IRS is soliciting as required by 26 U.S.C. 6103. Respondent: 20 minutes. comments concerning existing final Request for Comments Frequency of Response: On occasion, regulations, FI–27–89 (TD 8366), Real Comments submitted in response to Other (changes in group membership). Estate Mortgage Investment Conduits; this notice will be summarized and/or Estimated Total Reporting Burden: Reporting Requirements and Other included in the request for OMB 662 hours. Administrative Matters, and FI–61–91 approval. All comments will become a OMB Number: 1545–1237. (TD 8431), Allocation of Allocable matter of public record. Comments are Regulation Project Number: REG– Investment Expense; Original Issue invited on: (a) Whether the collection of 209831–96 Final (formerly CO–24–96 Discount Reporting Requirements information is necessary for the proper Final). (§§ 1.67–3, 1.860D–4, 1.860F–4, 1.6049– performance of the functions of the Type of Review: Extension. 4 and 1.6049–7). Title: Consolidated Returns— agency, including whether the DATES: Written comments should be Limitations on the Use of Certain Losses information shall have practical utility; received on or before November 12, and Deductions. (b) the accuracy of the agency’s estimate 1999 to be assured of consideration. Description: Section 1502 provides for of the burden of the collection of promulgation of regulations with ADDRESSES: Direct all written comments information; (c) ways to enhance the respect to corporations that file to Garrick R. Shear, Internal Revenue quality, utility, and clarity of the consolidated income tax returns. These Service, room 5244, 1111 Constitution information to be collected; (d) ways to regulations amend the current Avenue NW., Washington, DC 20224. minimize the burden of the collection of regulations regarding the use of certain FOR FURTHER INFORMATION CONTACT: information on respondents, including losses and deductions by such Requests for additional information or through the use of automated collection corporations. copies of the regulations should be techniques or other forms of information Respondents: Business or other for- directed to Carol Savage, (202) 622– technology; and (e) estimates of capital profit. 3945, Internal Revenue Service, room or start-up costs and costs of operation, Estimated Number of Respondents: 5242, 1111 Constitution Avenue NW., maintenance, and purchase of services 8,000. Washington, DC 20224. to provide information.
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Approved: September 3, 1999. The following paragraph applies to all L. 104–13 (44 U.S.C. 3506(c)(2)(A)). Garrick R. Shear, of the collections of information covered Currently, the IRS is soliciting IRS Reports Clearance Officer. by this notice: comments concerning an existing notice [FR Doc. 99–23786 Filed 9–10–99; 8:45 am] An agency may not conduct or of proposed rulemaking, REG–209817– BILLING CODE 4830±01±P sponsor, and a person is not required to 96, Treatment of Obligation-Shifting respond to, a collection of information Transactions (§ 1.7701(l)–2). unless the collection of information DATES: Written comments should be DEPARTMENT OF THE TREASURY displays a valid OMB control number. received on or before November 12, Books or records relating to a collection 1999 to be assured of consideration. Internal Revenue Service of information must be retained as long ADDRESSES: Direct all written comments as their contents may become material to Garrick R. Shear, Internal Revenue Proposed Collection; Comment in the administration of any internal Service, room 5244, 1111 Constitution Request for Form 8820 revenue law. Generally, tax returns and Avenue NW., Washington, DC 20224. AGENCY: Internal Revenue Service (IRS), tax return information are confidential, as required by 26 U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: Treasury. Requests for additional information or ACTION: Notice and request for Request for Comments copies of the regulation should be comments. Comments submitted in response to directed to Carol Savage, (202) 622– SUMMARY: The Department of the this notice will be summarized and/or 3945, Internal Revenue Service, room Treasury, as part of its continuing effort included in the request for OMB 5242, 1111 Constitution Avenue NW., to reduce paperwork and respondent approval. All comments will become a Washington, DC 20224. burden, invites the general public and matter of public record. Comments are SUPPLEMENTARY INFORMATION: other Federal agencies to take this invited on: (a) whether the collection of Title: Treatment of Obligation-Shifting opportunity to comment on proposed information is necessary for the proper Transactions. and/or continuing information performance of the functions of the OMB Number: 1545–1515. collections, as required by the agency, including whether the Regulation Project Number: REG– Paperwork Reduction Act of 1995, Pub. information shall have practical utility; 209817–96. L. 104–13 (44 U.S.C. 3506(c)(2)(A)). (b) the accuracy of the agency’s estimate Abstract: This regulation relates to the Currently, the IRS is soliciting of the burden of the collection of treatment of certain multiple-party comments concerning Form 8820, information; (c) ways to enhance the financing transactions in which one Orphan Drug Credit. quality, utility, and clarity of the party realizes income from leases or DATES: Written comments should be information to be collected; (d) ways to similar agreements and another party received on or before November 12, minimize the burden of the collection of claims deductions related to that 1999 to be assured of consideration. information on respondents, including income. In order to prevent tax through the use of automated collection avoidance, this regulation ADDRESSES: Direct all written comments recharacterizes these transactions in a to Garrick R. Shear, Internal Revenue techniques or other forms of information Service, room 5244, 1111 Constitution technology; and (e) estimates of capital manner that clearly reflects income. The Avenue NW., Washington, DC 20224. or start-up costs and costs of operation, regulation affects only persons that maintenance, and purchase of services engage in these transactions. The FOR FURTHER INFORMATION CONTACT: to provide information. regulation generally does not apply to Requests for additional information or routine transactions lacking copies of the form(s) and instructions Approved: September 2, 1999. Garrick R. Shear, characteristics of tax avoidance. should be directed to Carol Savage, Current Actions: There is no change to IRS Reports Clearance Officer. (202) 622–3945, Internal Revenue this existing regulation. Service, room 5242, 1111 Constitution [FR Doc. 99–23788 Filed 9–10–99; 8:45 am] Type of Review: Extension of a Avenue NW., Washington, DC 20224. BILLING CODE 4830±01±P currently approved collection. SUPPLEMENTARY INFORMATION: Affected Public: Business or other for- Title: Orphan Drug Credit. profit organizations. OMB Number: 1545–1505. DEPARTMENT OF THE TREASURY Estimated Number of Recordkeepers: Form Number: 8820. 100. Abstract: Filers use this form to elect Internal Revenue Service Estimated Time Per Recordkeeeper: 5 to claim the orphan drug credit, which [REG±209817±96] hours. is 50% of the qualified clinical testing Estimated Total Annual expenses paid or incurred with respect Proposed Collection; Comment Recordkeeping Burden: 500. to low or unprofitable drugs for rare Request For Regulation Project The following paragraph applies to all diseases and conditions, as designated of the collections of information covered under section 526 of the Federal Food, AGENCY: Internal Revenue Service (IRS), by this notice: Drug, and Cosmetic Act. Treasury. Current Actions: There are no changes ACTION: Notice and request for An agency may not conduct or being made to the form at this time. comments. sponsor, and a person is not required to Type of Review: Extension of a respond to, a collection of information currently approved collection. SUMMARY: The Department of the unless the collection of information Affected Public: Business or other for- Treasury, as part of its continuing effort displays a valid OMB control number. profit organizations. to reduce paperwork and respondent Books or records relating to a collection Estimated Number of Respondents: burden, invites the general public and of information must be retained as long 100. other Federal agencies to take this as their contents may become material Estimated Time Per Respondent: 9 opportunity to comment on proposed in the administration of any internal hours, 39 minutes. and/or continuing information revenue law. Generally, tax returns and Estimated Total Annual Burden collections, as required by the tax return information are confidential, Hours: 965. Paperwork Reduction Act of 1995, Pub. as required by 26 U.S.C. 6103.
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Request for Comments Paper submissions should include return information held by the IRS that three paper copies and a version on pertains to the taxpayer. Under Section Comments submitted in response to diskette in ASCII, Microsoft Word 6103(c) (Disclosure of Returns and this notice will be summarized and/or (please specify version), or WordPerfect Return Information to Designee of included in the request for OMB (please specify version) format. Taxpayer), a taxpayer may designate a approval. All comments will become a Comments submitted in electronic form third-party recipient to receive his/her matter of public record. Comments are should be in ASCII, Microsoft Word return or return information and may invited on: (a) whether the collection of (please specify version) or WordPerfect authorize the IRS to release that information is necessary for the proper (please specify version) format to: information to that third party. performance of the functions of the www.*[email protected]. The IRS uses Form 4506 ‘‘Request for agency, including whether the Copy or Transcript of Tax Form’’ for information shall have practical utility; FOR FURTHER INFORMATION CONTACT: Elizabeth Kelley, IRS, (202) 283–1990. taxpayers to request copies of return (b) the accuracy of the agency’s estimate transcripts. The current process is as of the burden of the collection of SUPPLEMENTARY INFORMATION: Background: The mission of the follows: information; (c) ways to enhance the 1. A taxpayer obtains a Form 4506. Electronic Tax Administration Office of quality, utility, and clarity of the Form 4506 may be obtained from the the Department of the Treasury’s information to be collected; (d) ways to IRS’ website, an IRS office, or it may be Internal Revenue Service (IRS) is to minimize the burden of the collection of presented to the taxpayer by the third revolutionize how taxpayers transact information on respondents, including party for the loan, grant, or subsidy and communicate with the IRS. through the use of automated collection application process. techniques or other forms of information Strategies to fulfill the mission include: 2. The taxpayer completes the Form • Making electronic filing, payments, technology; and (e) estimates of capital 4506 to authorize the IRS to release their transactions and communications so or start-up costs and costs of operation, tax information to a designated third simple, inexpensive, and trusted that maintenance, and purchase of services party. Completing the Form 4506 taxpayers will prefer these to calling to provide information. includes signing and dating the Form and mailing; Approved: September 7, 1999. • 4506. Providing additional taxpayer 3. The taxpayer mails the completed, Garrick R. Shear, access methods to products and services IRS Reports Clearance Officer. signed and dated form to the centering on electronic filing, payment, appropriate IRS Service Center. In cases [FR Doc. 99–23787 Filed 9–10–99; 8:45 am] transaction, and communication where the third party has provided the BILLING CODE 4830±01±P products and services; • Form 4506 to the taxpayer, the third Aggressively protecting transaction party mails, or in some cases, delivers and information integrity and quality; DEPARTMENT OF THE TREASURY the Form 4506 to the appropriate IRS and Service Center. • Seeking the best people, ideas and Internal Revenue Service 4. The IRS receives the Form 4506, partners to assure IRS success. routes it to the appropriate IRS function Internal Revenue Service Pilot of an In response to the IRS’ Restructuring and retrieves the requested tax Electronic Transcript Delivery System and Reform Act of 1998, the IRS has information. been tasked with increasing electronic 5. The IRS mails the requested tax AGENCY: Internal Revenue Service (IRS), communications and services to the information to the taxpayer or to the Department of the Treasury. public. One of the services provided by third party designated by the taxpayer the IRS is to respond to over six (6) ACTION: Notice and Request for Public on the form. million requests annually from Comment on Internal Revenue Service taxpayers requesting copies of paper tax Improving Customer Service Pilot of an Electronic Transcript returns, return transcripts (an electronic Delivery System. The IRS seeks to develop a process to version of your submitted tax return), automate the paper process of the Form SUMMARY: The mission of the Electronic verification of non-filing and W–2s. Of 4506 for third-party requests. The Tax Administration Office of the the six (6) million, approximately two system would electronically receive and Department of the Treasury’s Internal (2) million are from taxpayers process requests for disclosure of tax Revenue Service (IRS) is to requesting that their tax information be return information from a third-party revolutionize how taxpayers transact sent to a designated ‘‘third-party’’ entity. entity authorized by individual and communicate with the IRS. The IRS Examples of third-party entities include taxpayers. To assist the IRS in final seeks comments on a program to tax practitioners, financial institutions, development of this program, the IRS automate provision of tax information to the mortgage industry, colleges/ seeks comments and feedback from a third-party entity designated by the universities and local, state, and federal taxpayers and the private and public taxpayer. The IRS requests comments on government entities. The most frequent sectors on access methods. various aspects of the piloting and use of tax information by these third Since one third of the Form 4506 implementation of this program, as well parties is to provide income verification requests (over two (2) million annually) as specific questions concerning for loans, grants, subsidies or other are taxpayers requesting their tax privacy, authentication, and security. monetary guarantees, while tax information be sent to a third party, the practitioners assist taxpayers in IRS seeks to improve customer service DATES: Comments must be received by resolving tax issues. to the taxpayer by: October 13, 1999. Chapter 61 of the Internal Revenue (1) Accelerating Delivery Time. ADDRESSES: Mail written comments to: Code addresses the confidentiality and Currently, the receipt, processing and Electronic Transcript Delivery Pilot disclosure of returns and return retrieval of the return information for a Project, Electronic Tax Administration, information. Under Section 6103(e) designated third party takes the IRS OP:ETA:E:P, Internal Revenue Service, (Disclosure of Persons Having Material approximately seven (7) to ten (10) days, Room C5–463, 5000 Ellin Road, Interest), a taxpayer has the right to excluding the time it takes for the tax Lanham, MD 20706. obtain his/her tax return and/or most information to be mailed to the third
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Standard industrial classification codes
Tax Practitioners ...... Industry Numbers 7291, 8721. Financial Institutions ...... Major Group 60. Mortgage Industries ...... Major Group 61. Credit Bureaus/Credit Reporting Services ...... Industry Number 7323.
These industries comprise the largest During the pilot, the IRS will ask for based on the data provided by the volume of designated recipients on the several reports. Status reports to be electronic transcript delivery pilot. All Forms 4506 from taxpayers and will completed by the Contractors will be information collected will be statistical enable the IRS to pilot with a large used to evaluate problems, determine in nature and will not identify audience to test an electronic transcript any changes to be made during the pilot, individual taxpayers. delivery system in terms of customer evaluate lessons learned and to gather The Contractor will also be required satisfaction, system capacity and recommendations for improvement of to provide a written notice to each security, and ease of use. For the pilot, the system. These reports are geared taxpayer prior to their participation in the geographical limitation to the state towards the Contractor’s experience in the electronic transcript delivery pilot. of California is to maintain software dealing with the system, the customers, This written notice makes the taxpayer support and reduce burden and cost to the hardware and software, the quality aware of their privacy interests and Contractors for training. In addition, it of training, the assistance provided by explains the purpose and scope of the will limit costs to the IRS in random the IRS’ Help Desk and the usefulness pilot. reviews of system performance, security of an IRS-provided User’s Guide. A draft Request For Proposals (RFP) of information checks, observation of The IRS will also conduct a Taxpayer titled ‘‘Draft Request For Proposals taxpayer processing and Contractor Satisfaction Survey with a random TIRNO–99–R–00043’’ is posted on the performance to the terms and conditions sample of taxpayers who participated in IRS’ Procurement website at of the contract. the electronic transcript delivery pilot. www.procurement.irs.treas.gov/ The capability to collect a user fee for The Contractors will not have opportun.htm. This accompanies a the electronic transcript service is being knowledge of the particular taxpayers Request For Information (RFI) (TIRNO– developed and a user fee may be selected for this random survey. 99–H–00005), which is the method the collected from the Contractors at some To help the IRS evaluate IRS is using to seek business responses point during the pilot. discrepancies between income reported to this program. The Contractors will be required to by a taxpayer versus income stated on One of the most important have available (purchase, lease or rent) an application form, the Contractors requirements of the RFP will be for the hardware equipment and software will be required to complete a form that Contractors to maintain the systems to be specified in the RFP. This captures statistical data on confidentiality and security of the equipment must be available by the start discrepancies of income reporting. This taxpayer’s data. Although this up of the training period and will be will require the Contractors to track and information is supplied by the needed for the entire length of the pilot. record the number of requests Contractor at the taxpayer’s consent, the Training on the systems will be at the processed, the number of discrepancies IRS will require that all information expense of the Contractors and will be from the information provided by the received through this program meet the structured as a two-day class at the IRS taxpayers and the number of loans, following stringent security Service Center in Fresno, California. grants or subsidies that were declined requirements:
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(1) Tax return information will be any negative experiences in protecting (positive or negative) on voluntary tax kept confidential. your privacy on line? law compliance by the taxpayers. (2) Tax return information will be 7. What circumstances give rise to 20. Would you, your business or used solely for the purpose directed by good privacy and information agency be amenable to paying a user fee the taxpayer. safeguarding protection in a traditional for this accelerated service? If so, what (3) Tax return information will be business setting or on line? would you see as a reasonable charge for stored in locked containers when not in 8. Please comment on whether you this service? use. feel an electronic transcript system 21. What would you, your business or (4) Tax return information will not be should be made universally available to agency see as a viable means of discussed unless specifically referring to any business requiring income authenticating the taxpayer to the IRS the taxpayer’s application. verification or tax resolution. Would 24- within this electronic format? What (5) Tax return information will not be hour delivery of income verification by form of electronic signature (e.g., further disclosed, traded, bartered, or the IRS accomplish accelerated selection of a personal identification sold without the express authorization processing of a loan, grant or subsidy or number, signing digitized signature pad, of the taxpayer (i.e., the Contractor will resolution of a tax issue? a public key-private key system, etc.) be required to obtain another 9. Please comment on the proposed would be best and would ensure legal authorization from the taxpayer for 24-hour delivery versus the current recourse? further disclosures). seven (7) to ten (10) day process. What 22. What type of information do you, Requested Comments advantages would you, your business or your business or agency use in agency have if the information were processing applications for income The Internal Revenue Service is available in a ‘‘real time’’ on-line basis? verification for loans, grants, subsidies, seeking comments and input from 10. Please comment on whether you etc.? Is this information corroborated industry, federal, state and local feel third-party entities would maintain with information secured from other agencies and taxpayers concerning the the confidentiality and security of the private or public agencies? piloting/implementation of this concept. provided return information. 23. Please comment on the types of In particular, the Internal Revenue 11. Do you, your business or agency written reports and statistical Service is interested in responses to the regularly sell customer information for accounting required by the pilot following, but will appreciate all marketing or advertising purposes? participants. comments or reactions to the proposed 12. What do you, your business or 24. Please comment on the draft RFP pilot: agency see as methods to increase (Draft Request For Proposals TIRNO– 1. Based on commercial practice, confidentiality, security and improve 99–R–00043) at the IRS’ website what would be the best vehicle to customer service to the taxpayer in (www.procurement.irs.treas.gov/ deliver this product (e.g., encrypted providing electronic transcripts? opportun.htm) including input on Internet, encrypted e-mail, encrypted 13. What do you, your business or contractual boundaries, rules and modem with digitized signature pads, agency see as elements of enforcement regulations. etc.)? What issues do each of these mechanisms necessary for maintaining 25. Please indicate your industry type methods raise with regards to security, effective confidentiality, security or or if you are an individual. authentication, safeguarding data, etc.? enhancing customer service to the 2. How might companies and/or taxpayer? Dated: August 30, 1999. industry sectors self regulate the 14. What do you, your business or Robert E. Barr, safeguarding of sensitive taxpayer agency see as the main advantage(s) and Assistant Commissioner, Electronic Tax information? disadvantage(s) of such a system? Administration. 3. Please comment on the effort which 15. What would you, your business or [FR Doc. 99–23789 Filed 9–10–99; 8:45 am] businesses and agencies expend in agency identify as an appropriate BILLING CODE 4830±01±P income verification on an annual basis. consequence for any mishandling, 4. Do you, your company or agency misuse or unauthorized disclosure of currently do sensitive transactions your tax return information by a third DEPARTMENT OF THE TREASURY related to income verification or tax party that requires taxpayer information resolution issues over the Internet or via to process a loan, grant or subsidy or Bureau of the Public Debt e-mail? Are most of these types of resolve a tax issue? Proposed Collection: Comment interactions internet-based or paper- 16. What existing privacy policies do Request based? Is your office fully automated you, your business or agency follow? In (i.e., do all employees have a computer, what ways do they effectively address ACTION: Notice and request for e-mail and Internet accessibility?) concerns about privacy in the comments. 5. Is there common knowledge and information to which they apply? In use in your industry of the IRS’ Form what ways do they fail? SUMMARY: The Department of the 4506 and the ability to receive a copy 17. Please comment on what you Treasury, as part of its continuing effort of a paper return, return transcript, W– think the responsibilities of the to reduce paperwork and respondent 2 or verification of non-filing? government, businesses or agencies are burden, invites the general public and 6. What on-line experiences have you in protecting taxpayer data. To what other Federal agencies to take this encountered in which privacy and extent do these parties have a right to opportunity to comment on proposed safeguarding of income verification or collect and use information to further and/or continuing information tax resolution information have been at their commercial interests? collections, as required by the issue? In what instances have they 18. Should the government have an Paperwork Reduction Act of 1995, appeared at risk? In what instances were interest in reducing the proliferation of Public Law 104–13 (44 U.S.C. they well protected? In what ways have taxpayer consent-based disclosures? 3506(c)(2)(A). Currently the Bureau of businesses or organizations been 19. Please comment on whether you the Public Debt within the Department responsive to privacy and information think that a growth in taxpayer consent- of the Treasury is soliciting comments safeguarding concerns? Have you had based disclosures will have an impact concerning the Resolution Authorizing
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(1) Disposition of Securities Held by Dated: September 7, 1999. UNITED STATES INFORMATION Organization, and (2) Execution and Vicki S. Thorpe, AGENCY Delivery of Bonds of Indemnity. Manager, Graphics, Printing and Records Branch. Culturally Significant Objects Imported DATES: Written comments should be for Exhibition Determinations: ``Still- [FR Doc. 99–23680 Filed 9–10–99; 8:45 am] received on or before November 12, Life Paintings From the Netherlands, 1999, to be assured of consideration. BILLING CODE 4810±39±P 1550±1720'' ADDRESS: Direct all written comments to AGENCY: United States Information Bureau of the Public Debt, Vicki S. Agency. Thorpe, 200 Third Street, Parkersburg, UNITED STATES INFORMATION WV 26106–1328. ACTION: Notice. AGENCY FOR FURTHER INFORMATION CONTACT: SUMMARY: Notice is hereby given of the Requests for additional information or Culturally Significant Objects Imported following determinations: Pursuant to copies of the form and instructions for Exhibition Determinations: ``Only the authority vested in me by the Act of should be directed to Vicki S. Thorpe, the Best'': Masterpieces of the October 19, 1965 (79 Stat. 985, 22 U.S.C. Bureau of the Public Debt, 200 Third Calouste Gulbenkian Museum, Lisbon 2459), Executive Order 12047 of March Street, Parkersburg, WV 26106–1328, 27, 1978 (43 FR 13359, March 29, 1978), (304) 480–6553. AGENCY: United States Information and Delegation Order No. 85–5 of June 27, 1985 (50 FR 27393, July 2, 1985). I SUPPLEMENTARY INFORMATION: Agency. hereby determine that the objects to be Title: Resolution Authorizing (1) ACTION: Notice. included in the exhibit ‘‘Still-Life Disposition of Securities Held by Paintings from the Netherlands, 1550– organization, and (2) Execution and SUMMARY: Notice is hereby given of the 1720’’ imported from abroad for Delivery of Bonds of Indemnity. following determinations: Pursuant to temporary exhibition without profit OMB Number: 1535–0052. the authority vested in me by the Act of within the United States, are of cultural Form Number: PD F 1011. October 19, 1965 (79 Stat. 985, 22 U.S.C. significance. These objects are imported pursuant to a loan agreement with the Abstract: The information is 2459), Executive Order 12047 of March foreign lenders. I also determine that the requested to establish the authority of 27, 1978 (43 FR 133359, March 29, exhibition or display of the listed an organization to dispose of registered 1978), and Delegation Order No. 85–5 of exhibit objects at the Cleveland Museum United States securities and/or execute June 27, 1985 (50 FR 27393, July 2, of Art, Cleveland, OH, from on or about bonds of indemnity. 1985), I hereby determine that the objects to be included in the exhibit, October 31, 1999, to on or about January Current Actions: None. ‘‘Only the Best’’: Masterpieces of the 9, 2000, is in the national interest. Type of Review: Extension. Calouste Gulbenkian Museum, Lisbon Public Notice of these determinations is Affected Public: Business or other for- imported from abroad for the temporary ordered to be published in the Federal Register. profit/not-for-profit institutions. exhibition without profit within the Estimated Number of Respondents: United States, are of cultural FOR FURTHER INFORMATION CONTACT: For 485. significance. These objects are imported a copy of the list of exhibit objects or for further information, contact Carol pursuant to loan agreements with the Estimated Time Per Respondent: 30 Epstein, Assistant General Counsel, foreign lenders. I also determine that the minutes. Office of the General Counsel, United exhibition or display of the exhibit Estimated Total Annual Burden States Information Agency, at 202/619– Hours: 243. objects at The Metropolitan Museum of 6981, or USIA, 301 4th Street, SW., Art, New York, NY., from on or about Request for Comments Room 700, Washington, DC 20547– November 15, 1999 to on or about 0001. February 27, 2000, is in the Public Comments submitted in response to Dated: September 8, 1999. this notice will be summarized and/or Notice of these determinations is Les Jin, included in the request for OMB ordered to be published in the Federal approval. All comments will become a Register. General Counsel. matter of public record. Comments are [FR Doc. 99–23783 Filed 9–10–99; 8:45 am] FOR FURTHER INFORMATION CONTACT: For invited on: (a) Whether the collection of BILLING CODE 8230±01±M further information, contact Carol information is necessary for the proper Epstein, Assistant General Counsel, performance of the functions of the Office of the General Counsel, 202/619– UNITED STATES INFORMATION agency, including whether the AGENCY information shall have practical utility; 6981, and the address is Room 700, U.S. (b) the accuracy of the agency’s estimate Information Agency, 301 4th Street, SW Washington, DC 20547–0001. Bureau of Educational and Cultural of the burden of the collection of Affairs; Program Title: The FREEDOM information; (c) ways to enhance the Dated: September 7, 1999. Support Act/Future Leaders Exchange quality, utility, and clarity of the Les Jin, (FSA/FLEX) Program; Inbound, NIS information to be collected; (d) ways to General Counsel. Secondary School Initiative minimize the burden of the collection of [FR Doc. 99–23782 Filed 9–10–99; 8:45 am] information on respondents, including NOTICE: Request for proposals. through the use of automated collection BILLING CODE 8230±01±M SUMMARY: The Youth Programs techniques or other forms of information Division/Office of Citizen Exchanges of technology; and (e) estimates of capital the United States Information Agency’s or start-up costs and costs of operation, Bureau of Educational and Cultural maintenance, and purchase of services Affairs announces an open competition to provide information. for the FREEDOM Support Act (FSA)
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Future Leaders Exchange (FLEX) encourage FSA/FLEX program Guidelines program. For applicants’ Information, participants to share their culture, Organizations chosen under this on October 1, 1999, the Bureau will lifestyle and traditions with U.S. competition are responsible for the become part of the U.S. Department of citizens. Through participation in the following: recruitment, screening, State. The integration will not affect the FLEX program, students should: selection, and cultural-specific content of this announcement or nature 1. Acquire an understanding of orientation of host families; school of the program described. Public and important elements of a civil society. enrollment; local orientation for private non-profit organizations meeting This includes concepts such as participants; placement of a small the provisions described in IRS volunteerism, the idea that American number of students with disabilities; regulation 26 CFR 1.501(c) may submit citizens can and do act at the grass roots ensuring that all students identified for proposals to recruit and select host level to deal with societal problems, and the pre-academic-year English and families for high school students an awareness of and respect for the rule cultural enrichment program have their between the ages of 15 and 17 from the of law. permanent year-program; specialized New Independent States (NIS) of the training of local staff and volunteers to former Soviet Union. In addition to 2. Acquire an understanding of a free work with NIS students; preparation identifying schools and screening, market economy and private enterprise. and dissemination of materials to selecting, and orienting host families, This includes an awareness of students pertaining to the respective organizations will be responsible for: privatization and an appreciation of the placement organization; program-related orienting students at the local level; role of the entrepreneur in economic enhancement activities; supervision and providing support services for students; growth. monitoring of students; trouble shooting arranging enhancement activities that 3. Develop an appreciation for and periodic reporting on students’ reinforce program goals; monitoring American culture. students during their stay in the U.S.; progress; when appropriate, 4. Interact with Americans and providing re-entry training; and communication with the organizations generate enduring ties. assessing student performance and conducting other program components; progress. The award of grants and the 5. Teach Americans about the cultures evaluation of the students’ performance; number of students who will participate of their home countries. quarterly evaluation of the organization’s success in achieving is subject to the availability of funding 6. Gain leadership capacity that will in fiscal year 2000. program goals; and re-entry training to enable the initiation and support of prepare students for readjustment to Program Information development and community activities their home environments. in their role as program alumni. Overview Applicants may request a grant for the Other Components placement of at least 20 students. There Background is no ceiling on the number of students Academic year 2000/01 will be the Two organizations operating as a who may be placed by one organization. eight year of the FSA/FLEX program, consortium have been awarded grants to It is anticipated that 10 to 15 grants will which now includes over 7,100 alumni. perform the following functions: be awarded for this component of the This component of the NIS Secondary recruitment and selection of students; FLEX program. Placements will be School Initiative was originally targeted recruitment for students with distributed throughout the U.S. authorized under the FREEDOM disabilities; assistance in documentation Students may be clustered in one or Support Act of 1992 and is funded by and preparation of IAP–66 forms; more regions or dispersed. If dispersed, annual allocations from the Foreign preparation of cross-cultural materials; applicants should demonstrate that Operations and the Bureau of pre-departure orientation; international training of local staff ensures their Educational and Cultural Affairs travel from home to host community competence in providing NIS-specific appropriations. The goals of the and return; facilitation of ongoing orientation programs, appropriate program are to promote mutual communication between the natural enhancement activities, and quality understanding and foster a relationship parents and placement organizations, as supervision and counseling of students between the people of the NIS and the needed; maintenance of a student from the NIS. Please refer to the U.S.; assist the successor generation of database and provision of data to the Solicitation Package, available on the NIS to develop the qualities it will Bureau; and ongoing follow-up with request from the address listed below, need to lead in the transformation of alumni after their return to the NIS. for details on essential program those countries in the 21st century; and Additionally, a separate grant will be elements, permissible costs, and criteria to promote democratic values and civic awarded for a one-week mid-year civic used to select students. responsibility by giving NIS youth the education program in Washington, D.C., Grants should begin at the point that opportunity to live in American society for a select number of students who the complete applications on selected and participate in goal-oriented successfully compete for the finalists are delivered to the placement activities for an academic year. Washington program. Most of the organizations, no later than March 15, students with disabilities, as well as a 2000. Participants arrive in their host Objectives select number of additional students communities during the month of To place approximately 1,000 pre- who are identified as needing English August and remain for 10 or 11 months selected high school students from the language enhancement before entering until their departure during the period NIS in qualified, well-motivated host their host communities, will attend an mid-May to late June 2001. families and welcoming schools. To English enrichment and cultural Administration of the program must expose program participants to orientation program in July 2000, be in compliance with reporting and American culture and democracy conducted under a grant awarded withholding regulations for federal, through homestay experiences and exclusively for that purpose. The state, and local taxes as applicable. enhancement activities that will enable announcements of the competitions for Recipient organizations should them to attain a broad view of the these grants will be published demonstrate tax regulation adherence in society and culture of the U.S. To separately. the proposal narrative and budget.
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Applicants should submit the health the RFP deadline has passed, Bureau Year 2000 Compliance Requirement and accident insurance plans they staff may not discuss this competition (Y2K Requirement) intend to use for students on this with applicants until the proposal The Year 2000 (Y2K) issue is a broad program. The Bureau will compare any review process has been completed. operational and accounting problem external plans with the Bureau’s plan To Download a Solicitation Package that could potentially prohibit and make a determination of which will Via Internet: The entire Solicitation organizations from processing be applicable. Package may be downloaded from the information in accordance with Federal Participants will travel on J–1 visas Bureau’s website at http://e.usia.gov/ management and program specific issued by the Bureau using a education/rfps. Please read all requirements including data exchange government program number. with the Bureau. The inability to Organizations must comply with J–1 information before downloading. process information in accordance with visa regulations in carrying out their Deadline for Proposals: All proposal Federal requirements could result in responsibilities under the FLEX copies must be received at the Bureau grantees’ being required to return funds program. Please refer to Solicitation of Educational and Cultural Affairs by 5 that have not been accounted for Package for further information. p.m. Washington, D.C. time on Monday, properly. October 25, 1999. Faxed documents will Budget Guidelines The Bureau therefore requires all not be accepted at any time. Documents organizations use Y2K compliant Grants awarded to eligible postmarked the due date but received systems including hardware, software, organizations with less than four years on a later date will not be accepted. and firmware. Systems must accurately of experience in conducting Each applicant must ensure that the international exchange programs will be process data and dates (calculating, proposals are received by the above comparing and sequencing) both before limited to $60,000. deadline. Applicants must submit a and after the beginning of the year 2000 comprehensive budget for the entire Applicants must follow all and correctly adjust for leap years. program. Per capita costs should not instructions in the Solicitation Package. Additional information addressing the exceed $4,850. There must be a The original and 6 copies of the Y2K issue may be found at the General summary budget as well as breakdowns application should be sent to: U.S. Services Administration’s Office of reflecting both administrative and Department of State, Bureau of Information Technology website at program budgets. Applicants may Educational and Cultural Affairs, Ref.: http://www.itpolicy.gsa.gov. E/P–00–06, Office of Program provide separate sub-budgets for each Review Process program component, phase, location, or Management, ECA/EX/PM, Room 336, activity to provide clarification. 301 4th Street, SW, Washington, DC The Bureau will acknowledge receipt Allowable costs for the program 20547. of all proposals and will review them include the following: for technical eligibility. Proposals will (1) A monthly stipend and incidentals Diversity, Freedom and Democracy be deemed ineligible if they do not fully allowance for participants, as Guidelines adhere to the guidelines stated herein and in the Solicitation Package. All established by the Bureau. Pursuant to the Bureau’s authorizing eligible proposals will be reviewed by (2) Costs associated with student legislation, programs must maintain a enhancements and orientations. the program office, as well as the non-political character and should be (3) Administrative costs associated Department of State regional authorities with host family recruiting, staff balanced and representative of the and embassies overseas, where training, monitoring, and other diversity of American political, social, appropriate. Eligible proposals will be functions. and cultural life. ‘‘Diversity’’ should be forwarded to panels of Bureau officers (4) Health and accident insurance. interpreted in the broadest sense and for advisory review. Proposals may also Please refer to the Solicitation Package encompass differences including, but be reviewed by the Office of the Legal for complete budget guidelines and not limited to ethnicity, race, gender, Adviser or by other Department of State formatting instructions. religion, geographic location, socio- entities. Final funding decisions are at Announcement Title and Number: All economic status, and physical the discretion of State’s Assistant correspondence with the Bureau challenges. Applicants are strongly Secretary for Educational and Cultural concerning this RFP should reference encouraged to adhere to the Affairs. Final technical authority for the above title and number E/P–00–06. advancement of this principle both in assistance awards (grants or cooperative FOR FURTHER INFORMATION CONTACT: The program administration and in program agreements) resides with the Bureau Office of Youth Programs, ECA/PE/C/ content. Please refer to the review Grants Officer. PY, Room 568, Bureau of Educational criteria under the ‘‘Support for Review Criteria and Cultural Affairs, 301 4th Street, Diversity’’ section for specific S.W., Washington, D.C. 20547, tel. (202) suggestions on incorporating diversity Technically eligible applications will 619–6299, fax (202) 619–5311, e-mail into the total proposal. Public Law 104– be competitively reviewed according to
VerDate 18-JUN-99 18:17 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.XXX pfrm02 PsN: 13SEN1 49546 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Notices placed in a timely fashion. Agenda and recommended. Successful applicants commitment on the part of the plan should adhere to the program will be expected to submit quarterly Government. The Bureau reserves the overview and guidelines described reports, which should be included as an right to reduce, revise, or increase above. inherent component of the work plan. proposals budgets in accordance with 3. Ability to achieve program 9. Cost-effectiveness: The overhead the needs of the program and the objectives: Objectives should be and administrative components of the availability of funds. Awards made will reasonable and feasible and should proposal, including salaries and be subject to periodic reporting and coincide with those for the FLEX honoraria, should be kept as low as evaluation requirements. program stated above. Proposals should possible. All other items should be Notification clearly demonstrate how the institution necessary and appropriate. will meet the program’s objectives and 10. Cost-sharing: Proposals should Final awards cannot be made until plan. maximize cost-sharing through other funds have been appropriated by 4. Multiplier effect/impact: Proposed private sector support as well as Congress, allocated and committed programs should strengthen long-term institutional direct funding through internal Bureau procedures. mutual understanding, including contributions. Dated: September 7, 1999. maximum sharing of information and William P. Kiehl, establishment of long-term linkages. Authority 5. Support of Diversity: Proposals Overall grant making authority for Acting Deputy Associate Director for Educational and Cultural Affairs. should demonstrate substantive support this program is contained in the Mutual of the Bureau’s policy on diversity both Educational and Cultural Exchange Act [FR Doc. 99–23661 Filed 9–10–99; 8:45 am] in host community and family of 1961, Public Law 87–256, as BILLING CODE 8230±31±M placements and in program content amended, also known as the Fulbright- (e.g., orientation, enhancement Hays Act. The purpose of the Act is to UNITED STATES INFORMATION activities, community service). enable the Government of the United AGENCY 6. Institutional Capacity: Proposed States to increase mutual understanding personnel and institutional resources between the people of the United States U.S. Advisory Commission on Public should be adequate and appropriate to and the people of other countries; to Diplomacy Meeting ensure that all functions are carried out strengthen the ties which unite us with efficiently to achieve the program goals. other nations by demonstrating the AGENCY: United States Information 7. Institution’s Record/Ability: educational and cultural interests, Agency. Proposals should demonstrate an developments, and achievements of the ACTION: Notice. institutional record of successful people of the United States and other exchange programs, including nations and thus to assist in the SUMMARY: The U.S. Advisory responsible fiscal management and full development of friendly, sympathetic Commission on Public Diplomacy will compliance with all reporting and peaceful relations between the meet on September 15 in Room 600, 301 requirements for past Bureau grants as United States and the other countries of 4th Street, SW, Washington, DC, from determined by contracting authorities. the world. The funding authority for the 9:00 a.m. to 10:00 a.m. The Bureau will consider the past program above is provided through FOR FURTHER INFORMATION CONTACT: performance of prior recipients and the legislation pertaining to the Bureau and Please call Jim Conley, (202 619–4457, demonstrated potential of new Foreign Operations appropriations. if you are interested in attending the applicants. Notice meeting. Space is limited and entrance 8. Project Evaluation: Proposals to the building is controlled. should include a plan to evaluate the The terms and conditions published activity’s success, both as the activities in this RFP are binding and may not be Dated: September 3, 1999. unfold and at the end of the program. A modified by any Bureau representative. Rose Royal, draft survey questionnaire or other Explanatory information provided by Management Analyst Federal Register technique plus description of a the Bureau that contradicts published Liaison. methodology to use to link outcomes to language will not be binding. Issuance [FR Doc. 99–23662 Filed 9–10–99; 8:45 am] original project objectives is of the RFP does not constitute an award BILLING CODE 8230±01±M
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DEPARTMENT OF LABOR loss, which is distinguishable from After considering the recurrent hearing loss associated with aging or incidence of noise-induced hearing loss Mine Safety and Health Administration with medical conditions. For many among miners and repeated years, the risk of acquiring noise- recommendations from the mining 30 CFR Parts 56, 57, 62, 70 and 71 induced hearing loss was accepted as an community that MSHA adopt a single RIN 1219±AA53 inevitable consequence of mining noise standard covering all mines, occupations, in which the use of MSHA published an Advance Notice of Health Standards for Occupational mechanized equipment often subjects Proposed Rulemaking (ANPRM) (54 FR Noise Exposure miners to hazardous noise exposures. 50209) on December 4, 1989. In But noise-induced hearing loss can be response, the Agency received AGENCY: Mine Safety and Health diagnosed, prevented, and its progress numerous comments from mine Administration (MSHA), Labor. delayed. operators, trade associations, labor ACTION: Final rule. Prolonged exposure to noise over a groups, equipment manufacturers, and period of years generally causes other interested parties. SUMMARY: This final comprehensive rule permanent damage to the auditory nerve After reviewing the comments to the replaces MSHA’s existing standards for or its sensory components. Hearing loss ANPRM, MSHA published a proposed occupational noise exposure in coal is rapid when exposures are over a rule (61 FR 66348) on December 17, mines and metal and nonmetal mines. prolonged period at high sound levels. 1996. The comment period, originally The final rule establishes uniform Hearing loss may also be gradual, so that scheduled to close on February 18, requirements to protect the Nation’s the impairment is not noticed until after 1997, was extended to April 21, 1997 miners from occupational noise-induced a substantial amount of hearing loss (62 FR 5554), and 6 public hearings hearing loss. The rule is derived in part occurs. Noise-induced hearing loss is were conducted in Beckley, West from existing MSHA noise standards, irreversible. Considerable safety risks Virginia; St. Louis, Missouri; Denver, and from the Department of Labor’s arise because workers with noise- Colorado; Las Vegas, Nevada; Atlanta, existing occupational noise exposure induced hearing loss may not hear Georgia; and Washington, D.C. standard for general industry audible warnings and safety signals. In Transcripts of the proceedings were promulgated by the Occupational Safety addition, most people with noise- made available to the public. and Health Administration (OSHA). induced hearing loss have reduced Supplementary statements and data As a result of the Agency’s ongoing hearing sensitivity to higher frequencies were received from interested persons review of its safety and health and lose the ability to discriminate until the record closed on August 1, standards, MSHA determined that its consonants, making them unable to 1997. existing noise standards, which are distinguish among words differing only After the close of the record, NIOSH more than twenty years old, do not by one or more consonants. This sent MSHA a report entitled, adequately protect miners from impairment jeopardizes the safety of ‘‘Prevalence of Hearing Loss For Noise- occupational noise-induced hearing affected miners as well as the safety of Exposed Metal/Nonmetal Miners.’’ On loss. A significant risk to miners of those around them, and, as a result, December 16, 1997, MSHA published a material impairment of health from general employee health and notice (62 FR 65777) announcing that workplace exposure to noise over a productivity. the report was available and had been working lifetime exists when miners’ Revising the existing rules to protect entered into the rulemaking record. exposure exceeds an 8-hour time- miners from noise-induced hearing loss Then, on December 23, 1997, MSHA weighted average (TWA8) of 85 dBA. is necessary because exposure to published a follow-up notice (62 FR MSHA expects that the final rule will workplace noise continues to present a 67013) inviting interested persons to significantly reduce the risk of material significant risk of material impairment comment on the NIOSH report, with the impairment within the mining industry of health to miners. MSHA estimates comment period closing on February 23, as a whole. that 13.4% of the mining population of 1998. DATES: The final rule is effective the United States (approximately 13,000 Early commenters on the proposal September 13, 2000. coal miners and 24,000 metal and expressed concern that the spirit of FOR FURTHER INFORMATION CONTACT: nonmetal miners) will develop a section 103(c) of the Federal Mine Carol J. Jones, Acting Director, Office of material hearing impairment during a Safety and Health Act of 1977 (Mine Standards, Regulations, and Variances, working lifetime under current working Act) was not being met. Section 103(c) MSHA, 4015 Wilson Boulevard, conditions. MSHA anticipates that requires that miners or their Arlington, VA 22203–1984. Ms. Jones miners will benefit substantially from representatives be allowed to observe can be reached at [email protected] the final rule’s effect of improving miner any monitoring or measuring of hazards (Internet E-mail), 703/235–1910 (voice), health and lessening the personal and in their workplaces and to have access or 703/235–5551 (fax). social hardships of occupational noise- to monitoring records. Proposed induced hearing loss. § 62.120(f) contained a provision SUPPLEMENTARY INFORMATION: requiring operators to establish a system b. Rulemaking Process I. Background of monitoring for effectively evaluating MSHA’s existing noise standards in each miner’s noise exposure, but did not a. Noise-Induced Hearing Loss metal and nonmetal mines (30 CFR require that miners be allowed to Noise is one of the most pervasive §§ 56.5050 and 57.5050) and in coal observe. health hazards in mining. The National mines (30 CFR §§ 70.500–70.511, and In response, on December 31, 1997, Institute for Occupational Safety and §§ 71.800–71.805) were originally MSHA published a notice (62 FR 68468) Health (NIOSH) has identified noise- promulgated in the early 1970’s. They supplementing its proposed rule with induced hearing loss as one of the ten were derived from the Walsh-Healey proposed § 62.120(g), asked for leading work-related diseases and Public Contracts Act occupational noise comments, and scheduled a public injuries. Exposure to hazardous sound standard, which adopted a permissible hearing. The comment period for the levels results in the development of exposure level of 90 dBA, a 5–dB supplement closed on February 17, and occupational noise-induced hearing exchange rate, and a 90–dBA threshold. a public hearing was held in
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Washington, DC on March 10. The post- is issued based exclusively on the industry will accrue. The existing hearing comment period and exposure measurement. In coal mines, a costly, paperwork-intensive rulemaking record closed on April 9, citation is not issued if appropriate requirements for biannual coal miner 1998. hearing protectors are being worn. noise exposure surveys, supplemental On May 26, 1998, MSHA published a Moreover, when a coal mine operator noise surveys, calibration reports, notice (63 FR 28496) announcing its receives a citation for noise exposure survey reports, and survey certifications preliminary determination of no exceeding the permissible exposure are eliminated by the final rule. Rather, significant environmental impact; level, the operator is required to the final rule has a flexible requirement requesting comments; and reopening the promptly institute administrative and/or for mine operators to establish a rulemaking record for the limited engineering controls to assure monitoring program that effectively purpose of receiving these comments. compliance. In addition, within 60 days evaluates miner exposures. The agency received many comments of receiving the citation, a coal mine on the proposed noise rule, including operator is required to submit a plan to II. Final Rule the supplemental proposed rule on MSHA for the administration of a a. General Requirements Applicable to observation of monitoring. The agency continuing, effective hearing All Mines received a total of 182 written and conservation program. electronic comments. In addition, 57 The Federal Mine Safety and Health The following summarizes general speakers provided verbal comments at Review Commission (Commission) has requirements for all mines in the final the public hearings. Comments were addressed the ‘‘feasibility’’ of noise rule although, the rule and this received from various entities including controls regarding the existing preamble should be consulted for mine operators, industry trade standards. In determining technological details. A mine operator must establish associations, such as the National feasibility, the Commission has held a system of monitoring which evaluates Mining Association, National Stone that a control is deemed achievable if each miner’s noise exposure. In Association, American Iron and Steel through reasonable application of addition, the mine operator must give Institute and American Portland Cement existing products, devices, or work prior notice and provide affected miners Alliance; organized labor groups, such methods with human skills and and their representatives with an as the United Mine Workers of America abilities, a workable engineering control opportunity to observe the monitoring. and the United Steelworkers of can be applied to the noise source. The When an exposure equals or exceeds the America; noise equipment control does not have to be ‘‘off-the- action level, exceeds the permissible manufacturers; the American Industrial shelf;’’ but it must have a realistic basis exposure level, or exceeds the dual Hygiene Association; the National in present technical capabilities. In hearing protection level, the mine Hearing Conservation Association; the determining economic feasibility, the operator must notify a miner of his or Acoustical Society of America; colleges Commission has held that MSHA must her exposure. A copy of the notification and universities; and other Federal assess whether the costs of the control must be kept for the duration of the agencies, such as NIOSH and the U.S. are disproportionate to the ‘‘expected affected miner’s exposure at or above Small Business Administration. benefits’’, and whether the costs are so the action level and for at least 6 months great that it is irrational to require its c. Current Standards thereafter. use to achieve those results. The MSHA’s existing maximum noise Commission has expressly stated that If a miner’s noise exposure is less exposure levels for metal and nonmetal cost-benefit analysis is unnecessary in than the action level, no action is mines (30 CFR 56/57.5050) and for coal order to determine whether a noise required by the mine operator. If the mines (30 CFR 70.500 through 70.511 control is required. According to the miner’s exposure equals or exceeds the and 71.800 through 71.805), were Commission, an engineering control action level, but does not exceed the derived from the Walsh-Healey Public may be feasible even though it fails to permissible exposure level, the operator Contracts Act occupational noise reduce exposure to permissible levels must enroll the miner in a hearing standard. The standards adopted a contained in the standard, as long as conservation program which includes a permissible exposure level of 90 dBA as there is a significant reduction in system of monitoring, voluntary use of an eight-hour time weighted average exposure. In Todilto Exploration and operator-provided hearing protectors, and a 5–dB exchange rate. Development Corporation, 5 FMSHRC voluntary audiometric testing, training, MSHA’s existing metal and nonmetal 1894 (1983), the Commission accepted and record keeping. If a miner’s noise standards require the use of the Agency’s determination that a 3 dBA exposure exceeds the permissible feasible engineering or administrative reduction is significant. exposure level, the operator must use or controls when a miner’s noise exposure MSHA has interpreted the ‘‘expected continue to use all feasible engineering exceeds the permissible exposure level. benefits’’ to be the amount of noise and administrative controls to reduce Hearing protectors are also required if reduction achievable by the control. exposure to the permissible exposure the exposure cannot be reduced to MSHA generally considers a reduction level, enroll the miner in a hearing within the permissible exposure level. of 3 dBA or more to be a significant conservation program including The existing metal and nonmetal reduction of the sound level because it ensuring the use of operator-provided standards do not require the mine represents at least a 50% reduction in hearing protectors, post administrative operator to post the procedures for any sound energy. Consequently, a control controls and provide a copy to the administrative controls used, to conduct that achieves relatively little noise affected miner; and must never permit specific training, or to enroll miners in reduction at a high cost could be viewed a miner to be exposed to sound levels hearing conservation programs. as not meeting the Commission s test of exceeding 115 dBA. If a miner’s MSHA’s existing practices for coal economic feasibility. exposure exceeds the dual hearing mines are different from those for metal MSHA estimates that the costs protection level, the operator must and nonmetal mines due to differences attributable to the final rule requirement enroll the miner in a hearing in the circumstances under which the to use engineering and administrative conservation program, continue to meet Agency is authorized to issue citations. controls would be significantly offset by all the requirements for exposures above In metal and nonmetal mines, a citation the paperwork savings the coal mining the permissible exposure level, and
VerDate 18-JUN-99 17:20 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\13SER2.XXX pfrm07 PsN: 13SER2 49550 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations ensure the concurrent use of an earplug level. In response to commenters, the less reduction than their ratings suggest and earmuff. final rule requires only that mine and that the reduction achieved is operators offer audiometric testing, highly variable. These two factors b. Major Features of the Final Rule leaving it to the miner to decide prevent accurate prediction of the Consistent with OSHA’s noise whether to participate in the testing effectiveness of hearing protectors for a exposure standard, MSHA has adopted program. given individual. However, MSHA the existing permissible exposure level The proposed rule would have recognizes that in some environments it of 90 dBA as an 8-hour time-weighted required that mine operators ensure that may not be feasible to reduce miners’ average (TWA8). The final rule, miners were not exposed to workplace noise exposures to the permissible however, requires the use of all feasible noise during a 14-hour quiet period exposure level with the use of engineering and administrative controls required before a baseline audiogram is engineering or administrative controls. to reduce a miner’s noise exposure to taken. In addition, the use of hearing In these circumstances, the interim use the permissible exposure level. Such protectors would not have been of personal hearing protectors may offer controls may be used separately or in permitted as a substitute for the quiet the best protection until controls combination. When controls do not period. Many commenters suggested become feasible and can be reduce exposure to the permissible that prohibiting the use of hearing implemented. exposure level, miners must be protectors to meet the quiet period provided hearing protectors and mine requirement was not practical, because The final rule is consistent with operators are required to ensure that the many miners work 12-hour shifts and Executive Order 12866, the Regulatory miners use them. that OSHA’s noise standard allows Flexibility Act, the Small Business The final rule also addresses a hearing protection to be used during the Regulatory Enforcement Fairness Act currently recognized hazard that is not quiet period. The final rule permits the (SBREFA), the National Environmental covered by existing standards: noise use of hearing protectors during the Policy Act (NEPA), the Paperwork exposures at or above a TWA8 of 85 dBA quiet period. Reduction Act, the Unfunded Mandates but below the permissible exposure The proposed rule would have Reform Act, and the Mine Act. MSHA level. Exposure at a TWA8 of 85 dBA is required a mine operator, upon estimates that metal and nonmetal termed the ‘‘action level,’’ and, under termination of a miner’s employment, to mines with fewer than 20 miners would the final rule, mine operators are provide the miner with a copy of the incur an average cost increase of about required to enroll miners exposed at or records required under part 62. $460 annually. Coal mines with fewer above the action level in a hearing Commenters overwhelmingly supported than 20 miners would have an average conservation program consisting of giving copies of records only to those cost increase of about $400, reflecting exposure monitoring, the use of hearing miners who request them. In response to the elimination of the numerous survey protectors, audiometric testing, training, comments, the proposed provision was and paperwork requirements in the and recordkeeping. not adopted in the final rule, and the current noise rules for the coal sector. The final rule has been revised from final rule instead requires that mine the proposal in several respects, which operators provide copies of records to In accordance with the SBREFA makes it more consistent with existing miners upon request. Amendments to the Regulatory OSHA regulations: The final rule departs from the OSHA Flexibility Act, MSHA has taken steps MSHA had proposed that all sound noise standard in several respects: to minimize the compliance burden on levels between 80 dBA and 130 dBA be The final rule adopts the proposed small mines. The effective date of the included in determining exposure for ‘‘dual hearing protection level’’ at a final rule, one year after promulgation, both the action level and permissible TWA8 of 105 dBA. This requirement for provides time for small mines to achieve exposure level. Based on comments dual hearing protection is supported by compliance. In addition, MSHA is received, the final rule requires research showing that greater noise mailing a copy of the final rule to each inclusion of sound levels between 90 reduction results from the use of both mine operator, which benefits small dBA and at least 140 dBA for earplugs and earmuffs than from either mine operators. determining exposure with respect to type of hearing protector alone. MSHA anticipates that the mining the permissible exposure level. The Accordingly, mine operators must community will benefit substantially final rule adopts the proposed inclusion provide and require the use of both an from the final rule. The primary benefit of sound levels from 80 dBA to at least earplug and an earmuff at a TWA8 of will be a sizable reduction, by as much 130 dBA for determining exposure with 105 dBA. as two-thirds, in the incidence of respect to the action level. The final rule does not include occupational hearing impairment among In response to the proposed definition detailed, technical procedures and miners. The final rule will also serve to of a hearing conservation program, criteria for conducting audiometric mitigate the progression of hearing loss commenters suggested that, for the sake testing. Rather, the rule is performance- in working miners and preserve the of consistency, the final rule adopt the oriented, requiring only that health and quality of life of miners existing definition included in the audiometric testing be conducted in newly entering the industry. OSHA noise standard. MSHA agrees accordance with scientifically validated and has revised the final rule to procedures, such as those in OSHA’s Two charts compare key features of incorporate all relevant elements of a noise standard. the final standard to MSHA’s existing hearing conservation program under Nor does the final rule require standards. Note that entries in the charts this definition. determining the adequacy of hearing and the discussions in the preamble The proposed rule would have protectors. Although OSHA’s noise reflect legal and/or policy required mine operators to ensure that standard includes such information in interpretations that would not be miners participate in an audiometric its mandatory Appendix B, MSHA’s apparent from the text of the standards. testing program if their noise exposures research on mining applications Other parts of this preamble should be were above the permissible exposure indicates that hearing protectors provide consulted for details.
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CHART 1: GENERAL REQUIREMENTS
Existing metal and Noise level Final rule nonmetal rules Existing coal rules
At or above a TWA8 of 85 Enroll miner in HCP which includes requirements for No requirements ...... No requirements. dBA (action level). training, monitoring, recordkeeping, voluntary hear- ing tests, voluntary use of operator-provided HP in most cases, but use of HP is mandatory in par- ticular instances. Above a TWA8 of 90 dBA Use or continue to use all feasible engineering and Use all feasible engineer- Use all feasible engineer- (PEL). administrative controls to reduce exposure to PEL; ing or administrative ing and/or administrative enroll miner in an HCP including ensuring use of controls and provide HP controls, but can first re- operator-provided HP, post administrative controls if noise level cannot be duce exposure by rated and provide copy to affected miner, never permit lowered to PEL. value of HP minus 7 un- miner to be exposed to sound levels exceeding 115 less cited for failure to dBA. require HP use; also must enroll miners in HCP if cited. At or above 105 dBA (dual Ensure concurrent use of earplug and earmuff type Limited requirement for N/A hearing protection level). HPs in addition to above requirements for the action dual HPs. level and PEL.
Abbreviations: HP (hearing protector), HCP (hearing conservation program), TWA8 (eight-hour time-weighted average), dBA (decibel, A-weight- ed), PEL (permissible exposure level); Hz (hertz), and n/a (not applicable).
COMPARISON CHART 2: GENERAL FEATURES
Existing metal and Feature Final rule nonmetal rules Existing coal rules
Monitoring ...... Operator must establish an effective system of moni- No requirement on mine Mine operator required to toring noise exposure. operator. conduct periodic moni- toring. Notification of exposure ...... Operator must notify miner of certain exposures ...... Not required ...... Not required. Dual Threshold (lowest 85 dBA for action level and 90 dBA for PEL ...... 90 dBA for PEL ...... 90 dBA for PEL. sound level counted). Exchange rate ...... 5 dB ...... 5 dB ...... 5 dB. Training ...... Specific training requirements ...... Part 48 ...... Part 48. Quiet period prior to 14 hours for baseline audiogram and use of HP per- N/A ...... N/A. audiometric examination. mitted. Standard Threshold shift ..... Average of 10 dB at 2000, 3000, and 4000 Hz in ei- N/A ...... N/A. ther ear. Reportable hearing loss ...... Average of 25 dB at 2000, 3000, and 4000 Hz in ei- Reporting required but Reporting required but ther ear. level was undefined. level was undefined. Employee access to records Available upon request ...... N/A ...... N/A. Abbreviations: HP (hearing protector), dBA (decibel, A-weighted), PEL (permissible exposure limit); Hz (hertz), n/a (not applicable).
III. Paperwork Reduction Act of 1995 number. The OMB control number, requirements for operators’’ and that the when assigned, will be announced by ‘‘paperwork involves one letter and two The information collection separate notice in the Federal Register. 32 cent stamps per year per coal requirements contained in this final rule In accordance with § 1320.11(h) of the operator.’’ The February 1984 Program have been submitted to the Office of implementing regulations, OMB has 60 Information Bulletin eliminated the Management and Budget (OMB) for days from today’s publication date in requirement for the completion and review under the Paperwork Reduction which to approve, disapprove, or submission to MSHA of a Coal Mine Act of 1995 (44 U.S.C. 3501–3520), as instruct MSHA to make a change to the Noise Data Report Form when operator implemented by OMB in regulations at information collection requirements in 5 CFR part 1320. The Paperwork noise exposure surveys are found to be this final rule. within compliance. The Program Reduction Act of 1995 (PRA 95) defines Recordkeeping requirements in the Information Bulletin retained the collection of information as ‘‘the final rule are found in §§ 62.110, 62.130, obtaining, causing to be obtained, 62.170, 62.171, 62.172, 62.173, 62.174, requirement that a written and signed soliciting, or requiring the disclosure to 62.175, 62.180, and 62.190. statement (certification) be submitted to third parties or the public of facts or MSHA received comments both MSHA that the required surveys were opinions by or for an agency regardless supporting and opposing the proposed made and that the surveys show of form or format.’’ (44 U.S.C. information collection requirements. compliance. The Program Information 3502(3)(A)). Under PRA 95, no person MSHA has reviewed these comments. Bulletin did not drop the requirement may be required to respond to, or may Several commenters questioned for noise surveys to be conducted, be subjected to a penalty for failure to MSHA’s estimates of the paperwork exclude the requirement for comply with, these information burden reduction of the noise rule. Two supplemental noise surveys for collection requirements until they have commenters noted that the February exposures at or above the permissible been approved and MSHA has 1984 Program Information Bulletin 84– exposure level (and a submission of announced the assigned OMB control 1C ‘‘eliminated virtually all paperwork them), or eliminate the requirement of
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.006 pfrm08 PsN: 13SER2 49552 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations surveying all miners and retaining a in a number of ways including the use example, the evidence may consist of a record. of existing monitoring records single statement from the audiometric In addition, as MSHA stated in the (particularly for coal mine operators), test provider or a single billing record proposal, there are labor and equipment review of MSHA sampling records, or that indicates that required procedures costs related to performing the surveys by the use of representative sampling. were followed for a number of twice a year, completing survey reports Since mine operators are not audiograms. and certifications, doing calibration specifically required by the final rule to The proposed rule would have reports annually, and collecting a noise monitor each employee but may use a required mine operators to provide monitoring record for all coal miners. more flexible approach, MSHA miners with a copy of all their records Under PRA 95, all activities related to anticipates that its estimates of an relating to this standard when those the generation of a paperwork item must average of 2 hours and 5 hours annually miners terminate employment. be considered when calculating the at small and large mines respectively Commenters stated that this was an costs and burden of paperwork tasks. (reflecting 30 minute monitoring for unnecessary requirement which For these reasons, MSHA’s estimates in each of four miners in a small mine and generated too much paper and that the final rule are consistent with the ten miners in a large mine) are miners may not even want a copy of the requirements of PRA 95. reasonable. Other commenters stated that they Another commenter questioned if records. In response, the final rule will still have to conduct surveys, retain there will be an observation time limit requires mine operators to provide survey records, conduct training and and also believed that MSHA’s estimate copies of records to a miner if the miner audiometric testing, and implement of 5 hours annually was too low. Also, requests such records. engineering and administrative controls a commenter questioned MSHA’s Numerous commenters stated that to demonstrate compliance. The existing estimates of lost production, the length records should not have to be retained standards require coal mine operators to of time needed for observation, and at the mine site. MSHA agrees and the perform semiannual monitoring for each MSHA’s average time estimates per final rule provides that records are not miner. Under the final rule, mine small mine and per large mine. A required to be maintained at the mine operators must establish a system of commenter also believed that the total site, and therefore can be electronically monitoring that evaluates each miner’s estimated annual information collection filed in a central location, so long as the noise exposure sufficiently to determine burden was low. With the exception of records are made available to the continuing compliance with this part. the one commenter who provided the authorized representative of the However, under the final rule mine estimate of 12,000 hours annually to Secretary upon request within a operators may use their own monitoring observe monitoring, none provided data reasonable time, in most cases one day. records as well as the Agency’s data to support their statements. Although the final rule does not from inspector sampling to determine At the public hearing, several require backing up the data, some compliance. commenters testified that they means are necessary to ensure that Some commenters stated that the considered MSHA’s time estimates and electronically stored information is not performance-based system of photocopy cost estimates high. In compromised or lost. MSHA encourages monitoring may result in increased particular, they believed that the time to mine operators who store records monitoring. MSHA anticipates that a give instructions to the secretary were electronically to provide a mechanism number of mine operators will use some excessive. Further, they stated MSHA’s that will allow the continued storage form of representative sampling within estimates for the length of time to and retrieval of records in the year 2000. job classes or work areas to minimize perform typing and posting were too costs related to dose determination. In high. Other commenters stated that the MSHA solicited comment on what addition, large operators who use the bulk of the paperwork would be actions would be required, if any, to same equipment on more than one shift completed by safety professionals and facilitate the maintenance of records in may conduct monitoring on a single industrial hygienists as opposed to electronic form by those mine operators shift to determine miner exposures, clerical workers. Based upon a review of who desire to do so, while ensuring provided that the circumstances are all the comments and MSHA’s access in accordance with these similar. experience, the Agency believes the requirements. The Agency received The Agency published a estimates in the final rule are several comments supporting electronic supplemental proposal that would give reasonable. storage of records, but no specifics affected miners and their The proposed rule would have regarding actions required to facilitate representatives the right to observe required mine operators to obtain from the maintenance of the records in operator monitoring. MSHA estimated the physician, audiologist, or qualified electronic form. In revising the that the time required for observation of technician who conducts an requirements from those that appeared monitoring would take about 2 hours audiometric test a certification that each in the proposed rule, MSHA has annually at small mines and about 5 test was conducted in accordance with evaluated the necessity and usefulness hours annually at large mines. Several scientifically validated procedures. of the collection of information; commenters questioned the Agency’s Commenters stated that requiring mine reevaluated MSHA’s estimate of the estimates. One commenter questioned operators to obtain a certification for information collection burden, the Agency’s estimate of 5 hours for a each individual audiogram was unduly including the validity of the underlying large mine. The commenter believed burdensome. The Agency agrees and the methodology and assumptions; and that for a mine which employed 1,500 proposed certification requirement has minimized the information collection workers, 12,000 hours will be spent on not been adopted in the final rule. burden on respondents to the greatest noise monitoring (1,500 workers * an 8 Under the final rule, evidence is simply extent possible. The following charts hour workday). Under the final rule, required that the audiograms were provide, by section, the paperwork mine operators will need to determine conducted in accordance with requirements for Year 1 and for each miners’ exposure; this may be achieved scientifically validated procedures. For succeeding year, respectively.
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TABLE 1.ÐSUMMARY OF NET INFORMATION COLLECTION BURDEN HOURS IN YEAR 1
Coal mines M/NM mines Section Paperwork requirements and associated tasks Total Small Large Small Large
62.110 to 62.130 ...... Evaluate noise exposure; notify miners, pre- (7,988) (50,666) 14,605 12,579 (31,471) pare, post, and distribute administrative controls; and permit observation of moni- toring. 62.170 ...... Perform audiograms; and notify miners to ap- 940 4,181 3,577 5,271 13,969 pear for testing and of need to avoid high noise levels. 62.171 ...... Compile an audiometric test record; and ob- 1,021 4,616 3,882 5,820 15,339 tain evidence. 62.172 ...... Provide information and audiometric test 1,413 4,374 5,474 5,513 16,774 record; and perform audiometric retests. 62.173 ...... Perform otological evaluations; and provide 7 27 29 34 98 information and notice. 62.174 ...... Prepare a retraining certification; and review 105 334 407 420 1,266 effectiveness of engineering and adminis- trative controls. 62.175 ...... Inform miners of test results and tSTS...... 1,038 4,623 3,950 5,829 15,440 62.180 ...... Prepare and file a training certificate...... 1,280 4,165 4,957 5,180 15,581 62.190 ...... Provide access to, and transfer, records ...... 244 303 1,027 915 2,489
Total ...... (1,941) (28,045) 37,909 41,561 49,484
TABLE 2.ÐSUMMARY OF NET INFORMATION COLLECTION BURDEN HOURS FOR AFTER YEAR 1
Coal mines M/NM mines Section Paperwork requirements and associated tasks Total Small Large Small Large
62.110 to 62.130 ...... Evaluate noise exposure; notify miners, pre- (8,532) (48,006) 6,595 3,567 (46,376) pare, post, and distribute administrative controls; and permit observation of moni- toring. 62.171 ...... Compile an audiometric test record; and ob- 153 692 582 873 2,301 tain evidence. 62.172 ...... Provide information and audiometric test 212 656 821 827 2,516 record; and perform audiometric retests. 62.173 ...... Perform otological evaluations; and provide 1 4 4 5 15 information and notice. 62.174 ...... Prepare a retraining certification; and review 16 53 62 67 198 effectiveness of engineering and adminis- trative controls. 62.175 ...... Inform miners of test results and STS ...... 156 694 593 874 2,316
Total ...... (7,994) (45,907) 8,658 6,213 (39,029)
Executive Order 12866 and Regulatory monetization of these benefits would be entities. Traditionally, MSHA considers Flexibility Analysis difficult and inappropriate. small mines to be mines with fewer than In accordance with Executive Order Based upon the economic analysis, 20 employees. Under the Regulatory 12866, MSHA has prepared a final MSHA has determined that this rule is Flexibility Act, MSHA must use the analysis of the estimated costs and not an economically significant SBA definition for a small mine of 500 benefits associated with the revisions of regulatory action pursuant to section employees or fewer or, after the noise standards for coal and metal 3(f)(1) of Executive Order 12866. The consultation with the SBA Office of and nonmetal mines. Agency does consider this rulemaking Advocacy, establish an alternative The final Regulatory Economic significant under section 3(f)(4) of the definition in the Federal Register for Analysis containing this analysis is Executive Order for other reasons, and notice and comment. The alternative available from MSHA. The final rule has so designated the rule in its annual definition could be the Agency’s will cost approximately $8.7 million agenda. traditional definition of ‘‘fewer than 20 miners’’ or some other definition. As annually and will prevent or contribute Regulatory Flexibility Certification to the prevention of approximately 595 reflected in the certification, MSHA hearing impairment cases annually. The In accordance with section 605 of the analyzed the costs of this final rule for benefits are expressed in terms of cases Regulatory Flexibility Act, the Mine small and large mines using both the of hearing impairment that can be Safety and Health Administration traditional Agency definition and SBA’s avoided and have not been monetized. certifies that the final noise rule does definition, as required by the Regulatory Although the Agency has attempted to not have a significant economic impact Flexibility Act, of a small mine. No quantify the benefits, it believes that on a substantial number of small small governmental jurisdictions or
VerDate 18-JUN-99 17:20 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\13SER2.XXX pfrm07 PsN: 13SER2 49554 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations nonprofit organizations are adversely begins with a ‘‘screening’’ analysis. The such a quantitative analysis. The affected. screening compares the estimated Agency is fully cognizant of the Under the Small Business Regulatory compliance costs of the final rule for diversity of mining operations in each Enforcement Fairness Act (SBREFA) small mine operators in the affected sector, and has applied that knowledge amendments to the Regulatory sector to the estimated revenues for that as it developed the final rule. Flexibility Act, MSHA must include in sector. When estimated compliance In determining revenues for coal the final rule a factual basis for this costs are less than 1 percent of mines, MSHA multiplied coal certification. The Agency must also estimated revenues (for the size production data (in tons) for mines in publish the regulatory flexibility categories considered), the Agency specific size categories (reported to certification statement in the Federal believes it is generally appropriate to Register, along with the factual basis, MSHA quarterly) by $18.14 per ton, conclude that there is no significant Department of Energy (1997). For metal followed by an opportunity for the impact on a substantial number of small public to comment. The Agency has and nonmetal mines, the Agency entities. When estimated compliance estimated revenues for specific mine consulted with the Small Business costs approach or exceed 1 percent of Administration (SBA) Office of size categories as the proportionate revenue, it tends to indicate that further share of these mines’ contribution to the Advocacy and believes that this analysis analysis may be warranted. provides a reasonable basis for the Gross National Product, Department of certification in this case. Derivation of Costs and Revenues Interior (1998). In the proposal, MSHA specifically The Agency performed its analysis Results of Screening Analysis solicited comments on the Agency’s separately for two groups of mines: the regulatory flexibility certification coal mining sector as a whole, and the As shown in the following chart, for statement, including cost estimates and metal and nonmetal mining sector as a coal mine operators with fewer than 20 data sources. To facilitate public whole. Based on a review of available employees, the estimated yearly cost of participation in the rulemaking process, sources of public data on the mining the final rule is $400 per mine operator, MSHA mailed a copy of the proposal industry, the Agency believes that a and estimated yearly costs as a and will mail a copy of the final rule, quantitative analysis of the impacts on percentage of revenues are 0.08 percent. including the preamble and regulatory various mining subsectors (that is, As shown in the next chart, for coal flexibility certification statement, to beyond the 4-digit SIC level) is not mine operators with 500 or fewer every mine operator and miners’ feasible. The Agency requested employees, the estimated yearly savings representative. comments, however, on whether there from the final rule are $634 per mine Factual Basis for Certification are special circumstances that warrant operator. The savings are due to the separate quantification of the impact of elimination of existing coal industry General Approach this final rule on any mining subsector requirements for performing and The Agency’s analysis of impacts on and information on how it might readily recording semiannual surveys and other ‘‘small entities’’ and ‘‘small mines’’ obtain the data necessary to conduct related surveys and reports.
TABLE 1.ÐTHE IMPACT OF FINAL RULE ON THE COAL MINING INDUSTRY *
Estimated Cost as per- Mine type Estimated Estimated revenue cost per cent of rev- costs mine enue
Small (<20) ...... $603,941 $767,307,869 $400 0.08 Large (≥20) ...... 763,112 18,964,691,818 727 0.00 * Source: Preliminary Data 1997 from CM441 and Department of Energy/Energy Information Agency. Annual Energy Review 1997. POE/EIA± 038497. July 1998. P. 187.
TABLE 2.ÐTHE IMPACT OF FINAL RULE ON THE COAL MINING INDUSTRY *
Estimated Cost as per- Mine type Estimated Estimated revenue cost per cent of rev- costs mine enue
Small (≤500) ...... $1,296,461 $19,038,974,646 $508 0.01 Large (<500) ...... 70,592 693,025,041 6,403 0.01 * Source: Preliminary Data 1997 from CM441 and Department of Energy/Energy Information Agency. Annual Energy Review 1997. POE/EIA± 038497. July 1998, P. 187.
As shown in the following chart, for operator, and estimated costs as a fewer employees, the estimated yearly metal/nonmetal mines with fewer than percentage of revenues are 0.04 percent. cost is $617 per mine operator, and 20 employees, the estimated yearly cost As shown in the next chart, for metal/ estimated costs as a percentage of of the final rule is $414 per mine nonmetal mine operators with 500 or revenues are 0.02 percent.
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TABLE 3.ÐTHE IMPACT OF FINAL RULE ON THE METAL/NONMETAL MINING INDUSTRY *
Estimated Cost as per- Mine type Mine costs Estimated revenue Cost per cent of rev- mine enue
Small (<20) ...... $4,321,282 $10,651,022,009 $460 0.04 Large (≥20) ...... 3,056,036 27,348,977,991 1,945 0.01 * Source: Preliminary Data 1997 from CM441 and Department of Interior, Bureau of Mines, Mineral.
TABLE 4.ÐDISTRIBUTION OF MINE OPERATIONS AND EMPLOYMENT BY MINE TYPE AND SIZE INCLUDING INDEPENDENT CONTRACTORS AND CONTRACTOR WORKERS POTENTIALLY AFFECTED BY THE FINAL RULE *
Coal Metal/nonmetal Mine Size (No. of employees) No. of No. of min- Miners per No. of No. of min- Miners per mines ers mine mines ers mine
Small (<20) ...... 2,401 14,347 5.97 10,098 56,859 5.63 Large (≥20) ...... 1,133 82,142 72.48 1,666 122,378 73.45
Total ...... 3,535 96,489 27.30 11,764 179,238 15.24 * Source: Table 2 and Table 3. Office workers are not included in these employment figures.
In all cases, the cost of complying and lowering the exchange rate to 3 dB. voluntary. In this regard, it is also with the final rule is less than one In both cases, the scientific evidence in compatible with OSHA’s noise percent of revenues, well below the favor of these approaches was strong, standard. level suggesting that the final rule might but commenters offered divergent views In addition, under the proposal, mine have a significant impact on a on the alternatives. In both cases, for the operators would not have been allowed substantial number of small entities. purpose of this final rule, MSHA has to use hearing protectors as a substitute Accordingly, MSHA has certified that concluded that it would not be feasible for the 14-hour quiet period prior to an there is no such impact on small coal for the mining industry to accomplish audiogram. Mine operators had stated mines or small metal/nonmetal mines. these more protective approaches. The that they could not, without substantial impact of these approaches on small burden to production and management, Regulatory Alternatives Considered mine operators was an important meet this requirement. Some noted that The limited impacts on small mines, consideration in this regard. in cases in which the audiometric regardless of size definition, reflect Further, MSHA proposed using an 80- testing cannot be scheduled on a day decisions by MSHA not to include more dBA threshold for determining the after a non-work day, the only way to costly regulatory alternatives. In permissible exposure level. If the ensure a 14-hour quiet period was to considering regulatory alternatives for Agency had done this, the number of pay the miner not to work. Under the small mines, MSHA must observe the mines with exposure levels at or above final rule, mine operators may use requirements of its authorizing statute. the permissible exposure level would hearing protectors as a substitute for the Section 101(a)(6)(A) of the Mine Act have increased substantially. quiet period. Again, this is compatible requires the Secretary to set standards Accordingly, with more mines above with OSHA’s noise standard. which most adequately assure, on the this level, the total cost of compliance Paperwork Impact basis of the best available evidence, that would have been higher, including no miner will suffer material penalties. Many commenters opposed In accordance with the Regulatory impairment of health over his/her the change in the threshold. They Flexibility Act and the Paperwork working lifetime. In addition, the Mine believed that the current 90-dBA Reduction Act of 1995, MSHA has Act requires that the Secretary, when threshold was sufficient for achieving analyzed the paperwork burden for both promulgating mandatory standards adequate health protection for miners metal and nonmetal and coal mines. pertaining to toxic materials or harmful and was compatible with OSHA’s noise While the final rule results in a net physical agents, consider other factors, standard. Additionally, as discussed in paperwork burden decrease for large such as the latest scientific data in the more detail later in the preamble, coal mines in year one and both small field, the feasibility of the standard, and MSHA did not intend to change the and large coal mines after year one, experience gained under the Act and permissible exposure level for noise. A there will be an increase in paperwork other health and safety laws. Thus, the change in the threshold would have had burden hours for small coal mines in Mine Act requires that the Secretary, in this effect. For these reasons, the final year one and in metal and nonmetal promulgating a standard, attain the rule includes the existing threshold for mines’ year one and every year highest degree of health and safety the permissible exposure level. thereafter. protection for the miner, based on the Under the proposal, the mine operator For small coal mines with fewer than ‘‘best available evidence,’’ with would have had to make certain that 20 miners the final rule will result in an feasibility as a consideration. miners exposed above the permissible increase of about 485 paperwork burden As a result of this statutory exposure level take the audiometric hours in year one. After year one there requirement, MSHA considered two examination. Several commenters will be a savings of 4,438 paperwork alternatives that would have expressed concerns about the burden hours for small coal mines. For significantly increased costs for small enforceability of this provision. MSHA large coal mines with 20 or more mine operators lowering the permissible considered these concerns, and under miners, the final rule will result in a exposure level to a TWA8 of 85 dBA, the final rule, audiometric testing is decrease of about 10,405 paperwork
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.012 pfrm08 PsN: 13SER2 49556 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations burden hours in year one, and a savings and for MSHA to brief the mining in accordance with NEPA, the CEQ and of 28,498 each year thereafter. For metal community about the rule’s the Department’s procedural and nonmetal mines, the final rule will requirements. Also, as stated previously, regulations. MSHA’s preliminary result in an increase of paperwork MSHA will mail a copy of the final rule determination was based on its burden hours for both small and large to every mine operator, which benefits Regulatory Impact Analysis which mines. There will be an increase of small mine operators. The Agency has explained the costs and benefits of the 33,955 paperwork burden hours for committed itself to issuance of a proposed rule. MSHA has complied small metal and nonmetal mines and compliance guide for all mines; MSHA with the requirements of the NEPA, increase of 38,183 paperwork burden believes that compliance workshops or including the Department of Labor’s hours for large metal and nonmetal other approaches will be valuable and compliance procedures and the mines in year one. After year one, there the Agency will hold such workshops if regulations of the Council on will be an increase of 15,526 paperwork requested. Environmental Quality. The Agency has burden hours per year for small metal For this rulemaking’s Regulatory not received any new information or and nonmetal mines, and an increase of Flexibility Analysis, the Agency is using comments that would affect its previous 14,331 per year for large. its traditional definition of ‘‘small determination. As a result of the Although the substantial increases in mine’’ as a mine with fewer than 20 Agency’s review of the final noise rule, paperwork burden hours result from employees, in addition to the SBA’s MSHA has concluded that the rule will §§ 62.175 and 62.180 for coal mines, definition of operations with fewer than not have significant environmental these will be offset by the net savings of 500 employees, as required by the impacts, and therefore neither an §§ 62.110–62.130, which eliminate Regulatory Flexibility Act. For purposes environmental assessment nor an current requirements for biannual noise of this final rule, MSHA has continued environmental impact statement is surveys and other miscellaneous reports its past practice of using ‘‘under 20 required. In addition, MSHA believes and surveys in that sector. However, for miners’’ as the appropriate point of that the final rule will indirectly aid the metal and nonmetal mines there will be reference, in addition to SBA’s environment since many of the an increase in paperwork burden hours definition. Reviewers will note that the engineering controls which control associated with complying with the paperwork and cost discussions noise, such as mufflers and curtains, final rule. continue to refer to the impacts on also aid in controlling environmental As required by the Paperwork ‘‘small’’ mines with fewer than 20 pollutants. Reduction Act of 1995, MSHA has employees. The Agency has not included in its paperwork burden established a definition of ‘‘small Executive Order 13084 (Consultation estimates the time needed to perform entity’’ for purposes of the final rule. and Coordination With Indian Tribal tasks associated with information Based on this analysis, MSHA Governments) collection. For example, the final rule concludes that whatever definition of MSHA certifies that the final rule requires a mine operator to notify a ‘‘small entity’’ is eventually selected, does not impose substantial direct miner if the miner’s noise exposure the final noise rule does not have a compliance costs on Indian tribal equals or exceeds the action level. In significant economic impact on a governments. Further, MSHA provided order to determine if notification is substantial number of small entities. the public, including Indian tribal necessary, the mine operator must governments which operated mines, the Executive Order 13045: Protection of perform a dose determination. MSHA opportunity to comment on the proposal Children From Environmental Health has included the time needed for dose and to participate in the public hearing Risks and Safety Risks determination in its burden estimate, as process. No Indian tribal government required under PRA 95. In accordance with Executive Order applied for a waiver or commented on 13045, MSHA has evaluated the the proposal. Small Business Regulatory Enforcement environmental health and safety effects Fairness Act (SBREFA) of the final rule on children. The Executive Order 12612 Federalism In accordance with the Small Agency has determined that the final Executive Order 12612, regarding Business Regulatory Enforcement rule will have no adverse effects on federalism, requires that agencies, to the Fairness Act (SBREFA) amendments to children. extent possible, refrain from limiting the Regulatory Flexibility Act, MSHA state policy options, consult with states Environmental Assessment carefully considered all of the proposed prior to taking any actions which would requirements, in addition to alternatives The final noise rule has been restrict state policy options, and take to the proposal, to ensure that the final reviewed in accordance with the such actions only when there is clear rule would provide the least requirements of the National constitutional authority and the burdensome impact necessary to Environmental Policy Act (NEPA) of presence of a problem of national scope. promote miner health. MSHA believes 1969 (42 U.S.C. 4321 et seq.), the Because this final rule does not limit that it has complied with the SBREFA regulations of the Council of state policy options, it complies with amendments. Environmental Quality (CEQ) (40 CFR the principles of federalism and with The preamble to the proposed rule part 1500) and the Department of Executive Order 12612. included a full discussion of MSHA’s Labor’s NEPA compliance procedures preliminary conclusions about (29 CFR part 11). In the Federal Register Unfunded Mandates Reform Act of 1995 regulatory alternatives. The public was of May 26, 1998 (63 FR 28496), MSHA MSHA has determined that, for invited to suggest additional alternatives made a preliminary determination that purposes of § 202 of the Unfunded for compliance. the proposed noise rule was of a type Mandates Reform Act of 1995, this final MSHA is taking several actions to that does not have a significant impact rule does not include any Federal minimize the compliance burden on on the human environment. In response, mandate that may result in increased small mines. The effective date of the one comment was received by the expenditures by State, local, or tribal final rule will be a full year after its Agency. The commenter expressed a governments in the aggregate of more publication, to provide adequate time concern that the Agency had not than $100 million, or increased for small mines to achieve compliance prepared an environmental assessment expenditures by the private sector of
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.014 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49557 more than $100 million. Moreover, the mining industry to implement a reduced 2. Ceiling Level. The NIOSH draft Criteria Agency has determined that for permissible exposure level for noise, Document recommended a ceiling at a 115 purposes of § 203 of that Act, this final including a reduction in the exchange dBA sound pressure level. The final Criteria rule does not significantly or uniquely rate. For these reasons the final rule Document recommends a 140 dBA sound does not reduce the permissible pressure level ceiling limit for continuous, affect small governments. varying, intermittent, or impulsive noise. exposure level, but it does require mine Background 3. Dual Hearing Protection Level. The draft operators to take a number of other Criteria Document did not make a The Unfunded Mandates Reform Act actions that will substantially reduce recommendation for such a level. However, was enacted in 1995. While much of the miners’ risk of occupational noise- the final Criteria Document recommends the Act is designed to assist the Congress in induced hearing loss. use of dual hearing protection at exposures determining whether its actions will MSHA will continue to examine exceeding a TWA8 of 100 dBA. impose costly new mandates on State, closely the feasibility of a reduction in 4. Quiet Period. The draft Criteria local, and tribal governments, the Act the permissible exposure level for Document recommended a 14-hour quiet also includes requirements to assist miners’ noise exposure. This will period prior to a baseline audiogram, and include, but is not limited to, would not permit the use of hearing Federal agencies to make this same protectors as a substitute. The final Criteria determination with respect to regulatory assessment of the availability and Document recommends a quiet period of 12 actions. suitability of equipment retrofits for hours, and still would not permit the use of noise control, evaluation of the state of hearing protectors in lieu of the quiet period. Analysis existing noise control technology Based on the analysis in the Agency’s appropriate for mining applications, and Rule Format final Regulatory Economic Analysis, the the availability of alternative, and less In the preamble to the proposed rule annualized cost of this final rule is noisy, equipment for various mining MSHA solicited comments on the approximately $8.9 million. tasks. MSHA intends to work closely appropriate format for the final rule, Accordingly, there is no need for further with all segments of the mining providing examples for commenters of analysis under § 202 of the Unfunded community in its continuing assessment alternate approaches. There was no Mandates Reform Act. of feasibility. clear consensus among commenters to MSHA has concluded that small NIOSH Criteria Document the proposal that the traditional format governmental entities are not of MSHA’s regulations should be significantly or uniquely impacted by In March 1996, the National Institute changed. As a result, the final rule the final regulation. The final rule will for Occupational Safety and Health adopts the format of existing MSHA impact approximately 15,299 coal and (NIOSH) released for peer review a draft regulations. Criteria Document for Occupational metal and nonmetal mining operations; Unlike the proposal the final rule Noise Exposure, which was intended to however, increased costs will be does not include a question and answer update an earlier NIOSH Criteria incurred only by those operations section. Instead, after publication of the Document for Noise that had been (approximately 10,476 mines) where final rule, MSHA will develop and issue issued in 1972. MSHA summarized the noise exposures exceed the allowable a compliance guide for the mining recommendations of the draft Criteria limits. MSHA estimates that community to facilitate its Document in the preamble to the approximately 187 sand and gravel or understanding of and compliance with proposed rule (61 FR 66369–66370), and crushed stone operations are run by the requirements of the final rule. considered the draft Criteria Document state, local, or tribal governments and Additionally, MSHA is receptive to recommendations, as well as comments will be impacted by this rule. submission by the mining community of that addressed the draft Criteria When MSHA issued the proposed suggestions for issues that should be Document, in developing this final rule. rule, the Agency affirmatively sought addressed in the compliance guide. input of any state, local, and tribal In June 1998 NIOSH issued the final government which may be affected by Criteria Document for Occupational V. Material Impairment Noise Exposure, which in large part the noise rulemaking. This included Section 101(a)(6) of the Federal Mine state and local governmental entities adopts the recommendations of the 1996 draft Criteria Document, which, as Safety and Health Act of 1977 (Mine who operate sand and gravel mines in Act) provides that, in dealing with toxic the construction and repair of highways mentioned above, were considered as part of this rulemaking. However, the materials or harmful physical agents, and roads. MSHA mailed a copy of the standards set by the Secretary shall: proposed rule to these entities. No state, final Criteria Document does include local or tribal government entity several recommendations which differ ** * most adequately assure on the basis of from recommendations in the 1996 draft the best available evidence that no miner will commented on the proposed rule. When suffer material impairment of health or the final rule is published, MSHA will Criteria Document. The main differences between the draft and the functional capacity even if such miner has mail a copy to all 187 entities. regular exposure to the hazards dealt with by final Criteria Documents are as follows: IV. Miscellaneous such standard for the period of his working 1. Action level. In the draft document, life. Permissible Exposure Level NIOSH proposed what was essentially an ‘‘action level’’ that would trigger MSHA has determined that there is a The final rule affirms MSHA’s initial establishment of a Hearing Loss Prevention significant risk of material impairment determination, set out in the proposal, Program. The ‘‘action level’’ would have been of health and functional capacity to that there is a significant risk for miners an 8-hour TWA of 85 dBA. The final Criteria miners from exposure to workplace of material impairment from noise Document does not adopt the ‘‘action level’’ noise despite the existing noise exposures at or above an 8-hour time- concept, and instead would trigger standards, and the Agency’s rulemaking weighted average of 85 dBA. However, establishment of a Hearing Loss Prevention evidence supports this. MSHA Program at the recommended exposure limit the final rule also comports with anticipates that the final rule will of an 85 dBA TWA8. Under MSHA’s final MSHA’s initial conclusion that it would rule, a miner’s noise exposure at 85 dBA reduce, by approximately two-thirds, not be either technologically or TWA8 requires enrollment of the miner in a the number of miners who will suffer a economically feasible at this time for the Hearing Conservation Program. material impairment due to exposure to
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.015 pfrm08 PsN: 13SER2 49558 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations occupational noise under the existing also suggest that holding exposure individual’s threshold hearing level the regulations. below a time-weighted average of 85 lowest level of discrete frequency tones MSHA’s conclusion that there is a dBA will significantly improve both that he or she can hear. The test significant risk of material impairment psychological and physiological stress procedures for pure tone audiometry are of health for workers exposed over their reactions. relatively simple, widely used, and working lifetimes to sound levels of 85 Safety risks at the workplace may standardized. Although there is little dBA is based on the Agency’s definition arise as a result of noise-induced debate in the scientific community of material impairment, which is hearing loss. Workers suffering from about the usefulness of pure tone referred to in this preamble as the noise-induced hearing loss may not hear audiometry in assessing hearing loss, OSHA/NIOSH–72 definition. Under the safety signals because of reduced there is some disagreement about the OSHA/NIOSH–72 definition, the excess hearing sensitivity to higher range of audiometric frequencies that risk of a hearing impairment from frequencies. In addition, noise-induced should be used in determining hearing occupational noise exposure is 15% or hearing loss results in the loss of the loss. one-hundred fifty-in-a-thousand miners ability to distinguish between many When OSHA initially published its at an 85 dBA TWA8 exposure for a pairs of consonants, which makes noise standard establishing noise working lifetime. The Supreme Court speech incomprehensible. As a result, exposure limits for employees, most has indicated, in discussing significant miners suffering from noise-induced medical professionals used the 1959 risk in the context of litigation under hearing loss may have trouble criteria developed by the American section 6(f) of the OSH Act, that OSHA understanding directions or warnings Academy of Ophthalmology and is free to use conservative assumptions given by their supervisors or co- Otolaryngology (AAOO), a subgroup of in interpreting data so long as they are workers. the American Medical Association supported by reputable scientific (AMA). This definition (AAOO 1959) of Definition of Material Impairment concepts, and that a one-in-a-thousand hearing impairment is a hearing level risk is significant. Industrial Union MSHA has determined that a 25 dB exceeding 25 dB, referenced to Department, AFL–CIO v. American hearing level averaged over 1000, 2000, audiometric zero, averaged over 500, Petroleum Institute, 448 U.S. 607, 655 and 3000 Hz in both ears is the most 1000, and 2000 Hz in either ear. The (1980) (the Benzene Case). If the Mine appropriate gauge of a miner’s risk of American Academy of Otolaryngology Act were to impose the same risk- developing significant noise-induced Committee on Hearing and Equilibrium finding requirement as the OSH Act, hearing loss. MSHA therefore considers and the American Council of MSHA’s determination of a significant such a loss to constitute a material Otolaryngology Committee on the risk of material impairment of health impairment in hearing. MSHA’s Medical Aspects of Noise (AAO–HNS) falls well within the Supreme Court’s definition of material impairment is modified the 1959 criteria in 1979 by direction to OSHA in the Benzene Case. based on one developed in 1972 by adding the hearing level at 3000 Hz to Exposure to hazardous sound levels NIOSH and subsequently adopted by the 500, 1000, and 2000 Hz frequencies. results in noise-induced hearing loss. OSHA in its noise standard for general The AAOO 1959 and AAO–HNS 1979 Noise-induced hearing loss is often industry, referred to below as the definitions cover all types of hearing described in terms of the relationship OSHA/NIOSH–72 definition. (As noted loss and were designed for hearing between the sound level to which a by a commenter, the preamble to the speech under relatively quiet person is exposed and the duration of proposed rule incorrectly stated that the conditions. The NIOSH–72 definition the exposure. Exposures to noise at OSHA/NIOSH–72 definition included includes the higher frequencies, which sound levels equal to or greater than the the phrase ‘‘in either ear.’’ This mistake are crucial to the comprehension of 8-hour average sound level of 85 dBA is corrected here and in the final rule.) speech under everyday conditions. have been shown to lead to hearing loss, In addition, as discussed elsewhere in In its draft 1996 Criteria Document for which can be temporary or permanent. this preamble, MSHA notes that it has occupational noise exposure, NIOSH Noise-induced hearing loss causes not adopted the revised definition of indicated that it was considering a new difficulty in hearing and understanding material impairment set forth in the definition for material impairment of a speech. People suffering from final NIOSH Criteria Document issued 25 dB or greater hearing loss at 1000, significant noise-induced hearing loss in June 1998. Throughout this preamble, 2000, 3000, and 4000 Hz in both ears. require even nearby persons to speak therefore, MSHA will continue to refer This definition was a recommendation loudly and clearly to be understood, and to the definition of material impairment of a Task Force to the American Speech- they are often frustrated by missing vital developed by NIOSH in 1972. Language-Hearing Association (ASHA) information. Also, background noise In nearly all studies of risk, material in 1981. In 1997, NIOSH conducted a affects the person’s ability to distinguish impairment from exposure to noise is reanalysis of the NIOSH-Occupational meaningful sounds from ambient noise. defined as a 25-dB hearing level. Noise and Hearing Survey data and Little benefit can be derived from the Hearing level is the deviation in hearing reevaluated the excess risk of material use of a hearing aid because it amplifies sensitivity from audiometric zero. hearing impairment incorporating the sound indiscriminately, without Positive values indicate poorer hearing 4000 hertz audiometric frequency in the increasing clarity, decreasing distortion, sensitivity than audiometric zero, while definition of material impairment. or screening out unwanted sounds. negative values indicate better hearing. (Excess risk is defined by NIOSH as the Noise also produces secondary, non- Audiometric zero is the lowest sound percentage with material impairment of auditory effects. pressure level that the average, young hearing in an occupational noise Although the secondary effects of adult with normal hearing can hear. exposed population after subtracting the noise-induced hearing loss are more Because of the widespread use of this percentage who would normally incur difficult to identify, document, and definition in the scientific community, such impairment from other causes in a quantify than the hearing loss itself, MSHA has used it in the final rule. population not exposed to occupational recent laboratory and field studies have Most definitions of hearing noise.) In 1998, NIOSH published the found an association between noise and impairment are based solely on pure results of this reanalysis in its final cardiovascular problems and other tone audiometry, in which an Criteria Document. The excess risk of illnesses such as hypertension. Studies audiometer is used to measure an developing occupational noise induced
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AAO–HNS, to develop an impairment from non- that the reanalysis reaffirms support for which includes 3000 Hz, is weighted occupational causes, such as aging or the 85 dBA NIOSH recommended toward the higher frequencies. Because medical problems. exposure limit. OSHA/NIOSH–72 is weighted even Although studies of hearing loss in The final rule does not adopt the more towards the higher frequencies the rulemaking record consistently revised NIOSH definition for hearing due to the elimination of the hearing indicate that exposure to increased impairment. Several commenters noted level at 500 Hz, the population of those sound levels or increased duration that this definition has not been adopted impaired due to noise exposure will be results in increased hearing loss, the by the scientific community, and no greater than under the AAOO 1959 and reported risk estimates of occupational state workers’ compensation agency AAO–HNS 1979 definition. noise-induced hearing loss vary awards compensation for hearing MSHA has found that there is no considerably from one study to another. impairment based upon the current reliable mathematical relationship The variation is due to three factors: NIOSH hearing impairment criterion. among the three ways of assessing (1) The definition of ‘‘material Despite the fact that noise-induced hearing impairment, so that direct impairment’’ used (discussed above); hearing loss usually first becomes comparisons of their results are not (2) The screening of the control (non- detectable at 4000 Hz, MSHA finds that possible. That is, it is not possible to noise-exposed) group; and the scientific evidence does not, as yet, accurately predict the values computed (3) The sound level below which support including 4000 Hz in the using one definition from values material impairment from noise frequencies used for calculating hearing computed using either of the other two exposure is not expected to occur. impairment. Inclusion of test methods. In addition, most of the raw In some of the data used by MSHA, frequencies above 2000 Hz, however, is data that would allow conversion from researchers did not screen their study necessary to show the effect of noise one definition to another are no longer and control populations, while in others below 90 dBA on hearing, so MSHA available. Nonetheless, the results from they used a variety of screening criteria. continues to include the 3000 Hz all three approaches tend to Theoretically, screening does not have a frequency. Several commenters demonstrate the same result. significant impact on the magnitude of suggested that MSHA use the AAO– occupational noise-induced hearing loss HNS 1979 definition of material Measuring Risk experienced by given populations as impairment. There were relatively few MSHA could not determine an long as the same criteria are used to commenters in favor of using the AAO– individual miner’s risk from exposure to screen both the noise-exposed and the HNS 1979 definition. MSHA has particular levels of noise because at any non-noise-exposed populations being excluded the 500 Hz frequency from the given noise exposure, some miners will compared. However, failure to take into definition of hearing impairment suffer harm long before others, and a account any non-occupational noise because it is not as critical for miner’s susceptibility cannot be exposure, loss of hearing sensitivity due understanding speech and is least measured in advance of exposure. to aging, or both, can have a profound affected by noise. MSHA chose the However, as MSHA noted in the effect when considering whether the hearing levels at 1000, 2000, and 3000 proposal, risks can be determined for subjects have exceeded an established Hz on which to base its definition of entire populations. The probability of definition of material impairment. For material impairment because high acquiring a material impairment of example, if both the exposed and frequency hearing is critically important hearing in a given population can be control populations are screened to to the understanding of speech, which determined by extrapolating from data eliminate persons with a history of often takes place in noisy conditions. obtained from a test population exposed military exposure, use of medicines The Agency’s determination is to the same sound levels. Three harmful to the ear, noisy hobbies, and consistent with OSHA’s reasoning for its methods are generally used to express conductive hearing loss from acoustic noise standard, and many comments this population risk: trauma or illness, the excess risk would and studies cited support this approach. (1) The hearing level of the exposed be significantly different from that population; determined using unscreened Risk of Impairment (2) The percentage of an exposed populations. The risk of developing a material population meeting the selected criteria; The studies used by MSHA for the impairment becomes significant over a and final as well as the proposed rule working lifetime when workplace (3) The percentage of an exposed generally assumed exposures below 80 exposure to noise exceeds sound levels population meeting the selected criteria dBA to be nonhazardous. Although a of 85 dBA. Data reviewed by the Agency minus the percentage of a non-noise few researchers—Kryter (1970) and indicate that lowering exposure from 90 exposed population meeting the same Ambasankaran et al. (1981)—have dBA to 85 dBA does not eliminate the criteria, provided both populations are reported hearing loss from exposure to risk, it reduces the risk by similar, apart from their occupational sound levels below 80 dBA, most approximately half. noise exposures. scientists believe that the risk of Typically, noise-induced hearing loss MSHA has determined that the third developing a material impairment of occurs first at 4000 Hz and then method, commonly known as ‘‘excess hearing from exposure to such low progresses into the lower and higher risk,’’ provides the most accurate levels over a working lifetime is frequencies. MSHA notes that because picture of the risk of hearing loss negligible. Accordingly, almost all noise noise does not affect hearing sensitivity resulting from occupational noise risk studies consider the population equally across all frequencies, the exposure. OSHA also used this method exposed only to average levels of noise population defined as impaired will in quantifying the degree of risk in the below 80 dBA as a ‘‘non-noise exposed’’
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TABLE 1.ÐOSHA RISK TABLE
Excess risk (%) Sound level (dBA) ISO EPA NIOSH (1975) (1973) (1972) Range
80 ...... 0 5 3 0±5 85 ...... 10 12 15 10±15 90 ...... 21 22 29 21±29 The excess risk of material impairment under the 1997/1998 NIOSH reanalysis is discussed earlier in this preamble under Definition of Mate- rial Impairment.
Table 1 shows that the excess risk of intermittent noise that peaked at 118 the component of noise-induced material impairment after a working dBA, 3% of the workers experienced permanent threshold shift (the actual lifetime at a noise exposure of 80 dBA hearing impairment according to the shift in hearing level due only to noise is low. On the other hand, a noise AAOO 1959 definition of hearing exposure) to the control data. exposure of 85 dBA indicates a risk impairment. If the AAO–HNS 1979 MSHA did not receive any comments ranging from 10% to 15%. At a noise definition is used, the percentage on the three tables reflecting the exposure of 90 dBA, the risk ranges increases to 9%. Royster et al. predictable fact that, for any given from 21% to 29%. confirmed that the exclusion of 500 Hz population, the excess risk of material Table 2 presents additional and the inclusion of 3000 Hz increased impairment due to noise exposure will information on the risk assessments the number of hearing impaired be greater using the AAO–HNS 1979 calculated by NIOSH (Table XVII, individuals in their study of potential definition than using the AAOO 1959 Criteria Document, 1972), one portion of workers’ compensation costs for hearing definition. Likewise, the excess risk of which was included in Table 1. Table 2 impairment (Royster et al., 1978). Using material impairment due to noise is based on both the AAOO 1959 and an average hearing loss of 25 dB as the exposure will be greater using the the OSHA/NIOSH–72 definitions. It criterion, Royster found that 3.5% of the OSHA/NIOSH–72 definition than using shows that NIOSH’s risk assessment industrial workers developed a hearing the AAO–HNS 1979 definition. All found little difference between using the impairment according to AAOO 1959, three tables show a smaller excess risk OSHA/NIOSH–72 definition and using 6.2% according to AAO–HNS 1979, and than did the data presented in Table 1. the AAOO 1959 criteria. 8.6% according to the OSHA/NIOSH–72 definition. TABLE 3.ÐRISK OF IMPAIRMENT USING TABLE 2.ÐNIOSH RISK TABLE MSHA included the following three AAOO 1959 DEFINITION OF IMPAIR- tables in the preamble to the proposed MENT AND USING MELNICK ET AL., Excess risk (%) rule in order to show data regarding the 1980 DATA Sound level working lifetime risk of material (dBA) OSHA/ impairment based upon the three NIOSH±72 AAOO 1959 Excess risk different definitions commonly used for Exposure Percent with (percent) 80 ...... 3 3 material impairment. Table 3 is based impairment with noise 85 ...... 16 15 on AAO 1959, Table 4 is based on exposure 90 ...... 29 29 AAO–HNS 1979, and, Table 5 is based non-noise ...... 26.8 0.0 on the OSHA/NIOSH–72 definition. 80 dBA ...... 26.8 0.0 Regarding how adjustments to the MSHA constructed these tables based 85 dBA ...... 27.8 1.0 definitions used would affect the excess on data presented in Volume 1 of the 90 dBA ...... 31.4 4.6 risk figures above, MSHA agrees with Ohio State Research Foundation Report several researchers referred to by (Melnick et al., 1980) commissioned by commenters. Suter (1988) estimates that OSHA. The hearing level data used to TABLE 4.ÐRISK OF IMPAIRMENT USING the excess risk would be somewhat construct the tables are taken from AAO±HNS 1979 DEFINITION OF IM- higher if 500 Hz were excluded and summary graphs in that report. The PAIRMENT AND USING MELNICK ET 3000 Hz were included in the definition noise-exposed population was 65 years AL., 1980 DATA of material impairment. Sataloff (1984) old, with 40 years of noise exposure. reports that the effect of including Because the control group was not Excess risk hearing loss at 3000 Hz in the AAOO screened for the cause of hearing loss, Percent with (percent) Exposure impairment with noise 1959 definition of hearing impairment a high level of non-occupational hearing exposure would dramatically increase the loss may undervalue the excess risk prevalence of hearing impairment, as from occupational noise exposure. The non-noise ...... 41.6 0.0 follows. After 20 years of exposure to researchers (Melnick et al., 1980) added 80 dBA ...... 41.8 0.2
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TABLE 4.ÐRISK OF IMPAIRMENT USING impairment. Tables 3, 4, and 5 present populations in determining excess risk AAO±HNS 1979 DEFINITION OF IM- the results of this analysis. Because due to occupational noise exposure. PAIRMENT AND USING MELNICK ET Melnick did not screen his control Comparison of these tables shows that AL., 1980 DATAÐContinued group for the cause of the hearing loss the percentage of workers with hearing (could be non-occupational noise impairment is greater in the table Excess risk exposure), the amount of hearing loss in constructed with an unscreened the supposed non-noise exposed group Exposure Percent with (percent) population as the base. impairment with noise is high. By subtracting the value for the exposure non-noise exposed (control) group from TABLE 6.ÐRISK OF IMPAIRMENT USING the values determined for groups with 85 dBA ...... 44.4 2.8 AGE-INDUCED HEARING LOSS DATA 90 dBA ...... 50.0 8.4 different levels of occupational noise exposure, we determined the excess risk OF PASSCHIER-VERMEER AND ROB- for populations exposed at that level. INSON TABLE 5.ÐRISK OF IMPAIRMENT USING Tables 6 and 7 were also included in OSHA/NIOSH±72 DEFINITION OF the preamble to the proposed rule to Excess risk Percent with (percent) IMPAIRMENT AND USING MELNICK ET show data derived by Melnick in Exposure impairment with noise AL., 1980 DATA Forensic Audiology (1982) for risk of exposure impairment due to noise exposure. Excess risk These tables show the results of 75 dBA ...... 3 0 80 dBA ...... 5 2 Exposure Percent with (percent) applying the AAO-HNS 1979 method to impairment with noise a population that is 60 years old with 85 dBA ...... 9 6 exposure 40 years of exposure to the specified 90 dBA ...... 21 18 non-noise ...... 48.5 0.0 sound levels. In both tables, the data represent the noise-induced permanent 80 dBA ...... 48.7 0.2 TABLE 7.ÐRISK OF IMPAIRMENT USING 85 dBA ...... 51.5 3.0 threshold shift calculated by Johnson, 90 dBA ...... 57.9 9.4 but the screening criteria used in the NON-OCCUPATIONAL HEARING two tables are different. Melnick’s data The excess risk in Table 1 represents in Table 6 are based upon the screened Excess risk Percent with (percent) the risk assessments conducted by ISO, age-induced hearing loss data (that is, Exposure impairment with noise EPA, and NIOSH in three different years they are screened for non-occupational exposure during the early 1970’s. All three hearing loss) of Robinson and Passchier- agencies used the same definition of Vermeer, whereas Table 7 is based on 75 dBA ...... 27 0 impairment (AAOO 1959) in evaluating unscreened, non-occupational hearing 80 dBA ...... 29 2 available studies. Their results are loss data from the 1960–62 U.S. Public 85 dBA ...... 33 6 similar. Health Survey. 90 dBA ...... 40 13 MSHA applied three different Overall, the excess risk information definitions of hearing impairment to the presented in these tables is closer to that Chart 1 incorporates the risk same data (Melnick 1980) to show that in Table 1 than to that in Tables 3, 4, assessment results of Tables 3, 4, 5, 6, the excess risk of impairment varies and 5, but still differs. Tables 6 and 7 and 7. depending on how you define directly illustrate the effect of screening
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Note that the data from both Table 6 and relationship of noise exposure to noise- approach also consistently yielded a Table 7 used the AAO-HNS 1979 induced hearing loss was described. slightly lower excess risk. Thus, Prince definition. The exact numbers of those NIOSH studied 792 industrial workers concluded that there is an excess risk of at risk varies with the study because of whose daily noise exposures were 85 developing a hearing impairment from a the definition of material impairment dBA, 90 dBA, and 95 dBA. The noise- noise exposure of 85 dBA and above. used, the screening criteria used, and exposed workers were compared to a NIOSH (1976) published the results the selection of the control group. control group whose noise exposures from a study on the effects of prolonged Despite these differences, the data were lower than 80 dBA. The exposures exposure to noise on the hearing consistently demonstrate three points: were primarily to steady-state noise, but sensitivity of 1,349 coal miners. From (1) The excess risk increases as noise the exposure levels fluctuated slightly this study, NIOSH concluded that coal exposure increases; in each category. Both groups were miners were losing their hearing (2) There is a significant risk of screened to exclude non-occupational sensitivity at a faster rate than would be material impairment of hearing loss for noise exposure or medical expected from the measured workers exposed over their working complications. The subjects ranged in environmental sound levels. While the lifetimes to sound levels of 85 dBA; and age from 17 to 65 years old. The report majority of noise exposures were less (3) Lowering the exposure from 90 clearly shows that workers whose noise than a TWA8 of 90 dBA (only 12% of dBA to 85 dBA reduces the excess risk exposures were 85 dBA experienced the noise exposures exceeded a TWA8 of of developing a material impairment by more hearing loss than the control 90 dBA), the measured hearing loss of approximately half. group. In addition, as the noise the older coal miners was indicative of noise exposures between a TWA8 of 90 Related Studies of Worker Hearing Loss exposures increased to 90 dBA and 95 dBA, the magnitude of the hearing loss dBA and 95 dBA. NIOSH offered as a The preamble to the proposed rule possible explanation that some miners increased. indicated that MSHA examined a large are exposed to ‘‘very intense noise’’ for body of data on the effects of varying NIOSH reanalyzed these data in a a sufficient number of months to cause industrial sound levels on worker report, ‘‘Reexamination of NIOSH Risk the hearing loss. hearing sensitivity, including studies Estimates’’ (Prince et al., 1997), which Coal miners in the NIOSH (1976) that specifically addressed the mining was published after MSHA’s proposed study experienced a higher incidence of industry. Regardless of the industry in rule. The authors reanalyzed the data hearing impairment than the non- which the data were collected, MSHA from NIOSH’s report (Lempert and occupational-noise-exposed group found that exposures to similar sound Henderson, 1973) that had established a (control group) at each age. Using the levels results in similar degrees of dose-response relationship for noise. In OSHA/NIOSH–72 definition of material material impairment in workers. These the original study, Lempert and impairment, 70% of 60-year-old coal studies support the conclusions reached Henderson had interpreted response to miners were impaired while only a third in the previous section about the risk of be proportional to dose. Prince of the control group were. This would impairment at different sound levels. interpreted the relationship to be a more correspond to an excess risk of 37%. NIOSH (Lempert and Henderson, complex one, and this analysis resulted NIOSH also sponsored a study, 1973) published a report in which the in a better fit with the data. Prince’s conducted by Hopkinson (1981), on the
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.022 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49563 prevalence of middle ear disorders in Baughn used this data to estimate the language difficulty. Burns and Robinson coal miners. In this study, the hearing hearing levels of workers exposed to 80 analyzed 4,000 audiograms and found sensitivity of 350 underground coal dBA, 85 dBA, and 92 dBA and that the hearing levels of workers miners was measured. The results of extrapolated the exposures up to 115 exposed to low sound levels for long this study supported the results of the dBA. Based upon the analysis, 43% of periods of time were equivalent to those 1976 NIOSH study on the hearing 58-year-old workers exposed for 40 of other workers exposed to higher sensitivity of underground coal miners years to noise at 85 dBA would meet the sound levels for shorter durations. From (i.e., coal miners had worse hearing than AAOO 1959 definition for hearing the data, the researchers developed a the controls); the measured median impairment. Thirty-three percent of an mathematical model that predicts hearing levels of the miners were the identical but non-noise exposed hearing loss between 500 Hz and 6000 same in the two studies. population would be expected to meet Hz in certain segments of the exposed OSHA’s 1981 preamble to its Hearing the same definition of impairment. The Conservation Amendment referred to excess risk from exposure to noise at 85 population. studies conducted by Baughn; Burns dBA would therefore be 10%. Using the Using the Burns and Robinson and Robinson; Martin et al.; and Berger same procedure, the excess risk for 80 mathematical model, MSHA et al. Baughn (1973) studied the effects dBA is 0% and for 90 dBA is 19%. constructed Chart 2. The chart shows of average noise exposures of 78 dBA, Burns and Robinson (1970) studied that a noise exposure of 85 dBA over a 86 dBA, and 90 dBA on 6,835 industrial the effects of noise on 759 British 40-year career is clearly hazardous to workers employed in midwestern plants factory workers exposed to average the hearing sensitivity of 60-year-old producing automobile parts. Noise sound levels between 75 dB and 120 dB workers. Chart 2 compares the same exposures for these workers were with durations ranging between one three definitions of impairment to the measured for 14 years and, through month and 50 years. The control group Burns-Robinson Model as used in interviews, exposure histories were consisted of 97 non-noise exposed Tables 3, 4, and 5 with the Melnick estimated as far back as 40 years. workers. Thorough screening removed data. Chart 2 confirms the relationship Neither the control group nor the noise- workers with unknown exposure between the definition of impairment exposed groups were screened for histories. Also excluded were people and the computation of excess risk. anatomical abnormalities of the ear. with ear disease or abnormalities and
dBA. Up to 22% of these workers would on hearing loss among 20 groups of The prevalence of hearing loss in a be at risk of incurring a hearing workers. About 4,600 people were group of 228 Canadian steel workers, impairment with a TWA8 90 dBA included in the analysis. The researcher ranging in age from 18 to 65 years of permissible exposure level compared to concluded that the limit of permissible age, was compared to a control group of 4% with a TWA8 85 dBA permissible noise exposure (defined as the 143 office workers in a study conducted exposure level. Both the noise-exposed maximum level which did not cause by Martin et al. (1975). The researchers and the control groups were screened to measurable noise-induced hearing loss, reported that the risk of hearing exclude workers with non-occupational regardless of years of exposure) was impairment (average of 25 dB at 500, hearing loss. shown to be 80 dBA. Furthermore, the 1000, and 2000 Hz) increases Passchier-Vermeer (1974) reviewed researcher found that noise exposures significantly between 85 dBA and 90 the results of eight field investigations
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.024 pfrm08 PsN: 13SER2 49564 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations above 90 dBA caused considerable such as past military service, farming, sound levels, found in the International hearing loss in a large percentage of hunting, or shop work, since these Standards Organization’s publication employees and recommended that noise exposures were common to all. The ISO 1999 (1990). The noise exposures control measures be instituted at this researchers found that exposure to a for the population ranged between 75 level. The researcher also recommended daily steady-state Leq of 89 dBA for 10 dBA and 100 dBA. Table 8 presents the that audiometric testing be implemented years caused a measurable hearing loss mean and various percentages of the when the noise exposure exceeds 80 at 4000 Hz (Leq is an average sound level hearing level of a 60-year-old male dBA. computed on a 3-dB exchange rate). exposed to noise for 40 years. The noise- According to the researchers, the Berger, Royster, and Thomas (1978) induced permanent threshold shift in measurable loss was in close agreement hearing was combined with the age- studied 42 male and 58 female workers with the predictions of Burns and induced hearing loss values to employed at an industrial facility and a Robinson, Baughn, NIOSH, and determine the total hearing loss. The control group of 222 persons who were Passchier-Vermeer. not exposed to occupational noise. Of age-induced hearing loss values were the 322 individuals included in the Studies of Impact of Lower Sound Levels from an unscreened population study, no one was screened for Table 8 reproduces the most recent representing the general population. exposures to non-occupational noise data on the harm that can occur at lower
TABLE 8.ÐHEARING LEVEL RESULTING FROM SELECTED NOISE EXPOSURES
Hearing level in dB Sound level in dBA 500 Hz 1000 Hz 2000 Hz 3000 Hz
80 ...... 12 6 10 30 85 ...... 12 6 11 33 90 ...... 12 6 16 42
Information about the effects of lower Hearing Loss and Its Prediction.’’ He sound levels ranging from less than 80 noise exposures on hearing are states that due to the global trend in the dBA up to 115 dBA and arranged them especially valuable in attempting to last decade to institute noise control and into eight study groups based on average identify subpopulations particularly hearing conservation programs, new exposures. Assuming that exposure to sensitive to noise. The Committee on retrospective studies are no longer sound levels less than 80 dBA did not Hearing, Bioacoustics, and feasible. Kryter believes that the cause any hearing loss, they assigned Biomechanics of the National Research retrospective studies of Baughn, Burns workers exposed to these levels to the Council (CHABA) (1993) reviewed the and Robinson, and the U.S. Public control group. The researchers reported scientific literature on hazardous Health Service are thus the best that workers with 6 to 15 years of exposure to noise. The report reaffirmed available on the subject of noise- exposure at 85 dBA had significantly many of the earlier findings of the induced permanent threshold shift. worse hearing than the control group. Committee. Based on temporary Kryter developed a formula to derive the For the five groups whose exposure was threshold shift (TTS) studies, the report effective noise exposure level for between 80 dBA and 103.5 dBA, hearing suggests that to prevent noise-induced damage to hearing from the earlier loss tended to increase steadily during hearing loss, exposures must remain studies and determined the noise- their careers but leveled off after 15 below 76 dBA to 78 dBA. Based on field induced permanent threshold shift at years. In contrast, for workers exposed studies, the report suggests that, to different percentiles of sensitivity at to sound levels above 103.5 dBA, guard against any permanent hearing various audiometric test frequencies for hearing loss continued to increase loss at 4000 Hz, the sound level should a population of workers. beyond 15 years. be less than 85 dBA, and possibly less Studies of workers in other countries A statistical method for predicting than 80 dBA. Finally, the report can provide valuable information in hearing loss was developed using the suggests that therapeutic drugs, such as assessing the consequences of data collected in the Rop study. The aminoglycoside antibiotics and workplace noise exposure between 85 researchers predicted that 20.1% of the salicylates (aspirin), can interact dBA and 90 dBA. Differences in 55-year old males in the control group synergistically with noise to yield more socioeconomic factors such as with 15 years of work experience would hearing loss than would be expected by recreational noise exposure, use of incur hearing loss. For a comparable either stressor alone. medicines harmful to the ear, and group of males with exposures at 85 Few current studies of unprotected inflammation of the middle ear (otitis dBA the risk increased to 41.6%; at 92 U.S. workers exposed to a TWA8 media) make it difficult to directly dBA the risk increased to 43.6%; and at between 85 and 90 dBA are available, apply the results of studies of workers 106.5 dBA the risk increased to 72.3%. because the hearing conservation from other countries. However, MSHA The study concluded that exposure to program of OSHA’s noise standard has determined that these studies can be sound levels at or above 85 dBA requires protection at those levels for used as further support for the existence damaged workers’ hearing. most industries (the exception being of a risk in the 80 to 90 dBA range. A study (Schwetz et al., 1980) of employers engaged in oil and gas well Rop, Raber, and Fischer (1979) 25,000 Austrian workers concluded that drilling and servicing operations). The studied the hearing loss of 35,212 male the workers exposed to sound levels difficulty in constructing new and female workers in several Austrian between 85 dBA and 88 dBA retrospective studies of U.S. workers has industries, including mining and experienced greater hearing loss than been noted by Kryter (1984) in his quarrying. The researchers measured the workers exposed to sound levels less chapter entitled ‘‘Noise-Induced hearing levels of workers exposed to than 85 dBA. The study further
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.025 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49565 concluded that at 85 dBA there is no steady-state noise. Therefore, the studies dB hearing level at 1000, 2000, 3000, hearing recovery, ultimately causing are reliable and applicable. MSHA’s risk and 4000 Hz) by age 51 compared with noise-induced hearing loss. Schwetz, assessment is based upon the best only 10% of the general population. therefore, recommended 85 dBA as the scientific data available to the Agency, Even at age 69, only 50% of the non- critical intensity—the permissible as required by the Mine Act. noise-exposed population acquire a exposure limit. Reported Hearing Loss Among Miners hearing impairment. Stekelenburg (1982) calculated age- By age 35 the average miner has a induced hearing loss according to Spoor To confirm the magnitude of the risks mild hearing loss, and 20% of miners and noise-induced hearing loss of noise-induced hearing loss among have a moderate loss. By age 64, fewer according to Passchier-Vermeer. Based miners, MSHA examined the following than 20% of the miners have marginally upon these calculations, Stekelenburg evidence of reported hearing loss among normal hearing, while 80% have suggested 80 dBA as the acceptable miners. moderate to profound hearing loss. In level for noise exposure over a 40 year Audiometric Databases contrast, 80% of the non-noise-exposed work history. At this exposure, Audiometric testing is not currently population will not acquire a hearing Stekelenburg calculates that socially loss as severe as the average miner’s, impaired hearing due to noise exposure required in metal and nonmetal mining and is offered in coal mining only after regardless of how long they live. would be expected in 10% of the Further, Franks concluded that miners, population. a determination of overexposure to noise. However, in connection with its after working 20 to 30 years, could find A study of 537 textile workers by themselves in life-threatening situations Bartsch et al. (1989), which defined ongoing assessments of the effectiveness of the current standards in protecting resulting from their inability to hear socially significant hearing loss as a 40 safety signals and roof talk. dB hearing level at 3000 Hz, found that miner health, MSHA has obtained two the hearing loss resulting from audiometric databases consisting of Metal and Nonmetal Miner Audiometric exposures below 90 dBA mainly occurs 20,022 audiograms conducted on 3,439 Data at frequencies above 8000 Hz (these coal miners and 42,917 audiograms NIOSH used a computer expert frequencies are not normally tested conducted on 9,050 metal and nonmetal system to screen the audiometric data during conventional audiometry). Even miners. The audiometric evaluations on on metal and nonmetal miners. The data though the study concluded that the the coal miners were conducted were screened for year-to-year hearing loss was not of ‘‘social between 1971 and 1994, mostly during consistency of the audiograms, test importance,’’ it did support a reduced the latter years. The audiograms on room background noise, and asymmetry hearing loss risk criterion of 85 dBA be metal and nonmetal miners were in hearing that might indicate a loss of used to protect the workers’ hearing. collected between 1974 and 1995. Each With the exception of the Bartsch audiogram in the data set contained a hearing in only one ear (not study, the results of the foreign studies miner identification number, age, date characteristic of an occupational noise- are generally consistent with those of of test, and audiometric thresholds for induced hearing loss). The expert U.S. workers. The Bartsch conclusion each ear at 500, 1000, 2000, 3000, 4000, system identified 20,429 questionable that the hearing loss is not of ‘‘social and 6000 Hz. Supplemental data such as audiograms, and a subset of 1000 were importance’’ is not supported by the dates of employment, noise exposures, reviewed by an audiologist. many studies, discussed earlier, that use of protective equipment, and The final screened database consisted point to the importance of good hearing training histories were not provided. of 22,488 audiograms representing 5,244 sensitivity at 3000 Hz in order to MSHA asked NIOSH to examine the metal and nonmetal miners. The data understanding speech in everyday, audiometric data and both MSHA and were compared to those in Annex A of noisy environments. Based on NIOSH (Franks, 1996) have performed ‘‘ISO–1999.2 Acoustics—Determination experience, MSHA has found that analyses of the coal miner database. of Occupational Noise Exposure and people will encounter hearing difficulty Estimation of Noise-Induced Hearing before their hearing loss level reaches 40 Coal Miner Audiometric Data Loss.’’ NIOSH’s report, entitled dB at 3000 Hz. Franks used a computer expert system ‘‘Prevalence of Hearing Loss for Noise- One commenter stated that the studies to screen the data for year-to-year Exposed Metal/Nonmetal Miners’’ cited by MSHA in justifying the risk of consistency of the audiograms, test- (NIOSH, 1997), supports the material impairment at exposures below room background noise, and asymmetry conclusions of earlier scientific studies 90 dBA were based on sound levels in hearing that might indicate a that metal and nonmetal miners are determined using older instrumentation. unilateral loss of hearing (which is not losing their hearing sensitivity faster Assuming that MSHA would be using characteristic of occupational noise- than the general population. It indicates more modern instrumentation for induced hearing loss). More than 2,500 that, ‘‘At age 20, approximately 2% have compliance purposes, he suggested that questionable audiograms were reviewed hearing impairment, rising to around the Agency should not use the old data by NIOSH audiologists. 7% at age 30, 25% at age 40, 49% at age and studies. The commenter suggested The final screened database consisted 50, and 70% by age 60. By contrast, 9% that MSHA either raise or retain the of 17,260 audiograms representing 2,871 of the non-occupationally noise-exposed criterion level of a TWA8 of 90 dBA or coal miners. It was compared to the have hearing impairment at age 50.’’ have the studies re-done with newer database in Annex A of ‘‘ISO–1999.2 Franks noted a difference in the increase instrumentation before proceeding with Acoustics—Determination of of hearing loss between men and rulemaking. MSHA maintains that the Occupational Noise Exposure and women. He also noted that, due to the studies remain valid, however, because Estimation of Noise-Induced Hearing NIOSH definition of hearing impairment they were conducted using Loss.’’ NIOSH’s report entitled used in the study (inclusion of 4,000 methodologies based on sound level ‘‘Analysis of Audiograms for a Large Hz.), there was a sufficient degree of meters. The studies, like the final rule, Cohort of Noise-Exposed Miners’’ hearing impairment in the population to were based on the standardized (NIOSH, 1996) indicates that 90% of cause communications problems, definitions of A-weighting network and these coal miners had a hearing because miners would have difficulty in slow response and usually measured impairment (defined as an average 25- understanding some consonants whose
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.026 pfrm08 PsN: 13SER2 49566 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations frequency is between 3,000 and 4,000 identical—the ANSI document having hearing sensitivity than the general Hz. been adapted from the ISO document. population has. MSHA believes that the MSHA received comments on both However, MSHA also received a great NIOSH studies are valid evidence that NIOSH studies. One commenter deal of support for the NIOSH studies, supports the rule. which showed that the use of the Annex asserted that Franks used an incorrect MSHA conducted a separate analysis A control group—highly screened screening process for the audiograms as of the audiometric data for coal miners, audiometric data was appropriate and well as the incorrect control group using the 25 dB hearing level at 1000, the use of Annex B or C in the (ANNEX A of ISO R–1999) and alleged 2000, and 3000 Hz definition of material reanalysis was inappropriate. other deficiencies in the studies. This impairment of hearing. In order to One commenter stated, ‘‘The use of reflect current trends, the percentage of commenter stated that he reanalyzed the Annex B * * * is questionable because data using minimal screening of current coal miners (whose latest these data were not screened to exclude audiogram was taken between 1990 and audiograms, and compared it to the persons with occupational noise ‘‘correct’’ control group (Annex C of 1994) with material impairment of exposure.’’ hearing was compared to NIOSH’s study ANSI S3.44–1996, ‘‘Acoustics— MSHA agrees with Dr. Franks in that on coal miners published in 1976. The Determination of Occupational Noise Annex A was the most appropriate results are shown in Chart 3, along with Exposure’’) estimating that the hearing database for the analysis conducted impairment of the miners was caused by because it is the only database in ISO NIOSH’s 1976 results for both the noise- noise exposure. The commenter 1999 for which year-to-year changes in exposed miners and the non-noise- concluded that both the coal and metal hearing and prevalence of hearing exposed controls. and nonmetal audiometric data suggest impairment could be calculated. MSHA The data points for Chart 3 represent that typical occupational noise also received support from commenters the mean hearing loss of both ears at exposures are on the order of lifetime for the NIOSH studies. Additionally, 1000, 2000, and 3000 Hz relative to time-weighted exposures of about 89 MSHA conducted its own research and audiometric zero. The top line dBA. This commenter thus suggests that determined that miners are still losing represents the 1976 (pre-noise- there is no need for MSHA to continue more of their hearing sensitivity than regulation) group, the middle line with rulemaking, as the current non-noise-exposed workers. Annex A is represents the 1990–1994 (noise- regulations are adequate in protecting a more stringent screening method than regulated) group, and the bottom line miners’ hearing sensitivity. Some Annex C which was used by Dr. Clark. represents the non-noise-exposed group. commenters concurred with the re- Annex A was selected because it Although there has been some progress analysis of the NIOSH studies represents a highly screened sample, under the existing regulations, miners performed by this commenter. MSHA free from ‘‘undue noise exposure’’ and are still losing more of their hearing notes, however, that there was no ear disease. sensitivity than non-noise-exposed significant difference between the Several researchers who studied the workers. This is true even if the analysis control groups, as the International health status of miners provided is limited to miners under 40 years of Standards Organization 1999.2 standard testimony based on numerous research age (that is, those who have worked and the American National Standards reports. Their conclusion was that only under the current coal noise Institute S3.44 standard are virtually miners have incurred a greater loss of regulations).
proposal, MSHA defined a standard more at 2000, 3000, and 4000 Hz in MSHA also analyzed the audiometric threshold shift as a change in hearing either ear. The final rule adopts this data for the number of standard threshold level, relative to the miner’s definition. The importance of a standard threshold shifts and reportable hearing original or supplemental baseline threshold shift is that it reveals that a loss cases. In the preamble to the audiogram, of an average of 10 dB or permanent loss in hearing sensitivity
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.028 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49567 has occurred. When the change from the For the second analysis, the first data, it was not possible to exclude non- baseline averages 25 dB or more at the audiogram of each miner was assumed occupational standard threshold shifts, same frequencies, the hearing loss must to be the baseline. The last audiogram resulting in a greater number of be reported to MSHA. ‘‘Standard of each miner was compared to the standard threshold shifts. The results of threshold shift’’ and ‘‘reportable hearing baseline. Neither audiogram was the 3,102 coal miners audiograms loss’’ are discussed in greater detail corrected for age-induced hearing loss. analyzed are presented in Chart 4. below. Also, because of the lack of supporting
Chart 4 clearly shows that many of the about 25% of the miners have an specific information on miner’s age, coal miners were found to have a average hearing loss of 25 dB or more occupation, and degree of hearing loss. standard threshold shift. The likelihood at 1000, 2000, and 3000 Hz. Corrected Several commenters submitted data, of acquiring a standard threshold shift for age-induced hearing loss, the some in conjunction with an analysis of generally increases with advancing age. percentage of miners with this level of the data, in support of their position The MSHA analysis was conservative in hearing loss decreased to about 15%. that hearing protectors can be effective that only the first and last audiograms The second commenter referred to an as the primary means of protecting were included, resulting in each miner oral presentation by Smith et al. at the miners against occupational noise- having only one standard threshold 1989 Alabama Governor’s Safety and induced hearing loss. shift. In fact, a miner may have Health Conference. (MSHA notes that The NIOSH (Franks) analysis of the experienced multiple standard the Smith presentation itself is not part two databases cited by MSHA and the threshold shifts. of the rulemaking record, although three analyses conducted by Clark and In addition to the above audiometric Smith verified that the comment was Bohl under the auspices of the National data, two NIOSH studies mentioned in correct via letter (December 5, 1994). Mining Association (the first a report the section of this preamble on risk of MSHA believes that the Smith paper is summarizing a reanalysis of the NIOSH impairment support MSHA’s conclusion valid evidence which supports the rule.) Coal Miner Study, the second a report that miners are at risk of noise-induced This commenter stated that Smith et al. containing a reanalysis of the NIOSH hearing loss. In the 1976 NIOSH study, reported on the evaluation of serial Metal and Nonmetal Miner Study, and although the majority of noise exposures audiograms from 100 workers exposed the third a report containing an analysis were less than 90 dBA, approximately to sound levels less than 85 dBA. The of two data bases from the National 70% of the 60-year old coal miners had authors found that 15% of these workers Mining Association) indicate that experienced a material impairment of would have some degree of hearing miners are developing hearing losses to hearing using the OSHA/NIOSH–72 impairment using the AAO–HNS 1979 a degree that constitutes material definition. The Hopkinson (1981) definition. They also reported that at impairment. These analyses also NIOSH study also supports the earlier least 26% of the mining population indicate that the amount of hearing loss NIOSH results. would have some degree of hearing and the percentage of the population impairment using the same definition. that is impaired is highly variable. Data Provided by Commenters In response to MSHA’s request for Further, some individual miners Two commenters to the proposed rule additional specific information received a substantial hearing loss. The provided information on the hearing regarding hearing loss among miners, differences in the conclusions of these sensitivity of miners. The first some commenters stated that they had studies are attributable to the different commenter estimated that 45 to 50% of no workers’ compensation awards for baselines used in the analyses for employed miners have experienced a miners’ hearing loss at their operations. comparison of the exposed populations. standard threshold shift (at least 25% if No commenters supplied information The NIOSH analysis included detailed corrected for age-induced hearing loss). regarding the cost of compensation screening of the data and used a control Further, this commenter estimated that awards. Some commenters supplied group (described in Appendix A of
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ANSI S3.44, ‘‘American National mining experience were excluded from loss. Another 7% of the reported cases Standard Determination of Occupational the analysis. indicated that a workers’ compensation Noise Exposure and Estimation of Metal and nonmetal mine operators claim for noise-induced hearing loss Noise-Induced Hearing Impairment’’) reported 650 cases among surface had been filed. In metal and nonmetal where the hearing losses of the group miners and 154 cases among mines, at least 21% of the reported cases are strictly due to aging. In contrast, the underground miners, a total of 804 resulted from the miner being Clark-Bohl analyses and conclusions cases. According to mine operators, 172 compensated for noise-induced hearing did not include screening of the data of the 804 cases began working at a loss. Nearly another 4% of the reported and used for comparison the control mine after the implementation of noise cases indicated that a workers’ group (described in Appendix C of regulations for metal and nonmetal compensation claim for noise-induced ANSI S3.44) where the control group’s mines in 1975. Again, workers with no hearing loss had been filed. hearing losses included those due to reported mining experience were The low number of cases reported to exposures to less than two weeks of excluded from the analysis. the Agency are believed to be due to occupational noise, exposures to non- Comparing the two types of mining, either: occupational noise, otological there were significantly more reported (1) The lack of a specific definition of abnormalities, as well as those due to hearing loss cases at coal mines than at a noise-induced hearing loss in MSHA’s aging. There is insufficient information metal and nonmetal mines, and a higher part 50 regulations and the resulting in the studies to allow a determination proportion of those cases were reported confusion on the part of mine operators of which method of analysis is more of workers who began working after the about which cases to report; appropriate or superior. As a result of implementation of the current (2) The lack of consistency among the differences in approach between standards. This is despite the fact that, state requirements for awarding these analyses, the analyses arrive at at present, there are more metal and compensation for a noise-induced different conclusions regarding the nonmetal miners than coal miners hearing loss and among physicians in magnitude of the hearing losses employed in the United States. A diagnosing what constitutes a hearing exhibited by miners, although all of possible explanation of the difference loss caused by noise; or these analyses do indicate that some between reported cases of noise-induced (3) The lack of required periodic miners are developing a material hearing loss among coal and metal and audiometric testing in the mining impairment of hearing in varying nonmetal miners may be that there is industry. degrees. Additionally, these analyses do more frequent use of engineering noise In sum, the hearing loss currently not support the conclusion that a controls in metal and nonmetal mining. reported to MSHA under part 50 cannot hearing conservation program that relies Because the occupational noise be used to accurately characterize the primarily or exclusively on the use of standards for coal mines allow incidence, prevalence, or severity of hearing protectors effectively protects inspectors to take into account the use hearing loss in the mining industry. all miners from noise-induced of hearing protectors in determining However, the data clearly show that occupational hearing loss. compliance, most coal mines use miners are experiencing noise-induced Other studies and data were hearing protectors for compliance hearing loss. unless the engineering controls are submitted by other commenters in Workers’ Compensation Data support of their position that a hearing inexpensive or come with the conservation program that relies equipment. Metal/nonmetal mines are The preamble to the proposal primarily or soley on the use of hearing not allowed to use hearing protectors for reviewed a study by Valoski (1994) of protectors can adequately protect compliance unless they have the number of miners receiving workers’ miners’ hearing. These studies and data implemented all feasible engineering compensation and the associated are discussed later in the preamble. and administrative controls. Other indemnity costs of those awards. possible reasons include differences in Despite contacting each state workers’ Reported Hearing Loss Data the severity of the noise exposures, compensation agency and using two Under MSHA’s existing regulations at variations among states’ criteria for national databases, Valoski was unable 30 CFR part 50, mine operators are workers’ compensation awards, to obtain data for all states, including required to report cases of noise- continual use of hearing protectors, and those with significant mining activities. induced hearing loss to MSHA when it the effectiveness of selected hearing Valoski reported that between 1981 and is diagnosed by a physician or when the protectors. 1985 at least 2,102 coal miners and 312 affected miner receives an award of MSHA reviewed the narrative metal and nonmetal miners were compensation. Between 1985 and 1997, associated with each case of noise- awarded compensation for occupational mine operators reported a total of 2,590 induced hearing loss to determine the hearing loss. The identified total cases of noise-induced hearing loss. In average degree of hearing loss. Although indemnity costs of those awards a substantial number of these cases, the many narratives included reasons for exceeded $12.5 million, excluding occupational noise exposures occurred reporting the noise-induced hearing rehabilitation or medical costs. after the implementation of the current loss, others only listed the illness as In a letter to MSHA, NIOSH cited the noise regulations. ‘‘hearing loss.’’ Approximately half the Chan et al. (1995) investigation for Coal mine operators reported 674 cases had no information on the severity NIOSH of the incidence of noise- cases among surface miners, 1,098 cases of the hearing loss. Some contained induced hearing loss among miners among underground miners, and 14 designations such as standard threshold using information from the Bureau of cases among miners whose positions shift, OSHA reportable case, or percent Labor Statistics’ (BLS) Supplementary were not identified. According to coal disability. The narratives did not Data System. In the 15 states that mine operators, 710 of the 1,786 cases contain enough information with which participated in the BLS program began working at a mine after the to determine an average severity for between 1984 and 1988, a total of 217 implementation of the noise regulations cases of noise-induced hearing loss. miners (93 coal miners and 124 metal for coal mines—1972 for underground At least 40% of the reported cases in and nonmetal miners) were awarded coal mining and 1973 for surface coal coal mining resulted in the miner being workers’ compensation for noise- mining. Workers with no reported compensated for noise-induced hearing induced hearing loss. During those
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TABLE 9.ÐMNM MINES NOISE DOSE TRENDS CYS 1974±97 *
Number Percent Number of samples ex- exceeding Fiscal year samples ceeding 90 90 dBA dBA TWA8 TWA8
1974 ...... 363 139 38.3 1975 ...... 3,826 1,661 43.4 1976 ...... 9,164 3,725 40.6 1977 ...... 13,485 5,047 37.4 1978 ...... 17,326 6,415 37.0 1979 ...... 21,176 7,638 36.1 1980 ...... 15,185 5,203 34.3 1981 ...... 11,278 3,651 32.4 1982 ...... 3,208 876 27.3 1983 ...... 7,628 2,188 28.7 1984 ...... 8,525 2,311 27.1 1985 ...... 8,040 2,094 26.0 1986 ...... 9,213 2,402 26.1 1987 ...... 10,145 2,818 27.8 1988 ...... 10,514 2,417 23.0 1989 ...... 10,279 2,208 21.5 1990 ...... 13,067 2,721 20.8 1991 ...... 14,936 2,947 19.7 1992 ...... 14,622 2,809 19.2 1993 ...... 14,566 2,529 17.4 1994 ...... 15,979 2,627 16.4 1995 ...... 13,865 1,989 14.4 1996 ...... 16,686 2,228 13.4 1997 ...... 10.731 1,989 14.3 * From USBM's MIDAS data base. Italicized data not included in chart 9a.
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Table 10 shows samples with readings full-shift samples collected by MSHA not begin building the database until exceeding the permissible exposure from 1986 through 1997 using personal 1986. level (TWA8 of 90 dBA) and noise dose noise dosimeters. MSHA began routine trends in coal mines based on 75,691 sampling in coal mines in 1978 but did
TABLE 10.ÐCOAL MINE NOISE DOSE TRENDS, FYS 86±97
Number Percent Number of samples ex- exceeding Fiscal year samples ceeding 90 90 dBA dBA TWA8 TWA8
1986 ...... 2,037 593 29.1 1987 ...... 12,774 3,314 25.9 1988 ...... 11,888 2,702 22.7 1989 ...... 11,035 2,313 21.0 1990 ...... 10,861 2,388 22.0 1991 ...... 6,898 1,635 23.7 1992 ...... 6,636 1,660 25.0 1993 ...... 7,223 1,908 26.4 1994 ...... 6,339 1,656 26.1 1995 ...... 5,407 1,219 22.5 1996 ...... 6,064 1,256 20.7 1997 ...... 6,542 1,388 21.2
The inspection data for the coal and consistent downward trend in the MSHA attributes this difference to the metal and nonmetal mining sectors have percentage of samples exceeding the established use of engineering and been graphed in Charts 9a and 10a, current permissible exposure level. administrative controls in metal and which indicate that the metal and However, there was no such clear trend nonmetal mines. nonmetal sector shows a gradual but for coal mines during the same period.
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MSHA notes that the interaction of Dual Survey Data settings were the same as those used two factors in the data represented in MSHA conducted a special survey to during normal compliance inspections these charts may offset each other. First, compare noise exposures at different (the 90 dBA criterion level, 5-dB the database is made up of samples threshold levels, because the final rule exchange rate, and A-weighting and collected in noisier mines and requires integration of sound levels slow response characteristics). The occupations. Second, the database between 80 dBA and at least 130 dBA noise doses were mathematically includes both initial overexposure and for the action level and between 90 dBA converted to their corresponding TWA8. the results of any resampling to and at least 140 dBA for the permissible Tables 11 and 12 display the dual- determine compliance after the mine exposure level. The survey, referred to threshold data in metal and nonmetal operator has utilized engineering or as the dual-threshold survey, involved mines and in coal mines. Table 11 administrative controls (in the case of the collection by MSHA inspectors of shows the dual-threshold data collected an overexposure found during an initial data in coal, metal, and nonmetal mines. for metal and nonmetal mines from survey). Each sample was collected using a March 1991 through December 1994 personal noise dosimeter capable of using personal noise dosimeters. This collecting data at both thresholds data consisted of more than 42,000 full- simultaneously. All other dosimeter shift samples.
TABLE 11.ÐM/NM DUAL-THRESHOLD NOISE SAMPLES EQUAL TO OR EXCEEDING SPECIFIED TWA8 SOUND LEVELSÐ MARCH 1991 THROUGH DECEMBER 1994
90 dBA threshold 80 dBA threshold TWA8 sound level (in dBA) Number of Percent of Number of Percent of samples samples samples samples
90 (PEL) ...... 7,360 17.4 ......
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TABLE 11.ÐM/NM DUAL-THRESHOLD NOISE SAMPLES EQUAL TO OR EXCEEDING SPECIFIED TWA8 SOUND LEVELSÐ MARCH 1991 THROUGH DECEMBER 1994ÐContinued
90 dBA threshold 80 dBA threshold TWA8 sound level (in dBA) Number of Percent of Number of Percent of samples samples samples samples
85 (action level) ...... 28,250 66.9
As indicated in Table 11, 17.4% of all the final rule feasible engineering and action level (a TWA8 of 85 dBA using samples collected by MSHA in metal administrative controls are required to an 80–dBA threshold). and nonmetal mines during the be implemented in such instances in all MSHA’s dual-threshold sampling data specified period equaled or exceeded mines to reduce the noise exposure to for coal mines is presented in Table 12. the permissible exposure level (a TWA 8 the permissible exposure level. These data consist of over 4,200 full- of 90 dBA using a 90-dBA threshold)— Furthermore, 67% of the samples in shift samples collected from March 1991 slightly less than the results of the metal and nonmetal mines exceeded the through December 1995 using personal inspectors’ samplings in Table 9. Under noise dosimeters.
TABLE 12.ÐCOAL DUAL-THRESHOLD NOISE SAMPLES EQUAL TO OR EXCEEDING SPECIFIED TWA8 SOUND LEVELS [March 1991 Through December 1995]
90 dBA threshold 80 dBA threshold TWA8 sound level (in dBA) Number of Percent of Number of Percent of samples samples samples samples
90 (PEL) ...... 1,075 25.3 ...... 85 (action level) ...... 3,268 76.9
As indicated in Table 12, 25.3% of all almost 77% of the survey samples from Tables 13 and 14 present some of the samples collected by MSHA in coal the coal industry showed noise MSHA dual-threshold sampling data by mines during the specified period exposures equaling or exceeding a occupation for the most frequently equaled or exceeded the permissible TWA8 of 85 dBA using an 80–dBA sampled occupations in metal and exposure level (a TWA8 of 90 dBA using threshold (the action level). nonmetal and coal mines, respectively. a 90-dBA threshold). Furthermore,
TABLE 13.ÐPERCENTAGE OF MSHA M/NM INSPECTOR NOISE SAMPLES EXCEEDING SPECIFIED TWA8 SOUND LEVELS, BY SELECTED OCCUPATION ²
90 dBA 80 dBA threshold threshold Occupation Number of Percent of samples Percent of samples ≥85 samples >90 dBA (action dBA (PEL) level)
Front-End-Loader Operator ...... 12,812 12.9 67.7 Truck Driver ...... 6,216 13.1 73.7 Crusher Operator ...... 5,357 19.9 65.1 Bulldozer Operator ...... 1,440 50.7 86.2 Bagger ...... 1,308 10.2 65.0 Sizing/Washing Plant Operator ...... 1,246 13.2 59.7 Dredge/Barge Attendant ...... 1,124 27.2 78.7 Clean-up Person ...... 927 19.3 71.3 Dry Screen Operator ...... 871 11.7 57.6 Utility Worker ...... 846 12.4 60.6 Mechanic ...... 761 3.8 43.9 Supervisors/Administrators ...... 730 9.0 32.2 Laborer ...... 642 17.1 65.7 Dragline Operator ...... 583 34.0 82.5 Backhoe Operator ...... 546 8.4 52.6 Dryer/Kiln Operator ...... 517 10.5 55.5 Rotary Drill Operator (electric/hydraulic) ...... 543 39.6 83.1 Rotary Drill Operator (pneumatic) ...... 489 64.4 89.0 ² These occupations comprise about 87 percent of the 42,206 MSHA dual-threshold samples collected at metal/nonmetal mines from March 1991 through December 1994 using a personal noise dosimeter over a miner's full shift
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TABLE 14.ÐPERCENTAGE OF MSHA COAL INSPECTOR NOISE SAMPLES EXCEEDING SPECIFIED TWA8 SOUND LEVELS, BY SELECTED OCCUPATION ²
90 dBA 80 dBA threshold threshold Occupation Number of Percent of samples Percent of samples ≥85 samples >90 dBA (action dBA (PEL) level)
Continuous Miner Helper ...... 68 33.8 88.2 Continuous Miner Operator ...... 262 49.6 96.2 Roof Bolter Operator (Single) ...... 234 21.8 85.5 Roof Bolter Operator (Twin) ...... 92 31.5 98.9 Shuttle Car Operator ...... 260 13.5 78.5 Scoop Car Operator ...... 94 18.1 74.5 Cutting Machine Operator ...... 22 36.4 63.6 Headgate Operator ...... 20 40.0 100.0 Longwall Operator ...... 34 70.6 100.0 Jack Setter (Longwall) ...... 25 32.0 68.0 Cleaning Plant Operator ...... 107 36.4 77.6 Bulldozer Operator ...... 225 48.9 94.2 Front-End-Loader Operator ...... 244 16.0 76.6 Highwall Drill Operator ...... 83 21.7 77.1 Refuse/Backfill Truck Driver ...... 162 13.6 78.4 Coal Truck Driver ...... 28 17.9 64.3 ² These occupations comprise about 71 percent of the 4,247 MSHA dual-threshold samples collected at coal mine from March 1991 to Decem- ber 1995 using a personal noise dosimeter over a miner's full shift
As shown in these tables, the rotary drill operators would have noise miners (13,294 miners) will incur a percentage of miners exceeding the exposures exceeding the action level. material impairment of hearing under specified noise exposures varied greatly present exposure conditions. Conclusion: Miners at Significant Risk according to occupation. For example, Table 15 presents MSHA’s profile of of Material Impairment Table 13 shows that only 8.4% of the the projected number of miners backhoe operators in metal and MSHA has concluded that, despite currently subjected to a significant risk nonmetal mines had noise exposures many years under existing standards, of developing a material impairment exceeding the permissible exposure noise exposures in all sectors of mining due to occupational noise-induced level, while 64.4% of the pneumatic continue to pose a significant risk of hearing loss under existing exposure rotary drill operators had similar material impairment to miners over a conditions. The totals represent 13% of exposures. 52.6% of the backhoe working lifetime. Specifically, MSHA metal and nonmetal miners and 13.4% operators and 89.0% of the pneumatic estimates in the REA that 14% of coal of miners as a whole.
TABLE 15.ÐPROJECTED NUMBER OF MINERS LIKELY TO INCUR NOISE-INDUCED HEARING IMPAIRMENT UNDER MSHA'S EXISTING STANDARDS AND EXPOSURE CONDITIONS
80±84.9 85±89.9 90±94.9 95±99.9 100±104.99 ≥ <80 dBA dBA dBA dBA dBA dBA 105 dBA Total*
COAL ...... 0 464 10,954 1,315 456 104 1 13,294 M/NM ...... 0 1,091 15,472 6,030 1,002 48 0 23,643
Total* ...... 0 1,555 26,426 7,345 1,458 152 1 36,937 * Includes contractor employees. Does not include office workers. Discrepancies are due to rounding.
MSHA promulgated noise standards what constitutes an effective prevention demonstrates that noise-induced for underground coal mines in 1971, for program, the Agency’s requirements are hearing loss constitutes a serious hazard surface coal mines in 1972, and for dated. NIOSH, for example, currently to miners. MSHA’s experience in metal and nonmetal mines in 1974. At recommends a comprehensive program enforcing its existing standards bears that time, the Agency regarded which includes the institution of a this out, necessitating the replacement compliance with the requirements as hearing conservation program to prevent of those standards with new ones that adequate to prevent the occurrence of noise-induced hearing loss, but MSHA’s would provide additional protection to noise-induced hearing loss in the current standards do not include such miners consistent with section mining industry. Since that time, protection. 101(a)(6)(A) of the Federal Mine Safety however, there have been numerous Some commenters suggested that the and Health Act of 1977 (Mine Act), awards of compensation for hearing loss existing standards adequately protect which states that MSHA’s promulgation among miners. Moreover, in light of miners against noise-induced hearing MSHA’s experience and that of other loss and that MSHA over-estimates the of health standards must: domestic and foreign regulatory hazard. However, the vast majority of ** * [A]dequately assure on the basis of the agencies, as well as expert opinion on the current scientific evidence best available evidence that no miner will
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Committee wishes to emphasize that it rejects equipment, such as respirators, if Based on the numerous studies and the view that cost benefit ratios alone may be the basis for depriving miners of the health technology does not exist to lower MSHA’s calculations and analysis protection which the law was intended to exposure to safe levels. See United presented above, the Agency has insure. Steelworkers of America, AFL–CIO–CLC concluded that the new requirements in S. Rep. No. 95–181, 95th Cong., 1st Sess. 21 v. Marshall, 647 F.2d 1189, 1266 (D.C. this rule are necessary to address the (1977). Cir. 1981). continued excess risk of material The Agency has vast experience in impairment due to occupational noise- In American Textile Manufacturers’ Institute v. Donovan, 452 U.S. 490, 508– working with the mining community in induced hearing loss. continually refining and improving Compliance will reduce noise- 509 (1981), the Supreme Court defined the word ‘‘feasible’’ as ‘‘capable of being existing noise control technology. At the induced hearing loss among miners, as request of MSHA’s Coal Mine Safety well as the associated workers’ done, executed, or effected.’’ The Court further stated, however, that a standard and Health or Metal and Nonmetal Mine compensation costs. The new rule Safety and Health, MSHA’s Technical provides the added benefit of making would not be considered economically feasible if an entire industry’s Support staff actively assists mine MSHA’s noise rule consistent with operators in developing effective noise OSHA’s noise standard for general competitive structure were threatened. In promulgating standards, hard and controls. Based on this experience, the industry, as recommended by many Agency has concluded that there are few commenters. precise predictions from agencies regarding feasibility are not required. circumstances in mining where such VI. Feasibility The ‘‘arbitrary and capricious test’’ is controls do not exist. Section 101(a)(6)(A) of the Mine Act usually applied to judicial review of MSHA acknowledges that some requires the Secretary to set standards rules issued in accordance with the mining equipment historically has which most adequately assure, on the Administrative Procedures Act. The presented technological feasibility basis of the best available evidence, that legislative history of the Mine Act challenges for the mining industry. no miner will suffer material indicates that Congress explicitly However, MSHA has evaluated, under impairment of health or functional intended the ‘‘arbitrary and capricious actual mining conditions, newly capacity over his or her working test’’ be applied to judicial review of developed noise controls for surface lifetime. Standards promulgated under mandatory MSHA standards. ‘‘This test self-propelled equipment, underground this section must be based upon would require the reviewing court to diesel-powered haulage equipment, research, demonstrations, experiments, scrutinize the Secretary’s action to jumbo drills, track drills, hand-held and such other information as may be determine whether it was rational in percussive drills, draglines/shovels, appropriate. MSHA, in setting health light of the evidence before him and portable crushers, channel burners, and standards, is required to achieve the reasonably related to the law’s purposes. mills, and has found them to be highest degree of health and safety ** *’’ S. Rep. No. 95–181, 95th Cong., effective in producing a significant protection for the miner, and must 1st Sess. 21 (1977). Thus, reduction in a miner’s noise exposure. consider the latest available scientific MSHA need only base its predictions Some of these feasible engineering data in the field, the feasibility of the on reasonable inferences drawn from controls are already designed into new standards, and experience gained under the existing facts. Accordingly, to equipment. In many cases, effective and this and other health and safety laws. establish the economic and feasible controls are available through In relation to promulgating health technological feasibility of a new rule, retrofitting or the proper use of noise standards, the legislative history of the an agency is required to produce a barriers. Mine Act states that: reasonable assessment of the likely Several commenters in the metal and nonmetal sector of the mining industry This section further provides that ‘‘other range of costs that a new standard will considerations’’ in the setting of health have on an industry, and the agency expressed concern regarding the standards are ‘‘the latest available scientific must show that a reasonable probability technological and economic feasibility data in the field, the feasibility of the exists that the typical firm in an of controls for their particular standards, and experience gained under this industry will be able to develop and operations. In Volume IV of MSHA’s and other health and safety laws.’’ While install controls that will meet the Program Policy Manual, which covers feasibility of the standard may be taken into standard. an interpretation, application, and consideration with respect to engineering guidelines on enforcement of MSHA’s controls, this factor should have a Technological Feasibility existing noise standards in metal and substantially less significant role. Thus, the Secretary may appropriately consider the MSHA has determined that a nonmetal mines, the Agency includes a state of the engineering art in industry at the permissible exposure level of a TWA8 of list of feasible noise engineering time the standard is promulgated. However, 90 dBA is technologically feasible for controls for the major classifications of as the circuit courts of appeals have the mining industry. An agency must equipment used in the metal and recognized, occupational safety and health show that modern technology has at nonmetal mining industry. The Agency statutes should be viewed as ‘‘technology- least conceived some industrial intends to continue applying its existing forcing’’ legislation, and a proposed health strategies or devices that are likely to be guidelines on enforcement of the standard should not be rejected as infeasible capable of meeting the standard, and permissible exposure level in the final ‘‘when the necessary technology looms in which industry is generally capable of rule because the permissible exposure today’s horizon’’. AFL–CIO v. Brennan, 530 F.2d 109) (3d Cir. 1975); Society of Plastics adopting. American Iron and Steel level is unchanged from the existing Industry v. OSHA, 509 F.2d 1301 (2d Cir. Institute v. OSHA, (AISI–II) 939 F.2d standards. MSHA, therefore, encourages 1975) cert. den. 427 U.S. 992 (1975). 975, 980 (D.C. Cir. 1991); American Iron mine operators to use this list so they Similarly, information on the economic and Steel Institute v. OSHA, (AISI–I) will be knowledgeable of available noise impact of a health standard which is 577 F.2d 825 (3d Cir. 1978) at 832–835; control technology.
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Acoustically Treated Cabs belting and other materials found at the rooms and booths are typically For mining equipment such as haul mine site. successful in reducing exposures of employees working in them to below 85 trucks, front-end-loaders, bulldozers, Exhaust Mufflers track drills, and underground jumbo dBA. Diesel-powered machinery can be In addition, remote controlled video drills, acoustically treated cabs are equipped with an effective exhaust cameras can be used to provide visual among the most effective noise controls. muffler in addition to an environmental observation of screens, crushing Such cabs are widely available, both cab or barrier shield. The muffler’s equipment, or processing equipment, from the original equipment exhaust pipe can be relocated away minimizing the need for a miner to be manufacturer and the manufacturers of from the equipment operator and the near these loud noise sources. retrofit cabs, for machines manufactured emissions can be redirected away from within the past 25 years. Today, most the operator. For underground mining Substitution of Equipment manufacturers include an acoustically equipment, exhaust mufflers are In the few cases where sound levels treated cab as part of the standard ordinarily not needed where water are particularly severe and neither equipment on the newest pieces of scrubbers are used. A water scrubber retrofit nor factory controls are mobile mining equipment. The noise offers some noise reduction, but the available, the equipment may need to be reduction of factory-installed, addition of an exhaust muffler may replaced with a type that produces less acoustically treated cabs is generally create excessive back pressure or noise. For example, hand-held channel more effective and often less costly than interfere with the proper functioning of burners were used for many years in the that of retrofit cabs. According to some the scrubber. Exhaust mufflers can, mining industry to cut granite in manufacturers, sound levels at the however, be installed on underground dimension stone quarries. Sound levels machine operator’s position inside equipment where catalytic converters typically exceeded 120 dBA at the factory cabs are often below 90 dBA are used. operator’s ear. Several years ago, and, in some cases, below 85 dBA. Exhaust mufflers can also be installed however, alternative and quieter Additionally, environmentally on pneumatically powered equipment. methods of cutting granite, such as high controlled operator’s cabs have the For example, exhaust mufflers are pressure water jet technology, added advantages of reducing dust offered by the manufacturers of almost automated channel burners, and exposure, heat stress, and ergonomic- every jackleg drill, chipping hammer, diamond wire saws, were developed in related hazards. and jack hammer. In the few cases the dimension stone industry. Occasionally, underground mining where such exhaust mufflers are not Dimension stone operators were notified conditions are such that full-sized available from the original equipment by MSHA of the availability of these surface haulage equipment can be used. manufacturer, they can be easily alternatives and given time to phase out Where this is possible, such equipment constructed by the mine operator. the use of diesel-fueled, hand-held can be equipped with a cab as described MSHA has a videotape available to the burners and replace them with one of above. mining community showing the the quieter and more protective These engineering noise controls are construction of such an exhaust muffler alternatives. not new technology. The former United for a jackleg drill. This muffler can be New Equipment Design States Bureau of Mines (USBM) constructed at minimal cost from a published two manuals entitled section of rubber motorcycle tire. Hand-held channel burners can be ‘‘Bulldozer Noise Controls’’ (1980) and replaced with automated channel ‘‘Front-End Loader Noise Controls’’ Acoustical Materials burners supplied with liquid oxygen. (1981) which describe in detail Various types of acoustical materials The automated design does not require installations of retrofit cabs and can be strategically used for blocking, the operator to be near the channel acoustical materials. absorbing, and/or damping sound and burner, thereby using distance to attenuate the noise. Barrier Shields vibration. Damping vibration reduces the generated sound field. Generally The MSHA document entitled, For some equipment, generally over such materials are installed on the ‘‘Summary of Noise Controls for Mining 25 years old, an environmental cab may inside walls of equipment cabs or Machinery,’’ (Marraccini et al., 1986) not be available from the original operator compartments, and in control provides case histories of effective noise equipment manufacturer or from rooms and booths. Barrier and controls installed on specific makes and manufacturers of retrofit cabs. In such absorptive materials can be used to models of mining equipment. The case cases, a partial barrier with selective reduce noise emanating from the engine histories describe the controls used, placement of acoustical material can and transmission compartments, and their cost, and the amount of noise usually be installed at nominal cost to acoustical material can be applied to the reduction achieved. In particular, these block the noise reaching the equipment firewall between the employee and include engineering noise control operator. These techniques are transmission compartment. Noise methods for coal cutting equipment, demonstrated in ‘‘Bulldozer Noise reduction varies depending upon the longwall equipment, conveyors, and Controls’’ (1980). specific application. Care must be taken diesel equipment. Underground coal Barrier shields and partial enclosures to use acoustical materials that will not mining equipment may require some can also be used on track drills where create a fire hazard or emit toxic fumes unique noise controls. However, for coal full cabs are infeasible. Such shields if exposed to heat. extracting machines such as continuous and enclosures can be either miners and longwall shearers, the use of freestanding or attached to the drill. Control Rooms and Booths remote control is the single most Typically, however, they are not as Acoustically treated control rooms effective noise control. The installation effective as cabs and usually do not and booths are frequently used in mills, of noise damping materials and reduce the miner’s noise exposure to the processing plants, or at portable enclosure of motors and gear cases can TWA8 of 90 dBA permissible exposure operations to protect miners from noise be used to aid in controlling noise of level. This barrier can be constructed at created by crushing, screening, or coal transporting equipment such as minimal cost from used conveyor processing equipment. Such control conveyors and belt systems. Diesel
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.037 pfrm08 PsN: 13SER2 49576 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations equipment used underground can be controls that are used under the current assess whether the costs of the control equipped with controls similar to those rule. MSHA expects that there will be are disproportionate to the ‘‘expected used on surface equipment. Mufflers, no significant change because the benefits,’’ and whether the costs are so sound controlled cabs, and barriers will requirements for meeting the great that it is irrational to require its provide much of the needed noise permissible exposure level are the same. use to achieve those results. The control for this type of equipment. For the coal industry, however, MSHA Commission has expressly stated that MSHA has found that the controls expects the cost to differ significantly. cost-benefit analysis is unnecessary in utilized in these specific cases can be Under the current coal standards, order to determine whether a noise extended to other pieces of mining personal hearing protectors have control is required. equipment. The Agency is currently typically been substituted for Consistent with Commission case law, updating this publication, and plans to engineering and administrative controls; MSHA considers three factors in reissue it at a later date in order to assist therefore, the industry has not determining whether engineering mine operators in complying with the exhausted the use of feasible controls controls are feasible at a particular requirements of the final rule. capable of significantly reducing sound mine: (1) The nature and extent of the levels. Accordingly, the coal sector is Economic Feasibility overexposure; (2) the demonstrated projected to experience relatively higher effectiveness of available technology; MSHA has determined that a costs for engineering controls under the and (3) whether the committed permissible exposure level of a TWA8 of final rule than the metal and nonmetal resources are wholly out of proportion 90 dBA is economically feasible for the sector. to the expected results. A violation mining industry. Economic feasibility MSHA believes the requirements for under the final standard would entail does not guarantee the continued engineering and administrative controls MSHA determining that a miner has existence of individual employers. It clearly meet the feasibility requirements been overexposed, that controls are would not be inconsistent with the Act of the Mine Act, its legislative history, feasible, and that the mine operator to have a company which turned a and related case law. The most failed to install or maintain such profit by lagging behind the rest of an convincing evidence that the final rule controls. According to the Commission, industry in providing for the health and will be economically feasible for the an engineering control may be feasible safety of its workers to consequently mining industry as a whole is the fact even though it fails to reduce exposure find itself financially unable to comply that the total cost of the final rule borne to permissible levels contained in the with a new standard; see, United by the mining industry, $8.7 million standard, as long as there is a significant Steelworkers, 647 F.2d at 1265. annually, is only 0.01 percent of annual reduction in a miner’s exposure. Todilto Although it was not Congress’ intent to industry revenues of approximately Exploration and Development protect workers by putting their $59.7 billion. Nevertheless, MSHA Corporation v. Secretary of Labor, 5 employers out of business, the increase recognizes that, in a few cases, FMSHRC 1894, 1897 (1983). MSHA in production costs or the decrease in individual mine operators, particularly intends to continue its longstanding profits would not be enough to strike small operators, may have difficulty in policy of determining that a control is down a standard. Industrial Union achieving full compliance with the final feasible where a control or a Dep’t., 499 F.2d at 477. Conversely, a rule immediately because of a lack of combination of controls could achieve a standard would not be considered financial resources to purchase and 3-dBA noise reduction, which economically feasible if an entire install engineering controls. However, industry’s competitive structure were ultimate compliance with the final rule represents at least a 50% reduction in threatened. Id. at 478; see also, AISI–II, is expected to be achieved. sound energy. Where any single control 939 F.2d at 980; United Steelworkers, Whether controls are feasible for does not provide at least a 3-dBA noise 647 F.2d at 1264–65; AISI–I, 577 F.2d at individual mine operators is based in reduction, mine operators must consider 835–36. This would be of particular part upon legal guidance from the the reduction achieved by a concern in the case of foreign Federal Mine Safety and Health Review combination of all available controls. competition, if American companies Commission (Commission). According Some commenters were uncertain as were unable to compete with imports or to the Commission, a control is feasible to whether MSHA’s policy referred to a substitute products. The cost to when it: (1) Reduces exposure; (2) is 3-dBA reduction in sound level or a 3- government and the public, adequacy of economically achievable; and (3) is dBA reduction in a miner’s noise supply, questions of employment, and technologically achievable. See exposure. Exposure and sound level are utilization of energy may all be Secretary of Labor v. A.H. Smith, 6 not synonymous terms because an considered. FMSHRC 199 (1984); Secretary of Labor exposure includes a time factor. MSHA MSHA has determined that retention v. Callanan Industries, Inc., 5 FMSHRC has determined that a 3-dBA reduction of the existing permissible exposure 1900 (1983). in a miner’s exposure is the relevant level, threshold, and exchange rate In determining the technological factor in determining feasibility. This is under the final standard would not feasibility of an engineering control, the true because the permissible exposure result in any incremental costs for Commission has ruled that a control is level is a personal exposure standard, engineering controls for the metal and deemed achievable if, through which can be controlled using nonmetal sector and would result in reasonable application of existing engineering and administrative controls. annualized costs of $1.6 million for the products, devices, or work methods, MSHA chose a 3-dBA reduction because coal mining sector. As described in with human skills and abilities, a accuracy of the current noise more detail in the Agency’s final workable engineering control can be measurement instrumentation is 2 dBA, Regulatory Economic Analysis, MSHA applied to the noise source. The control a control would not be deemed effective evaluated various engineering controls does not have to be ‘‘off-the-shelf,’’ but until the measured reduction exceeds and their related costs. it must have a realistic basis in present the accuracy of the instrumentation. The In determining which engineering technical capabilities. 3-dBA reduction in a miner’s exposure controls the metal and nonmetal In determining the economic is different from and should not be industry will have to use under the final feasibility of an engineering control, the confused with the discussion of the rule, MSHA considered the engineering Commission has ruled that MSHA must exchange rate in this preamble.
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The Agency is cognizant that there operating conditions, new technology, several supportive comments, the may be instances where all feasible or failure of the mine operator to Agency has decided that this delayed engineering and administrative controls comply with the specified control effective date best meets the needs of have been used and a miner’s noise measures. the mining community. exposure cannot be reduced to the VII. Section-by-Section Analysis Section 62.101 Definitions permissible exposure level. Under those circumstances, in both the coal and Section 62.100 Purpose and Scope; The definitions discussed below are metal and nonmetal sectors, MSHA Effective Date included in the final rule to facilitate intends to enforce the final rule understanding of technical terms that The purpose of the mandatory health are used in this part. Some of the consistent with its current p code policy standard established in part 62 is to for metal and nonmetal mines. proposed definitions have been revised prevent the occurrence and reduce the Currently, when MSHA issues a to be consistent with the common usage progression of occupational noise- citation for a noise overexposure, the of such terms. For example, the operator must use all feasible induced hearing loss among miners in Agency’s proposed use of the term engineering and administrative controls every surface and underground metal, ‘‘supplemental baseline audiogram’’ has to bring noise exposures within the nonmetal, and coal mine subject to the been changed to the more commonly permissible level. Under current MSHA Federal Mine Safety and Health Act of used ‘‘revised baseline audiogram.’’ policy where feasible engineering or 1977. The final rule also includes a administrative controls have failed to The final rule establishes a single definition for action level. MSHA lower noise exposures to a permissible uniform noise standard applicable to all moved the definition of action level level at a metal or nonmetal mine, the mines. Most commenters favored the from the text of the proposed rule and citation may be terminated on the one-rule format, agreeing with the included it in the definition section of condition that personal protective Agency that consolidation and the final rule to be consistent with the equipment is provided and worn. This simplification of the existing multiple terms permissible exposure level and type of termination, referred to as a ‘‘P’’ standards may help to facilitate dual hearing protection level which are code, is permitted after certain understanding of, and thus compliance in the definition section. In addition, on procedures have been followed. with, regulatory requirements. the suggestion of several commenters If the District Manager where the Prior to this final rule, MSHA had who expressed confusion over the use of citation was issued believes a ‘‘P’’ code four sets of noise standards: for surface the proposed term ‘‘designated is warranted, the Manager reviews the metal and nonmetal mines (30 CFR representative,’’ MSHA has not adopted situation in consultation with field 56.5050), for underground metal and this term in the final rule, but instead enforcement staff, headquarters officials, nonmetal mines (30 CFR 57.5050), for has substituted the term ‘‘miner’s and MSHA technical experts. This underground coal mines (30 CFR part designee.’’ Also, because no commenter review includes an evaluation of the 70, subpart F), and for surface coal supported MSHA’s proposed definition circumstances surrounding the mines and surface work areas of of a ‘‘hearing conservation program,’’ overexposure, with particular emphasis underground coal mines (30 CFR part that definition has not been adopted in on assessing the feasibility and 71, subpart I). The surface and the final rule. In its place, MSHA is effectiveness of control options. underground noise standards for metal incorporating the elements of a If the reviewers determine that a ‘‘P’’ and nonmetal mines were identical, and traditional hearing conservation code is appropriate, the citation will be the surface and underground noise program into the text of the final rule. terminated and the termination will standards for coal mines were nearly Several commenters requested that state the minimum acceptable identical. MSHA provide a definition for performance requirements for hearing MSHA was influenced by several ‘‘feasible’’ engineering and protectors, and the minimum acceptable factors in deciding to promulgate this administrative controls, indicating that engineering and administrative controls final rule: the prevalence of hearing loss the term is vague and subject to varying that must be used in conjunction with among miners despite experience with interpretations. Because of the the hearing protectors. After a ‘‘P’’ code the current standard, conditions in the performance-oriented nature of the has been issued, MSHA provides the mining industry, MSHA’s review of the requirements for the use of engineering National Institute for Occupational latest scientific information, the and administrative controls, MSHA has Safety and Health (NIOSH) a copy of the comments submitted in response to the refrained from including an explicit associated technical documentation to proposed rule, and the requirements of definition of this term. Rather, MSHA alert researchers of the specific the Mine Act. notes in the discussion under instances of noise overexposures where The rule contains provisions that are ‘‘Feasibility’’ (Part VI of this preamble), noise exposures cannot be reduced to consistent with many of OSHA’s that it follows the Federal Mine Safety permissible levels using feasible requirements yet tailored to meet the and Health Review Commission case engineering or and administrative specific needs of the mining law as to what constitutes a feasible controls. SHA considers both community. In addition, many of the noise control for enforcement purposes. technological capabilities and the provisions are similar, if not identical, MSHA further notes in that discussion economic impact of a control. to the existing MSHA noise standards, that it will provide additional guidance MSHA regularly reviews those which will allow for continuity in the in a companion compliance guide to instances where ‘‘P’’ codes have been transition to the new rule. this final rule. issued to determine whether conditions The final rule takes effect one year A few comments were received have changed or new technology is after the date of publication. MSHA regarding MSHA’s use of non-standard available to warrant reconsidering the recognizes that successful terminology and abbreviations in the justification for the ‘‘P’’ code. MSHA implementation of the final rule proposal, in particular, the use of the may withdraw the ‘‘P’’ code if the requires training of MSHA personnel terms ‘‘decibel A-weighted,’’ ‘‘dBA,’’ original justification for the ‘‘P’’ code is and guidance to miners and mine and ‘‘sound level (in dBA).’’ MSHA no longer valid. The decision may be operators, particularly small mine intends for the terminology used based on such factors as a change in operators. Therefore, in response to throughout this rule to be both
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.041 pfrm08 PsN: 13SER2 49578 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations technically correct and readily more stringent than others, even the testing under § 62.170(a) of the final understood. Therefore, for technical least rigorous of the state requirements rule. accuracy and consistency with usage in will provide an acceptable level of Criterion level refers to the sound the mining community for the past 25 competence for audiologists. The final level which, if applied for 8 hours, years, the Agency is deleting the rule adopts the requirement that results in 100% of the dose permitted by definition of the term ‘‘decibel A- audiologists hold an ASHA certification the standard. The definition remains weighted’’ and is rephrasing the or a license from a state board of unchanged from the proposal. Under definition of the term ‘‘sound level.’’ examiners, which is consistent with § 62.110(b)(2)(iv) of the final rule, the The following is a summary of some MSHA’s determination that such a criterion level is a sound level of 90 of the key features of the definitions that certification or license is essential to the dBA. If applied for 8 hours, this sound are used in the final rule along with a implementation of an effective hearing level will result in a dose of 100% of the discussion of the comments that the conservation program. Properly trained permissible exposure level (PEL), Agency received in response to the and certified audiologists are qualified established by § 62.130 as an 8-hour proposal. to conduct audiometric testing, evaluate time-weighted average (TWA8) of 90 Access is the right to examine and audiograms, and supervise technicians dBA. The criterion level is a constant. copy records. MSHA is adopting the who conduct and evaluate audiograms. On the other hand, the permissible definition from the proposal, which is The licensing requirements for exposure level is a sound level of 90 consistent with the term used in several audiologists in the final rule are also dBA for 8 hours or a sound level of 95 of MSHA’s and OSHA’s existing health consistent with similar requirements in dBA for 4 hours. Further discussion is standards. In response to commenters OSHA’s noise standard. The term provided under § 62.110(b)(2)(iv) of the who requested that MSHA include a ‘‘audiologist’’ is discussed further under preamble regarding dose determination. ‘‘no cost’’ provision in this definition, § 62.170 of the preamble regarding Decibel (dB) is a unit of measure of MSHA notes that such a provision is audiometric testing. sound pressure levels. It is defined in included in the specific section in Baseline audiogram is the audiogram, the final rule in one of two ways, which it would be applicable. The term recorded in accordance with § 62.170 of depending upon the use. The proposed ‘‘access’’ is discussed further under this part, against which subsequent definition remains unchanged; it § 62.190, regarding records. audiograms are compared to determine continues to include definitions for Action level is an 8-hour time- the extent of hearing loss, except in measuring sound pressure levels and for weighted average sound level (TWA8) of those situations in which this part measuring hearing threshold levels: 85 dBA, or equivalently a dose of 50%, requires the use of a revised baseline (1) For measuring sound pressure integrating all sound levels from 80 dBA audiogram for such a purpose. With the levels, the decibel is 20 times the to at least 130 dBA. The action level is exception of the term ‘‘revised,’’ which common logarithm of the ratio of the discussed further under § 62.120 of the replaces the term ‘‘supplemental,’’ the measured sound pressure to the preamble. definition of baseline audiogram is standard reference sound pressure of 20 Audiologist is a professional unchanged from the proposal. The micropascals (µPa), which is the specializing in the study and baseline audiogram establishes a threshold of normal hearing sensitivity rehabilitation of hearing and who is reference for making hearing loss at 1000 Hertz; and certified by the American Speech- determinations. (2) For measuring hearing threshold Language-Hearing Association or is Although many commenters favored levels, the decibel is the difference licensed by a state board of examiners. the proposal, others believed that a true between audiometric zero (reference The vast majority of commenters baseline, by definition, is conducted pressure equal to 0 hearing threshold indicated no preference for further prior to exposure to noise. MSHA notes level) and the threshold of hearing of restrictions to MSHA’s proposed that the final rule explicitly allows mine the individual being tested at each test definition, which is identical to that operators to use existing audiograms as frequency. used by OSHA in its occupational noise the baseline, provided that they were Dual Hearing Protection Level is a standard. taken under the conditions meeting the TWA8 of 105 dBA, or equivalently, a Some commenters, however, believed testing requirements of this rule. For the dose of 800% of that permitted by the that the definition of ‘‘audiologist’’ final rule, the Agency concludes that the standard, integrating all sound levels should specifically require certification reasons discussed in the preamble to the from 90 dBA to at least 140 dBA. In the by the American Speech-Language proposal remain valid. There MSHA proposal, the definition was included Hearing Association (ASHA), as discussed the importance of the testing within the dual hearing protection evidenced by a Certificate of Clinical requirements that are to be followed in requirement itself. The term is set forth Competence. Other commenters conducting the baseline audiogram, as it as a definition in the final rule for the supported a proviso being added to the is the reference against which sake of clarity. definition of ‘‘audiologist’’ that state subsequent audiograms are to be Exchange rate is the amount of licensing requirements guarantee that compared. If the baseline audiogram is increase in sound level, in decibels, the licensees are as competent as those not conducted properly, it will not truly which would result in reducing the certified by ASHA. The rationale for this reflect the miner’s hearing thresholds. allowable exposure time by half in order comment was that state licensing boards As a result, any changes between the to maintain the same noise dose. In vary significantly from state to state, and baseline and subsequent tests may be response to a comment which requested licensing requirements in some states masked. Accordingly, MSHA is clarification of this definition, MSHA are not as stringent as ASHA adopting the proposed definition. has added language to the final rule certification requirements. The definition of baseline audiogram which states that for purposes of this The final rule does not adopt the also includes the provision that hearing part, the exchange rate is 5 decibels (5 suggestion of commenters that the final loss determinations may require the use dB). In the final rule, a 5-dB increase or rule accept licensing by only those of a ‘‘revised’’ baseline under specific decrease in the sound level corresponds states whose licensing standards are circumstances. Those circumstances are to a halving or doubling of the allowable sufficiently rigorous, because although noted in the further discussion of exposure time. Thus, a 5-dB increase, some state licensing requirements are baseline audiogram and audiometric from 90 dBA to 95 dBA, would result
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Exchange rate is discussed further under organizations have recommended that Qualified technician is a person who § 62.110(b)(2)(iv), regarding dose the EPA reconsider its rating system. has been certified by the Council for determination. Therefore, MSHA is adopting the Accreditation in Occupational Hearing Hearing protector refers to any device language in the proposed definition Conservation (CAOHC) or by another or material, capable of being worn on which permits any scientifically recognized organization offering the head or in the ear canal, sold wholly accepted indicator of noise reduction equivalent certification. The proposed or in part on the basis of its ability to value. Further discussion of noise definition remains unchanged in the reduce the level of sound entering the reduction ratings is located under final rule. ear, and which bears a scientifically § 62.110(b)(2)(i), regarding noise Several commenters suggested accepted indicator of noise reduction exposure assessment. additional requirements while other value. The proposed definition remains Hertz (Hz) is the international unit of commenters favored less restrictive unchanged in the final rule. Although frequency, equal to cycles per second. requirements for the qualified one commenter suggested that the The definition has been changed from technician: some commenters did not phrase ‘‘sold wholly or in part on the the proposal. One commenter suggested agree with the proposed requirement basis of its ability to reduce the level of that stating the range of audible that a qualified technician be certified sound’’ be deleted from this definition frequencies for humans with normal by the Council for Accreditation in because a hearing protector’s hearing is superfluous to a definition for Occupational Hearing Conservation or effectiveness cannot be reliably hertz. MSHA agrees, and the reference by another recognized organization determined on the basis of the intended has not been adopted in the final rule. offering equivalent certification. Several purpose for which it is sold, MSHA’s Medical pathology is a condition or commenters recommended that MSHA definition follows the Environmental disease affecting the ear. The definition adopt the requirements for technicians Protection Agency’s (EPA) labeling of medical pathology remains in the OSHA noise rule, which allows standards for hearing protectors (40 CFR unchanged from the proposal. A few physicians and audiologists discretion § 211.203(m)). Under the EPA labeling commenters suggested that the to judge the qualifications of standards, a hearing protector is defined definition be reworded. The term, technicians. A number of commenters as: which is also used in OSHA’s advocated that the final rule be occupational noise standard, is adopted consistent with the OSHA noise ** * any device or material, capable of being worn on the head or in the ear canal, in MSHA’s final rule for use in contexts standard and exempt technicians who that is sold wholly or in part on the basis of which do not require actual diagnosis operate microprocessor audiometers its ability to reduce the level of sound and treatment, but which may from any certification requirement. This entering the ear. ultimately be diagnosed and treated by was based on the commenters’ views This includes devices of which hearing a physician. The Agency intends that that a properly trained technician, protection may not be the primary function, ear injuries be included as a condition under the direction of a physician or an but which are nonetheless sold partially as or disease affecting the ear. Medical audiologist, would have the competence providing hearing protection to the user. pathology is discussed further in the to perform the tests. These commenters Accordingly, MSHA is adopting the preamble sections addressing believed that a requirement for proposed definition. As a result, not all § 62.160(a)(5), regarding hearing certification by CAOHC or an equivalent devices or materials that are inserted in protectors, § 62.172(b)(1), regarding body would unnecessarily limit the or that cover the ear to reduce the noise evaluation of audiograms, and flexibility of mine operators in testing exposure qualify as a hearing protector § 62.173(a) and (b), regarding follow-up employees, and could result in fewer under the final rule. For example, a evaluation when the audiogram is tests being conducted. One commenter hearing aid or cotton does not qualify as invalid. stated that the final rule should require an acceptable hearing protector under Miner’s designee is any individual or CAOHC certification as the minimum the final rule. organization to whom a miner gives qualification for audiometric Although several commenters agreed written authorization to exercise the technicians, and not accept with the proposal that the hearing miner’s right of access to records. This certifications by other organizations, protector should be required to have a definition is new to the final rule. pointing out that CAOHC is currently scientifically accepted indicator of noise MSHA received several comments to the the only organization that currently reduction value, other commenters proposal’s use of the term ‘‘designated issues such certifications. suggested that MSHA’s definition representative,’’ which caused MSHA has concluded that a specifically include the manufacturer’s confusion with the term ‘‘representative certification requirement for noise reduction rating (NRR) or a of miners’’ in 30 CFR § 40.1(b). MSHA audiometric technicians is not overly requirement that the attenuation be intended that the two terms have restrictive, and it ensures the necessary measured according to standards of the distinct meanings. Accordingly, for level of knowledge and proficiency to American National Standards Institute clarification, MSHA has replaced the perform audiometric tests under the (ANSI). Since EPA requires that all proposed term with the new term, final rule. MSHA has also concluded hearing protector manufacturers include ‘‘miner’s designee.’’ Further discussion that certifications from organizations labeling information indicating a noise of the term ‘‘miner’s designee’’ is found other than CAOHC are acceptable, reduction rating, a hearing protector under § 62.190(b), regarding records. provided that the organization imposes bearing such a label would indicate to Permissible exposure level is a TWA8 equivalent requirements. Contrary to the a mine operator that it meets MSHA’s of 90 dBA or equivalently a dose of statements of some commenters, definition of a hearing protector. 100% of that permitted by the standard, CAOHC is not the only organization that However, MSHA is not limiting the integrating all sound levels from 90 dBA issues such certifications—the U.S. range of hearing protectors only to those to at least 140 dBA. No miner shall be armed forces train technicians to
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.044 pfrm08 PsN: 13SER2 49580 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations perform audiometric tests and issues age. When the permanent hearing loss at result of the circumstances set forth in certifications. Such certifications would all three frequencies is averaged, the § 62.170(c)(1) or (c)(2), to be used in lieu be accepted under the final rule. hearing loss must be reported if the of the baseline audiogram in measuring The final rule also adopts the average loss in either ear is 25 dB or changes in hearing sensitivity. With the proposed requirement that technicians greater. In making this calculation, a exception of the clarifying change in who operate microprocessor revised baseline would be established terms from ‘‘supplemental’’ baseline audiometers have CAOHC or equivalent and used where there has been a audiogram to ‘‘revised’’ baseline certification, to ensure that these significant improvement in hearing audiogram, the definition in the final technicians demonstrate the same level sensitivity, in accordance with the rule remains unchanged from the of proficiency as those technicians who provisions of § 62.170(c)(2). proposal. Use of the term ‘‘revised’’ is operate manual audiometers. Although MSHA is adopting the proposed consistent with the OSHA noise microprocessor audiometers may be definition of reportable hearing loss— standard. Some commenters suggested easier to operate than manual the extent of hearing loss that must be using the term ‘‘reference’’ baseline audiometers, MSHA has concluded that reported to the Agency pursuant to audiogram, however; MSHA believes a certification requirement is still § 62.175(b) of the final rule. Some that less confusion will result by appropriate for technicians who operate commenters who were satisfied with the adopting the term used by OSHA. In this equipment. MSHA’s final rule, proposed 25-dB level for reporting a addition, for further clarity and unlike OSHA’s noise standard, does not hearing loss expressed concern that the accuracy, MSHA is replacing the include detailed procedural proposed requirement does not proposed reference to hearing ‘‘acuity’’ requirements for audiometric testing. discriminate between occupational and with hearing ‘‘sensitivity.’’ Further Instead, the training and expertise of the non-occupational hearing loss. Other discussion of a revised baseline individuals conducting tests is an commenters favored a lower, 10 dB or audiogram is provided under essential element of an effective 15 dB, hearing loss for reportability § 62.170(c), in addition to the related audiometric testing program. For these purposes because the proposed 25-dB discussions on reportable hearing loss reasons, MSHA has chosen not to hearing loss level permits too much and standard threshold shift. exempt technicians who operate damage to occur before reporting is Sound level is the sound pressure microprocessor audiometers from the required. Still other commenters level in decibels, measured using the certification requirements in the final recommended that a hearing loss should A-weighting network and a slow rule. Further, the requirement for be reportable only if it is the subject of response. The final definition is CAOHC or equivalent certification is not a workers’ compensation award. These essentially unchanged from the proposal overly burdensome on the mining commenters believed that workers’ but is reworded for accuracy. Sound industry, as 19,000 technicians compensation data would make good consists of pressure changes in air currently hold this qualification due to reporting criteria and also noted that the caused by vibrations. These pressure OSHA’s requirement for CAOHC accuracy of the reported data could be changes produce waves that move out certification. The 19,000 CAOHC confirmed with state workers’ from the vibrating source. The sound technicians are located around the compensation agencies. Additionally, level is a measure of the amplitude of country. the complex calculations currently these pressure changes and is generally The requirements for audiometric necessary for determining whether a perceived as loudness. For the purpose technicians in the final rule are similar reportable hearing loss has occurred of this rule, the sound level is expressed to requirements in regulations of the could be avoided. in the unit ‘‘dBA.’’ U.S. Army, Air Force, and Navy, which MSHA’s definition of a reportable Under § 62.110(b)(2)(v) of the final require the technician to be CAOHC- hearing loss represents a substantial loss rule, sound pressure levels would be certified or certified through equivalent of hearing, which would provide a measured using the military medical training and be under reliable indication of the effectiveness of A-weighting network and the slow the supervision of a physician or the intervention strategies of the mining response. A-weighting refers to the audiologist. Qualified technicians are industry. The requirement is consistent frequency response network closely further discussed under § 62.170, with the existing OSHA noise standard corresponding to the frequency response regarding audiometric testing and which requires any 25-dB loss to be of the human ear. This network reduces § 62.172(a)(2), regarding evaluation of recorded in an employer’s records. In sound energy in the upper and lower audiograms. addition, § 62.175(b) of the final rule, frequencies (less than 1000 and greater Reportable hearing loss is a change in which is identical to § 62.190 of the than 5000 Hz) and slightly amplifies hearing sensitivity for the worse, proposal, creates an exception for sound energy between the frequencies relative to the miner’s baseline reportable hearing loss when a of 1000 and 5000 Hz. The slow-response audiogram or a revised baseline physician or audiologist has determined time refers to the slow exponential-time- audiogram established in accordance that the loss is neither work-related nor averaging characteristic. The with § 62.170(c)(2), of an average of 25 aggravated by occupational noise specifications of the A-weighting dB or more at 2000, 3000, and 4000 Hz exposure. Furthermore, workers’ network and the slow-response time are in either ear. The definition of compensation reporting criteria, which found in ANSI S1.25–1991, reportable hearing loss remains are controlled by the states and varies ‘‘Specification for Personal Noise essentially unchanged from the from state to state, may produce Dosimeters,’’ and ANSI S1.4–1983, proposal, with the exception that the inconsistent reporting to MSHA, ‘‘American National Standard proposal’s reference to ‘‘supplemental depending upon the state criteria that Specification for Sound Level Meters.’’ baseline audiogram’’ has been replaced are being applied. Further discussion of A few commenters were concerned with ‘‘revised baseline audiogram.’’ reportable hearing loss is provided that MSHA’s abbreviation ‘‘dBA’’ was Under the final rule, reportable under § 62.175(b), regarding the technically incorrect, because it is the hearing loss is calculated by subtracting notification of audiometric test results sound level that is A-weighted, not the the current hearing levels from those on and reporting requirements. decibel. MSHA recognizes that there are the baseline audiogram at 2000, 3000, Revised baseline audiogram is an several scientific fields employing and 4000 Hz and may be corrected for annual audiogram designated, as a distinct acoustical terminology,
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Because the especially in the early stages of noise- the proposal and supplemental proposal abbreviation ‘‘dBA’’ has come to be a induced hearing loss. to include in one section all provisions widely accepted way of succinctly Many commenters voiced concern that address mine operators’ assessment denoting a sound level that is A- that any hearing loss would be and evaluation of miners’ noise weighted and because the majority of considered a result of occupational exposures. The provisions of this the mining community has used this noise exposure. These commenters section of the final rule include the terminology over the past 25 years and believed that many non-occupational requirements that mine operators: did not voice any opposition, MSHA causes could produce a hearing loss and (1) Establish a system to monitor has adopted the proposed abbreviation miners’ noise exposures; ‘‘dBA’’ in the final rule. Further that MSHA should recognize such non- (2) Evaluate each miner’s noise discussion of the A-weighting and slow occupational origins of hearing loss. As exposure to determine continuing response time are provided under stated elsewhere in this preamble, compliance with this part; § 62.110(b)(v), regarding noise exposure MSHA leaves it to the professional (3) Provide affected miners and their assessment. judgement of medical and technical Standard threshold shift is a change personnel to determine, through representatives the opportunity to in hearing sensitivity for the worse interviewing and thorough examination, observe noise exposure monitoring; and relative to a miner’s baseline audiogram whether the origin of hearing loss is (4) Notify miners when their noise or relative to the most recent revised occupational or non-occupational. exposure equals or exceeds certain limits set by this final rule. audiogram, where one has been MSHA believes, after considering the The provisions of this section are established. The hearing loss is relevant factors and reviewing current calculated by subtracting the current similar to provisions in § 62.120(a) and U.S. armed forces and international (f) of the proposal and § 62.120(g) of the hearing levels from those measured by standards, that the definition of a the baseline or revised baseline supplemental proposal. The final rule, standard threshold shift in the final rule like the proposal, requires the mine audiogram at 2000, 3000, and 4000 Hz, is the most appropriate. Further and, optionally, correcting for age. A operator to establish a system of discussion is provided under § 62.172, monitoring to evaluate each miner’s standard threshold shift is defined as regarding the evaluation of audiograms. when the average loss in either ear has noise exposure. The monitoring reached 10 dB. The proposal is Time-weighted average-8 hour (TWA8) requirement establishes specific goals essentially unchanged, except that the is the sound level which, if constant for a mine operator’s monitoring system, term ‘‘sensitivity’’ has replaced the term over 8 hours, would result in the noise including: ‘‘acuity.’’ dose measured. The proposed definition (1) Determining if miners’ noise OSHA defines a standard threshold remains unchanged in the final rule. exposures reach any of the limits shift in essentially the same way and This value is used in the final rule in established by this final rule; requires that an employee’s annual connection with various limits; for (2) Assessing the effectiveness of the audiogram be compared to his or her example, the permissible exposure level engineering and administrative noise baseline audiogram to determine if the is a TWA8 of 90 dBA and the action controls in place; annual audiogram is valid and if a level is a TWA8 of 85 dBA. (3) Identifying areas of the mine standard threshold shift has developed. Not all noise-measurement where the use of hearing protectors is NIOSH (1995) recommends that the instruments provide readouts in terms required; and criteria for a standard threshold shift be of an 8-hour time-weighted average. (4) Ensuring that the noise exposure a 15–dB decrease in hearing sensitivity Personal noise dosimeters, for example, information necessary for proper at any one of the audiometric test measure noise as a percentage of evaluation of miners’ audiograms is furnished to audiometric test providers. frequencies from 500 to 6000 Hz on two permitted dosage, with the permissible The rule is flexible, that is, it does not sequential audiograms. The shift in exposure level equated to 100%. Noise prescribe how the mine operator will hearing sensitivity must be in the same dose may be converted, in accordance accomplish the goals it sets, but rather ear. NIOSH believes this criteria is with § 62.110 of the final rule, to an sufficiently stringent to detect leaves it to the mine operator to equivalent TWA8 to determine if the determine the best means by which to developing hearing loss while excluding action level or the permissible exposure normal variability in workers’ hearing achieve those goals. level has been exceeded and to evaluate sensitivity. NIOSH’s previous (1972) Like the supplemental proposal, the the impact of engineering and criteria defined standard threshold shift final rule requires the mine operator to administrative controls. Accordingly, as a change of 10 dB or more at 500, give prior notice to affected miners and MSHA has provided a list of TWA 1000, 2000 or 3000 Hz; or 15 dB or more 8 their representatives of the date and conversion values in Table 62–2 of the at 4000 or 6000 Hz. time of exposure monitoring by the MSHA’s definition of standard final rule, based on a criterion level of mine operator, and to provide miners threshold shift in the final rule will 90 dBA for 8 hours. and their representatives the identify individuals suffering shifts as Noise exposure must be determined opportunity to observe such monitoring. large as 30 dB at 4000 Hz with no shifts for the entire shift, but regardless of the The final rule also requires that the at the lower frequencies. This permits length of the work shift, a determination mine operator notify miners in a timely the early identification of individuals at of noncompliance with the noise manner if their noise exposures reach risk, so that corrective measures may be standard will be based upon exceeding the levels specified. This ensures that instituted. For example, there are some 100% exposure and the TWA8 (and a 5- miners are aware that they have been instances where significant threshold dB exchange rate). It would thus be exposed to excessive noise and may shifts in hearing level occur at higher improper to adjust a TWA8 reading for encourage them to use the hearing test frequencies (4000 and 6000 Hz) an extended work shift. protectors provided by the mine
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.048 pfrm08 PsN: 13SER2 49582 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations operator and participate in the Another concern of commenters was noise dosimeter or the formula included audiometric testing program provided the proposed requirement that mine in paragraph (b) of this section of the by the mine operator. Miners must also operators establish a system of final rule. be notified of the corrective action taken monitoring which ‘‘effectively evaluates Determination of Dose if their exposures exceed the each miner’s noise exposure.’’ These permissible exposure level. commenters expressed concern that this Paragraphs (b)(1) and (b)(2) of § 62.110 of the final rule include System of Monitoring provision could place an undue burden on mine operators. Many of these requirements for determining a miner’s Paragraph (a) of § 62.110 of the final commenters suggested that monitoring noise dose. These requirements are rule requires mine operators to establish areas of the mine, representative job essentially the same as those in a system of monitoring that evaluates tasks, or similar occupations would be § 62.120(a) of the proposal. They each miner’s noise exposure sufficiently sufficient to meet the intent of the rule. contain several revisions in language to to determine continuing compliance A few commenters suggested that accommodate the changes in the with all aspects of the final rule. The monitoring should occur only when threshold and range of integration for final rule, like the proposal, takes a information exists that a miner’s noise the permissible exposure level and dual performance-oriented approach, and exposure equals or exceeds the action hearing protection level. Additionally, neither the methodology nor the level. According to one commenter, the final rule, unlike the proposal, intervals of monitoring are specified. because a mine operator’s insurance specifically refers to the use of personal Under § 62.120(f) of the proposed rule, carrier may conduct noise exposure noise dosimeters in determining a mine operators would have been monitoring, monitoring by the mine miner’s noise dose. Finally, the final required to establish a system of operator would not be necessary. rule does not adopt the term ‘‘miner’s monitoring ‘‘which effectively evaluates noise exposure measurement’’ used in each miner’s noise exposure.’’ In response to these commenters, the the proposal, but instead substitutes the Despite a number of commenters who language of this section of the final rule term ‘‘miner’s noise dose questioned the need for monitoring by has been reworded to provide that the determination’’ to be consistent with the the mine operator, MSHA has mine operator must establish a system flexible and performance-oriented determined that operator monitoring is of monitoring that ‘‘evaluates each approach taken by the final rule. This needed to identify those miners who are miner’s noise exposure sufficiently to change in terminology reflects the fact subjected to noise exposures that may determine continuing compliance with that mine operators may choose to be injurious to their hearing, so that this part.’’ This reflects the intent of determine a miner’s noise dose and protective measures can be both the proposal and the final rule, and comply with the requirements of the implemented. Most commenters does not require that each miner be final rule without taking an actual, supported the need for monitoring and individually evaluated for noise physical measurement of a miner’s favored a performance-oriented exposure, provided that the established personal noise exposure. approach, but some suggested a detailed monitoring system serves to detect Paragraph (b)(1) of § 62.110 provides specification-oriented monitoring individual miner exposures equaling or that a miner’s noise dose may be program similar to the program exceeding the specified levels in the determined in one of two ways: previously applicable to coal mines. final rule. As noted by commenters, (1) Through the use of a personal Those commenters questioned how depending upon the circumstances, noise dosimeter; or MSHA would evaluate ‘‘an effective monitoring of areas of the mine or (2) When sound levels and system of monitoring,’’ urging MSHA to representative job tasks may provide a corresponding exposure times are define this term. Other commenters mine operator with sufficient known, the dose is computed using the questioned mine operators’ ability to information to determine compliance specified formula. conduct reliable noise exposure with the final rule. Regardless of the In order to use the formula, it is monitoring. system of monitoring that a mine necessary to know the distribution of MSHA intends to evaluate the operator implements, mine operators sound levels and exposure times effectiveness of mine operators’ continue to be fully responsible for throughout the work shift. Table 62–1 monitoring programs by how well the ensuring that no miner is exposed to provides reference durations for the programs achieve the specified goals. noise above permissible limits, and for sound levels to be used in the During mine inspections, MSHA will ensuring that the required corrective calculation of dose, and Table 62–2 continue to evaluate miners’ noise actions are taken if a miner’s noise addresses converting from dose readings exposures. Overexposures may indicate exposure equals or exceeds the action to equivalent TWA8 values. deficiencies in the mine operator’s noise level or exceeds the permissible The ratios of the actual exposure monitoring program, and may result in exposure level or the dual hearing times to the reference duration for each close scrutiny of the program by MSHA. protection level. As indicated in the specified sound level equal to or In view of the wide variety of mining preamble to the proposed rule, a mine exceeding the threshold (lower bound operations to which the final rule operator could use results of MSHA on the integration range) are summed applies, MSHA has concluded that the sampling or information from and expressed as a percentage of the establishment of rigid and specific equipment manufacturers on the sound permitted standard. A reference monitoring requirements would be levels produced by their equipment in duration is the time over which a miner, unnecessarily inflexible and stifle determining compliance with this rule. exposed at the associated sound level, innovation and improvements in Additionally, as suggested by one receives 100% of the permissible noise monitoring technology. The test of commenter, a mine operator could also dose. The reference duration for an 80- whether the monitoring system is consider the results of other sampling, dBA sound level was added to the table effective is how well the monitoring such as sampling conducted by an in the final rule to reflect the use of the system protects miners. Thus, a insurance carrier, in determining 80-dBA threshold for the determination monitoring program which meets the compliance. It would nonetheless of conformance with the action level, specified goals will be considered benefit mine operators to determine and is consistent with OSHA’s noise effective under the final rule. miners’ noise exposure using a personal standard.
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Formula for Computing a Miner’s Noise Thus, the table is included because it dBA, whether it is collected for 4 hours, Exposure provides an easy reference for 8 hours, or 12 hours, and would If a sound level meter is used, converting the noise dose expressed as indicate noncompliance with the corresponding discrete exposure times a percentage of the permissible permissible exposure level. A miner for each sound level are determined, exposures to the corresponding TWA8. working only 5 or 6 hours can be MSHA noted in the preamble to the and the formula established in this exposed to higher sound levels during proposed rule that the TWA8 and the section is used to compute the miner’s those hours than during an 8-hour shift. dose are to be used interchangeably, and noise exposure. A personal noise Thus, although exposure at 95 dBA is that the TWA8 is not to be adjusted for dosimeter automatically computes a not permitted for 8 hours, exposure at extended work shifts, because the miner’s noise exposure in the same that level would be permitted for a 4- criterion level is based on eight hours. manner as the formula does for readings hour work shift. Conversely, if a miner Noise exposures must reflect the entire taken with a sound level meter over the works a shift longer than 8 hours, the shift in order to determine compliance sound levels would need to be lower. entire measurement period. with the final rule. If the noise dose Like the proposal, the final rule Thus, although exposure at 90 dBA is exceeds 100 percent, regardless of the includes Table 62–1, which lists permitted for 8 hours, it is not permitted length of the work shift, the miner will for a 10-hour work shift. In this way, the incremental sound levels and their be considered to be overexposed to associated reference durations. The conversion of percent dose to TWA8 noise. MSHA requested that simplifies compliance determination. table in the final rule differs from the commenters provide suggestions to help table included in the proposal because Paragraph (b)(2) of this section (1) the Agency ensure that its intent is prohibits adjustments of dose the sound levels that must be integrated clearly conveyed in this final rule, but into the noise exposure determination determinations for the use of hearing received no additional comments. The protectors; (2) specifies the minimum under the final rule are different than Agency provides the following they would have been under the range of sound levels that must be additional guidance. If a miner’s noise included in a miner’s noise dose proposal for the permissible exposure dose exceeds 800 percent, regardless of level and the dual hearing protection determination; (3) requires that the dose the length of the work shift, the miner determination reflect the miner’s full level (see §§ 62.120, 62.130, and will be considered to be exposed above 62.140). These sound levels are shift; (4) requires the use of a 90–dB the dual hearing protection level. If a criterion level and a 5–dB exchange essentially the same as those shown in miner’s noise dose equals or exceeds a Table G–16a in the OSHA noise rate; and (5) requires the use of an A- TWA8 of 85 dBA, regardless of the weighting and slow response instrument standard, except that values above 115 length of the work shift, the miner will setting. dBA are excluded. be considered to be exposed above the Although sound levels in excess of action level. Since the action level and Noise Reduction Ratings 115 dBA are not shown in Table 62–1, permissible exposure level are Section 62.110(b)(2)(i) of the final rule they are to be integrated into the noise determined using 80-dBA and 90-dBA remains unchanged from exposure determination. However, thresholds, respectively, the noise dose § 62.120(a)(3)(i) of the proposal and inclusion of these values in Table 62– using the 90-dBA threshold will always requires that a miner’s noise exposure 1 might lead the reader to erroneously be lower or equal to the noise dose be determined without adjusting for the infer that a miner is permitted to be using the 80-dBA threshold. exposed to sound at such levels, Table 62–2 has been constructed by use of any hearing protector. MSHA contrary to § 62.130(c) of the final rule, equating the permissible exposure level chose not to require the use of any which prohibits the exposure of miners to a dose of 100 percent (criterion level method to determine the effectiveness of hearing protectors. Similarly, the to sound levels exceeding 115 dBA. To of a TWA8 of 90 dBA). More Agency also chose not to provide for avoid any such confusion, Table 62–1 specifically, the TWA8 conversion has not been expanded to include the values in Table 62–2 are based on the any scheme for the use or derating of the corresponding reference durations for use of a 90-dBA criterion level and a 5- noise reduction rating (NRR) currently sound levels greater than 115 dBA. dB exchange rate. Interpolation for determined by manufacturers for Additionally, the Table includes the values not found in this table can be hearing protectors based on laboratory notation that at no time must any determined using the following formula: testing under Environmental Protection excursion exceed 115 dBA. MSHA notes TWA8 = 16.61 log10 (D/100) + 90, Agency (EPA) regulations at 40 CFR that, in any case, the reference durations where D is the dose. Table 62–2 can be §§ 211.201 through 211.214. The noise for sound levels that are not in the table used to determine the equivalent TWA8 reduction rating is an estimate of the can be calculated in accordance with from the percent noise dose. The noise reduction achievable under the formula in the table’s note. Further, conversion is made from dose in percent optimal conditions and was designed to discussion of the range of sound levels to TWA8, regardless of the work shift be used with C-weighted sound levels. that are integrated into a miner’s noise time, and compared to the action level EPA regulations require every hearing dose is included under § 62.110(b)(2), (TWA8 of 85 dBA), the permissible protector manufactured for distribution regarding range of integration. exposure level (TWA8 of 90 dBA), or in the United States to bear a label that dual hearing protection level (TWA8 of includes the protector’s noise reduction Conversion From Dose to TWA 8 105 dBA). Some models of personal rating. Table 62–2 is provided to allow noise dosimeters will provide readings Several commenters supported this conversion of the dose (percent) to the in both the percent dose and TWA8, and aspect of the proposal, and agreed that equivalent eight-hour time-weighted in such cases the conversion table the noise reduction provided by a average (TWA8). The requirements of would not be needed. hearing protector worn by a miner paragraph (b)(1) have been adopted MSHA notes here, as it did in the should not be considered in unchanged from § 62.120(a)(2) of the preamble to the proposal, that noise determining the miner’s noise exposure. proposal. However, the full shift over exposure is interpreted as if averaged They believed the noise should be which the dose determination is made over 8 hours. For example, a dose of 200 controlled by using engineering may be shorter or longer than 8 hours. percent is equivalent to a TWA8 of 95 methods, rather than by relying on
VerDate 18-JUN-99 17:20 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\13SER2.XXX pfrm07 PsN: 13SER2 49584 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations miners to wear hearing protectors. Franks regarding the magnitude of the and the attenuation of the hearing These commenters observed that under hearing losses exhibited by miners. In protector at individual frequencies to MSHA’s existing enforcement policy for any event, although the analyses arrive estimate the sound level beneath the coal mining, in many cases, once at different conclusions, all of these hearing protector. Other commenters adjustment is made for hearing protector analyses indicate that some miners are stated their belief that mine operators use when determining compliance, developing varying degrees of a material lack the sophistication to use this previously installed engineering noise impairment of hearing. Additionally, method. The NIOSH Method No. 1 controls are not maintained. Other these analyses do not support the requires the use of advanced commenters stated that the EPA noise conclusion that a hearing conservation instrumentation and MSHA believes reduction rating is a poor predictor of program that relies primarily or that few mine operators would have the field performance; still others were of exclusively on the use of hearing expensive instruments. In addition, the opinion that the noise reduction of protectors effectively protects all miners because noise in mining is almost hearing protectors should be determined from noise-induced occupational constantly changing its frequency, for individual wearers, not using hearing loss. The Agency also notes that content, or sound level, many average values such as the EPA noise it has examined data submitted by mine measurements of individual noises will reduction ratings. operators in accordance with the need to be conducted before an On the other hand, many other Agency’s notification regulations under appropriate hearing protector could be commenters believed that some 30 CFR Part 50. This data shows that a recommended. consideration of the noise reduction number of miners have incurred a In its Compendium of Hearing value of a hearing protector is called for hearing loss despite the use of hearing Protection Devices (1994), NIOSH in determining noncompliance. Some of protectors. compares several sets of laboratory- these commenters stated that the EPA Other studies and data were measured noise reduction values noise reduction rating is a scientifically submitted by TU Services, Rochester (obtained using various standardized accepted indicator of noise reduction Group, Kerr-McGee Coal Corporation, methods), including the noise reduction value and should be retained. A number and BHP Minerals Inc., in support of rating. NIOSH lists the noise reduction of those commenters believed that their position that a hearing of various hearing protectors estimated hearing protectors could be used conservation program that relies by these various methods. Also, listed effectively and were the most cost- primarily or solely on the use of hearing are the physical attributes, composition, effective method to achieve compliance protectors can adequately protect and compatibility with other personal with the rule. Other commenters miners’ hearing. However, all these safety equipment of the hearing recommended that hearing protectors be studies lack sufficient data to allow protectors. rated using methods recommended by such a conclusion to be drawn because NIOSH (1995) recommends a rating the National Hearing Conservation no information has been provided that adjustment scheme based on the type of Association, while others stated that the indicates the miners’ history of noise hearing protector, resulting in the NIOSH method of adjusting hearing exposure; the history of the use of following field-adjusted ratings: protector ratings should be used. Both of hearing protectors; the type of hearing (1) Earmuffs—75% of the noise these methods are discussed below. protectors used or the circumstances of reduction rating; Several commenters provided use; and what type, if any, of (2) Formable earplugs—50% of the audiometric data from their hearing engineering or administrative controls noise reduction rating; and conservation programs, claiming that that may have been implemented. In (3) All other earplugs—30% of the the data showed that hearing protectors addition, the data or studies lacked noise reduction rating. adequately protect the hearing information on employment history and The National Hearing Conservation sensitivity of miners. As discussed training history. Also, no details of the Association’s Task Force on Hearing earlier, the NIOSH (Franks) analysis of audiometric testing procedures were Protector Effectiveness (Royster, 1995) the two databases cited by MSHA and provided to the Agency. One study recommends that the EPA’s noise the three analyses conducted by Clark submitted by Kerr-McGee used an reduction rating be replaced with a and Bohl under the auspices of the internal control to which the hearing of noise reduction rating-subject fit, or National Mining Association indicate miners were compared. However, the NRR(SF). According to the researchers, that miners are developing hearing loss noise exposure of the control group was the NRR(SF) more realistically reflects of a degree that constitutes material not indicated. Because of the lack of the field performance of hearing impairment. The differences in the such essential information for all the protectors. The noise reduction rating- conclusions of these studies are largely raw data or studies submitted to the subject fit is determined by laboratory attributable to different attributes of the Agency, it is impossible for MSHA to testing after a person fits the hearing control groups, i.e. prior noise exposure determine with any degree of certainty protector to his or her head. This differs or the existence of otological the level of effectiveness of any hearing from EPA’s noise reduction rating, abnormalities (which generally results protectors that may have been used, and which is determined after a researcher in poor hearing), which were used in as a result to give any of these studies fits the hearing protector to the person. the studies. As noted earlier in the significant weight in the development of Both are averages for general preamble, Franks’ analysis used a non- the final rule. Moreover data by BHP populations, but the noise reduction noise exposed population and the and the Rochester Group showed the rating-subject fit is more realistic audiograms of miners who had rates for a standard threshold shift (STS) because it more closely approximates experienced otological abnormalities to be unacceptably high, in excess of 5% field conditions by having the user were screened out. Clark and Bohl, (BHP had a 7% rate and the Rochester insert or put on the hearing protection however, used a population that could Group had a 6.6% STS rate in 1996 and device. The Task Force also have had an occupational noise a 7.9% STS rate between 1988 and recommends continued audiometric exposure or an otological abnormality. 1997). testing whenever hearing protectors are Because of the different baselines, the Some commenters recommended a used. conclusions reached by Clark and Bohl requirement for NIOSH Method No. 1, MSHA notes that the American are different from those reached by which uses the spectrum of the noise Industrial Hygiene Association (AIHA,
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1995) requested that EPA revise its was related to the spectrum of the noise. Crawford and Nozza (1981) report that noise rule on noise labeling According to the researchers, ‘‘The the average noise reduction of the requirements for hearing protectors. The earmuffs’ effectiveness in reducing earplugs was typically 50% of the reasons given for this request included: noise exhibited great variability and manufacturer’s values, except for user- (1) The current method of rating frequently fell far short of the NRR.’’ molded earplugs, whose actual noise hearing protectors overestimates the The researchers did develop a method reduction in the field was near the actual workplace protection by 140 to for predicting the effectiveness of laboratory values. almost 2000 percent. earmuffs, but it is complex as well as Lempert and Edwards (1983) report (2) Absolute levels of protection from impractical. that, in the majority of cases, workers labeled values cannot be predicted. Giardino and Durkt (1996) and received less than one-half of the (3) The labeled values are a poor Giardino and Durkt (1994) expanded on potential noise reduction of earplugs. predictor of relative performance of one the two previously discussed studies. A They conclude that regardless of the hearing protector versus another. total of 1,265 tests were performed on type of earplug used at a facility, a large (4) There are no provisions for 545 distinct machines of 20 different portion of the workers obtained little or retesting the hearing protectors on a types. According to the researchers, no noise reduction. recurring basis. earmuffs provided minimal noise Hempstock and Hill (1990) report that (5) There is no requirement for quality reduction for operators of equipment assessment or accreditation of the test the workplace performance of earmuffs powered by internal combustion more closely approximated the laboratory. engines. They concluded that the noise Despite the fact that OSHA’s noise laboratory performance than earplugs. reduction rating was a poor predictor of For both earmuffs and earplugs, the standard includes methods to estimate earmuff performance under actual the effectiveness of hearing protectors, measured workplace noise reductions mining conditions. were lower and the standard deviations MSHA has concluded that there is no Bertrand and Zeiden (1993), the scientific consensus regarding the higher than those measured in the exception noted above, determined the laboratory. The researchers attribute method that should be used to effectiveness of hearing protectors by these results to the ease of fitting an determine the noise reduction of a measuring the hearing levels of miners earmuff compared to fitting an earplug. hearing protector. exposed to sound levels exceeding 115 Their study also revealed that the Many field studies have been dBA. They found that, although the decrease in effectiveness was dependent conducted on the effectiveness of hearing protectors provided less noise upon the model of hearing protector and hearing protectors in the mining reduction than their ratings indicated, even differed between sites; safety industry. With one exception, these the difference was not significant. For glasses substantially degraded the studies report that hearing protectors, example, miners exposed to 118 dBA performance of earmuffs; workers whether old or new, provide much less experienced hearing levels consistent wearing safety glasses received noise reduction than was measured in with exposure to 98 dBA, indicating approximately one-half of the laboratory the laboratory. In many instances, noise that the hearing protector rated at 24 noise reduction. reduction was minimal and highly dBA provided 20 dBA of noise Royster et al. (1996) also found that variable, indicating that hearing reduction. protector effectiveness cannot be Several research studies performed in personal protective equipment such as reliably predicted under actual use other industries by Pfeiffer (1992), hard hats and safety glasses worn by conditions and is substantially less than Hempstock and Hill (1990), Green et al. miners may affect the noise reduction of that indicated by the noise reduction (1989), Behar (1985), Lempert and hearing protectors. In their study, rating of the manufacturer. These Edwards (1983), Crawford and Nozza wearing safety glasses reduced the noise studies are summarized below. (1981), and Regan (1975) also indicate reduction of earmuffs by about 5 dB at Durkt (1993) studied the effectiveness that hearing protector effectiveness is all frequencies. of 11 models of new earmuffs using substantially less than the noise Pfeiffer (1992) surveyed studies of miniature microphones inside and reduction rating indicated by the hearing protector effectiveness in outside the ear cups. A total of 107 tests manufacturer. German industry, and reports that at were conducted at surface mines on Other findings by these researchers industrial sites, earplugs provided operators of equipment that included sometimes conflict with one or more of between 10 and 15 dB less noise bulldozers, front-end-loaders, and the others, underscoring the logic of reduction, and earmuffs about 6 dB less, overburden drills. When the noise MSHA’s decision not to mandate any than they did in the laboratory. In spectrum included significant amounts rating adjustment system at this time: another part of the study, used but not of low frequency noise, the measured Regan (1975) found that earmuff-type defective earmuffs were tested against noise reduction was much less than the protectors provide the most noise new ones. The used earmuffs provided noise reduction rating. This is relevant reduction and custom molded earplugs significantly less noise reduction than in mining because most diesel-powered the least. new ones. The decrease in reduction equipment, including the machines Behar (1985) found that the measured depended on the model and frequency used at the surface mines, generate noise reduction rating in industrial tested, exceeding 7 dB for some noise primarily in the low frequency settings averaged 14.9 dB lower and frequencies. range. reached 25 dB lower than the Abel and Rokas (1986) report that the Kogut and Goff (1994) studied the manufacturer’s rated value. noise reduction of earplugs decreases effectiveness of earmuffs being used in Green et al. (1989) report workers who with wearing time, and that head and surface and underground mines. A total used earplugs and were receiving one- jaw movement accelerate the decline. of 540 miners were tested wearing their third to one-half of the laboratory-based Cluff (1989) investigated the effect of normal earmuffs. The procedure was noise reduction rating value, and jaw movement on the noise reduction similar, but not identical, to the workers enrolled in an effective hearing provided by earplugs and determined procedure used by Durkt (1993). Like conservation program obtain greater that the change in reduction depended Durkt, the researchers concluded the noise reduction from their hearing on the type of earplug. Self-expanding noise reduction provided by earmuffs protectors. viscose foam earplugs retained more of
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.055 pfrm08 PsN: 13SER2 49586 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations their noise reduction ability than multi- Royster et al. (1996) also report on the loss. These factors include comfort, flanged or glass-fiber earplugs. progress of the American National training, fit, maintenance, and At Noise-Con 81, Berger (1981) Standards Institute Working Group that consistent use. Because engineering and concluded that the performance of has developed a methodology that administrative controls are more reliable hearing protectors decreased with reflects the reduction achieved by and measurable, they must be the first wearing time. Kasden and D’Aniello workers in a well managed hearing line of defense in reducing noise (1976, 1978) found that custom molded conservation program, and is in the exposures. This fact does not, however, earplugs retained their noise reduction process of drafting an ANSI standard diminish the usefulness of hearing after three hours of use during normal around it. While testing their protectors as part of a continuing and activity, but typical earplug methodology, the researchers concluded effective hearing conservation program. performance decreased after three hours that because some test subjects could In recognition of the role played by of use. Krutt and Mazor (1980) report not properly insert an earplug by simply hearing protectors in a hearing that the noise reduction of mineral reading the manufacturer’s instructions, conservation program, MSHA will down earplugs decreases over a three- these instructions may be inadequate. provide guidance to the mining hour period of wear, but the noise As summarized above, many community in estimating the adequacy reduction of expandable foam earplugs researchers have compared the results of of hearing protectors as applied to does not. Casali and Grenell (1989) standardized methods of measuring the individuals in the form of a compliance tested the effect of activity on the noise noise reduction of hearing protectors in guide that will be issued after the reduction provided by an earmuff and a laboratory setting to estimated or publication of the final rule. measured field reductions. Researchers found that there was significant Range of Integration decrease only at 125 Hz and that the have yet to develop a standardized test noise reduction was highly dependent for measuring the noise reduction of Section 62.110(b)(2)(ii) of the final on the fit. hearing protectors in the field. In rule requires the integration of all sound levels over the appropriate range in Royster and Royster (1990) report that general, commenters concurred with determining a miner’s noise dose. Under the noise reduction rating cannot be MSHA’s preliminary conclusion in the the proposal, the range of integration for used to determine or even rank the field proposal that, while methods exist to the action level, the permissible effectiveness of hearing protectors. They measure the noise reduction provided to exposure level, and the dual hearing found that two individuals, using the an individual by a hearing protector, none of these methods has been protection level would have been from same model of hearing protector, can standardized or shown to be effective in 80 to 130 dBA. The ‘‘range of obtain vastly different levels of noise field usage or applies equally to all integration’’ means the level at which reduction. They conclude that types of hearing protectors. This makes the dosimeter starts recognizing the ‘‘Products that are more goof-proof it virtually impossible to accurately sound level and counting it to the sound (earmuffs and foam earplugs) provided predict in any systematic way the in- level where the dosimeter stops higher real-world attenuation than other mine effectiveness of hearing protectors counting. Unlike the proposal, the final HPDs [hearing protection devices].’’ in reducing noise exposures for rule establishes dual thresholds: Casali and Park (1992) report that the individual miners. § 62.120 of the final rule sets the range noise reduction at 500 or 1000 Hz In addition to the studies that have of integration for the action level from showed a high correlation with the been summarized above, MSHA has 80 to at least 130 dBA, while the range overall noise reduction of hearing reviewed the procedures for exposure of integration for both the permissible protectors. Therefore, they believe, measurement in regulations and codes exposure level and the dual hearing models can be developed to predict the of practice (mandatory or protection level is from 90 to at least overall reduction of hearing protectors recommended) of OSHA, selected 140 dBA (§§ 62.130(a) and 62.140). To based upon the measured reduction at a branches of the U. S. armed services, accommodate the dual thresholds, the single frequency, eliminating the need international communities, the language of the final rule has been to adjust the noise reduction rating to International Standards Organization, revised to require the ‘‘appropriate accurately reflect noise reduction in the American National Standards Institute, range’’ of integration of sound levels, field. Casali and Park also believe that and the American Conference of rather than specifying the range of this model could be used to fit hearing Governmental Industrial Hygienists. A integration set forth in the proposed rule protectors objectively. variety of methods are used by these for all dose determinations. Berger (1992), in ‘‘Field Effectiveness organizations, but nearly all of the The term ‘‘all sound levels’’ in the and Physical Characteristics of Hearing entities either specify or imply that final rule includes, but is not limited to, Protectors,’’ reports on the progress of noise reduction provided by hearing continuous, intermittent, fluctuating, the American National Standards protectors should not be considered in impulse, and impact noises. A Institute (ANSI) Working Group S12/ determining a worker’s noise exposure. discussion of impulse and impact noise WG11, which is charged with Accordingly, based on the rulemaking is provided at the end of this section. developing a laboratory methodology of record, and consistent with OSHA’s rating hearing protectors that reflects the noise standard, the final rule adopts the Dual Thresholds noise reduction obtained by workers in proposed requirement that a miner’s Many commenters urged MSHA to the field. Berger also summarizes the noise dose be measured or computed develop a rule consistent with the results of 16 studies involving over without regard to any noise reduction OSHA noise standard, which requires 2,600 subjects on the field performance provided by the use of personal hearing an 80-dBA threshold for the action level of hearing protectors. Earplug field protectors. This is consistent with and a 90-dBA threshold for the ratings averaged about 25% of the MSHA’s determination that there are permissible exposure level. Some published U.S. laboratory ratings other factors that may be as important commenters, however, supported the (ranging from 6% to 52%) and earmuff or even more important than a hearing proposed 80-dBA threshold for both the reduction rates averaged about 60% of protector’s noise reduction in ensuring action level and permissible exposure the laboratory rates (ranging from 33% that a miner is protected from level. Also, a few commenters requested to 74%). occupational noise-induced hearing that MSHA adopt a threshold of 85 dBA
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.057 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49587 for the permissible exposure level, exposure using dual thresholds in order Because industrial impulse noises are while other commenters recommended to be consistent with OSHA. Nearly all almost always superimposed on a that MSHA retain the 90-dBA threshold personal noise dosimeters currently background of moderate-to-high levels used under MSHA’s existing noise being manufactured have variable of continuous noise, and because both standards, believing that sound levels threshold settings that facilitate the can be harmful, it is reasonable to less than 90 dBA were not hazardous collection of noise exposures using two consider their combined effect, rather and that an 80-dBA threshold for different thresholds. Some older than to treat each separately. MSHA has compliance with the permissible personal noise dosimeters that lack the therefore concluded, and the final rule exposure level would merely increase capability of dual thresholds but which reflects, that impulse/impact noise must the number of citations without have been used to measure a miner’s be combined with continuous noise significantly benefitting the miners. noise exposure under MSHA’s existing when a miner’s noise exposure is MSHA has concluded that the noise regulations—may be somewhat determined. This is consistent with adoption of a dual threshold in the final obsolete, but can still be used to make provisions in OSHA’s noise standard. rule is protective and will decrease a a noise exposure measurement to MSHA has received comments on miner’s risk of developing noise- determine conformance with either the whether impulse and impact noise can induced hearing loss. In not adopting action level or the permissible exposure be accurately integrated into the proposed 80-dBA threshold for both level. They simply cannot do both determining a miner’s noise dose. The the permissible exposure level and the simultaneously. Additionally, some of studies cited by these commenters pre- action level, MSHA is not ignoring the the older instruments may not be dated the new ANSI S1.25–1991 scientific evidence, noted in Part V, capable of integrating the required range ‘‘American National Standard Material Impairment, which of sound under the final rule, and will Specification for Personal Noise demonstrates that there is a risk of need to be replaced. Dosimeters.’’ Personal noise dosimeters hearing loss from exposure to sound meeting this standard cover the ranges levels at or above 80 dBA. The Agency Impulse/Impact Noise of sound levels that are to be integrated addressed the risk of hearing As noted above, § 62.110(b)(2)(ii) of into a miner’s noise dose under impairment from prolonged exposure the final rule requires that ‘‘all sound §§ 62.120, 62.130(a), and 62.140 and above 80 dBA in the preamble to the levels,’’ including impulse and impact accurately integrate impulse and impact proposed rule. However, MSHA noise, be integrated into a miner’s noise noise into a worker’s noise exposure. concludes that the dual thresholds in dose determination. Impulse noise MSHA received comments in the final rule will protect miners against sources, such as gunshots, or impact response to its request for data noise-induced hearing loss which noise sources, such as a sledge hammer addressing a critical level to prevent a occurs at those sound levels, primarily striking metal, result in high sound traumatic hearing loss. A critical level is because the final rule incorporates pressure levels being generated almost one which causes immediate and significant changes to the proposed instantaneously. These sources are irreparable damage to the hearing hearing conservation program. hazardous because their duration is so mechanism. The comments received MSHA has concluded that the short that the protective mechanisms of dealt primarily with impulse and protection provided by the final rule the ear do not have sufficient time to impact noise as it pertained to the adequately addresses the risk of noise- react. The final rule, like the proposal, proposed ceiling level of 115 dBA, and induced hearing loss which occurs at does not include a separate provision these comments are therefore addressed exposures between a TWA8 of 85 dBA for impulse or impact noise. under § 62.130 of this preamble. and a TWA8 of 90 dBA. Under the final In the preamble to the proposed rule, Full Work Shift rule, mine operators are required to MSHA discussed in depth the many implement a system of monitoring that factors it considered in determining the Section 62.110(b)(2)(iii) of the final evaluates each miner’s noise exposure merit of proposing an impulse/impact rule has been adopted with some sufficiently to determine compliance noise limit for the mining industry. changes from proposed with part 62. All sound levels ranging Although there is evidence in the § 62.120(a)(3)(ii), and requires that a from 80 to at least 130 dBA must be literature on the harmful effects of miner’s noise dose determination reflect integrated to determine whether a impulse/impact noise, MSHA the miner’s full work shift. Under the miner’s noise exposure equals or concluded that, currently, there is proposed rule, a miner’s noise exposure exceeds a TWA8 of 85 dBA—the action insufficient scientific consensus to measurement would have been required level. Mine operators are required to support a separate impulse/impact noise to integrate all sound levels from 80 enroll miners whose noise exposure standard. Further, existing procedures dBA to 130 dBA during the miner’s full equals or exceeds the action level into for identifying and measuring such work shift. Many commenters supported a hearing conservation program. Under sounds lack the practicality to enable its the proposal, based on their belief that the hearing conservation program, mine effective measurement. This is due, in a miner’s noise exposure should be operators are required to provide part, to the complexity of the monitored for the entire work shift. enrolled miners with hearing protectors, phenomena, where consideration must Several commenters specifically audiometric testing, and training, all in be given to such technical factors as the recommended that full-shift sampling accordance with specific requirements. peak sound pressure level, the shape of also include extended work shifts, that Commenters noted that, in addition to the wave form, the number of impulses is, those that are longer than 8 hours. being protective, a dual threshold is per day, the presence or absence of Another supported the use of dosimetry workable. Many mine operators are steady-state (background) sound, the to determine a miner’s noise exposure. currently using personal noise frequency spectrum of the sound, and MSHA received several comments dosimeters with dual threshold the protective effect of the middle ear suggesting alternatives to full-shift capability for measuring noise acoustic reflex. sampling. Several commenters exposures. Some commenters, familiar As discussed in Part V, Material suggested that miners could be with both OSHA and MSHA Impairment, when impulse/impact monitored only during the loudest regulations, recommend thatMSHA noise is combined with continuous portion of their work shift, assuming require measuring a worker’s noise noise, hearing loss is exacerbated. that this portion was predictable. Under
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.058 pfrm08 PsN: 13SER2 49588 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations this suggested approach, if monitoring Mine operators are free to select the the preamble to the proposal, MSHA during the loudest portion of the work sampling methodology that is specifically sought comments on shift did not indicate an overexposure, appropriate for their mines. However, changing the exchange rate from 5 dB to a full-shift measurement would be mine operators should be aware that a 3 dB. unnecessary. One commenter wanted full work shift sample is typically more Many commenters favored the 5–dB MSHA to specify that the noise indicative of a miner’s noise exposure exchange rate because they thought that measurement be conducted for at least than is a partial-shift sample, and that implementing a 3–dB exchange rate was two-thirds of the work shift, because mine operators are responsible under infeasible. Some of these commenters, this commenter believed that a mine the final rule for ensuring that miners believing that a 5–dB exchange rate is operator cannot always monitor a miner are protected from exposures in excess based on work shifts with intermittent for the complete work shift, and because of the permissible exposure level. Mine noise exposure, felt that a 5–dB two-thirds of a work shift would operators also must ensure that miners exchange rate is more appropriate provide sufficient information to with noise exposures that equal or because mining noise exposures are accurately characterize the shift. exceed the action level must be enrolled generally intermittent. A few of the MSHA noted in the preamble to the in a hearing conservation program. commenters believed the 3–dB proposal that because most mining jobs MSHA therefore recommends that, exchange rate was not supported by have highly variable work tasks, high when a personal noise dosimeter is used scientific evidence. Some commenters mobility, and irregular work schedules, for measurement, the determination be also suggested that, if the 5–dB measurement of a miner’s noise made over the duration of the entire exchange rate is retained, the exposure for a partial shift may not shift. Alternatively, if another dose permissible exposure level should be reliably project the miner’s noise determination methodology is used, it lowered to 88 or 85 dBA, and that either exposure for a full work shift (one that must reflect the noise dose for the a 3–dB exchange rate apply above 115 is at least 8 hours), and monitoring the miner’s full shift. For example, the dBA, or mine operators be prohibited loudest part of the work shift could multiple-shift sampling approach from implementing administrative overestimate the miner’s exposure. recommended by a commenter would controls to control exposures to sound MSHA also received several produce results that are not relevant to levels exceeding 100 or 105 dBA. comments suggesting other ways to compliance with the standard, which is As indicated in the preamble to the measure sound levels or a miner’s noise based upon a miner’s exposure over a proposal, MSHA evaluated the impact a exposure. A few commenters suggested full work shift. 3–dB exchange rate would have on the that if the sound level measured with an One commenter expressed concern measured noise exposure of miners area sample indicated that no possible that personal noise dosimeters would working in U.S. metal and nonmetal overexposure exists, a full-shift only integrate sound levels for 8 hours. mines. Federal mine inspectors measurement would be unnecessary. A On the contrary, it has been MSHA’s collected measurements during the few commenters suggested that the final experience that personal noise rule require a 40-hour multiple-shift dosimeters integrate sound levels for at course of their regular inspections using sampling period in order to better define least 8 hours, or until the personal noise personal noise dosimeters, collecting a representative work exposure. dosimeters are either turned off or data using 5–dB and 3–dB exchange The monitoring requirements of the placed in a standby mode. Therefore, rates simultaneously. final rule are intended to be highly personal noise dosimeters can measure The measurements for a 5–dB performance-oriented. The final rule a miner’s noise exposure during an exchange rate were made using a 90– simply requires that mine operators extended shift. dBA threshold, while the 3–dB effectively evaluate a miner’s noise exchange rate data were obtained exposure to determine compliance with Criterion Level and Exchange Rate without a threshold, allowing for part 62. Section 62.110(b)(2)(iv) of the final analysis of data at values below a TWA8 To be consistent with this rule remains unchanged from proposed of 90 dBA, which is not possible with performance-oriented approach, the § 62.120(a)(3)(iii) and establishes the a 90–dBA threshold. The results of the language of this section of the final rule criterion level of 90 dBA. Because study indicated the selection of an has been revised from the proposal to commenters who referenced the exchange rate substantially affects the require that the miner’s dose criterion level did so in the context of measured noise exposure in the determination reflects the miner’s full the permissible exposure level, their following ways: shift. This means that the mine operator comments are addressed under § 62.130 (1) The percentage of miners whose has flexibility in determining a miner’s of the preamble. noise exposures would be calculated to noise dose, and may choose to use a Section 62.110(b)(2)(iv) of the final exceed a TWA8 of 90 dBA permissible method that does not necessitate rule also adopts the 5-dB exchange rate, exposure level (or an Leq,8 of 90 dBA in sampling over the course of the entire which was proposed in the case of a 3–dB exchange rate) shift. § 62.120(a)(3)(iii). The exchange rate is increased from 26.9% to 49.9% when For example, if a miner who works an the change in sound level which the exchange rate changed from 5 dB to eight-hour shift typically spends four corresponds to a doubling or a halving 3 dB; hours in a noisy area of the mine and of the exposure duration. For example, (2) Switching to a 3–dB exchange rate the other four hours in a quiet area, such using a 5-dB exchange rate, a miner who and setting the permissible exposure as a mine office, the mine operator may receives the maximum permitted noise level at an Leq,8 of 85 dBA would choose to sample the miner’s noise dose over an 8-hour exposure to 90 dBA increase the percentage of miners whose exposure only during the four-hour would have accumulated the same dose exposure is out of compliance with the period that the miner is exposed to as a result of only a 4-hour exposure at permissible exposure level from 67.6% higher noise levels. In such a case, the 95 dBA, or 2-hour exposure at 100 dBA. to 85.5%; and mine operator would have a reasonable If the exchange rate were reduced to 3 (3) Additional engineering and basis for concluding that a full-shift dB, a miner would receive the same administrative noise controls would be measurement is not needed to verify dose with a 4-hour exposure at only 93 required under the 3–dB exchange rate, that the miner is not being overexposed. dBA or a 2-hour exposure at 96 dBA. In and they would be more expensive.
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Although the Agency has not would be extremely difficult and Response time is a measurement of compiled similar data for coal mines, prohibitively expensive for the mining the speed at which an instrument MSHA has concluded that the industry to comply with the existing responds to a fluctuating noise. There consequences of adopting a 3–dB permissible exposure level with a 3–dB are several instrument response times exchange rate would be similar. This exchange rate, using currently available that have been standardized fast, slow, conclusion is based on the similarity of engineering and administrative noise impulse, exponential, and peak. The mining operations and equipment and controls. MSHA therefore cannot quickest response is the peak response the consistency of the exposure data at demonstrate that implementation of and the slowest is the slow. Originally the 5–dB exchange rate in either sector such an exchange rate would be the slow response (1000 milliseconds) of the mining industry. feasible. However, the Agency will was used to characterize occupational Several commenters advocated the continue to monitor the feasibility of noise exposure, because reading the use of a 3–dB exchange rate, citing adopting a 3–dB exchange rate. needle deflections on a meter in rapidly scientific studies to support their fluctuating noise was easier. Using the position. A-Weighting and Slow Response fast response (125 milliseconds) In the preamble to the proposed rule, Instrument Setting resulted in needle deflections that were MSHA noted its awareness of a Section 62.110(b)(2)(v) of the final too difficult for the human eye to consensus in the recent literature that rule, like § 62.120(a)(3)(iv) of the follow. The slow response was in use to noise dose actually doubles more proposed rule, requires that instruments characterize noise exposure at the time quickly than measured by the 5–dB used for measuring noise exposures be when most damage risk criteria were exchange rate, and that there appears to set for the A-weighting network and developed. As a result, both the be a consensus for an exchange rate of slow response. OSHA also uses the A- previously referenced ANSI S1.4 and 3 dB. However, the Agency also noted weighting network and the slow S1.25 instrumentation standards for in the preamble to the proposal that it response for evaluating exposure to sound level meters and personal noise intended to retain the proposed 5–dB noise. dosimeters, respectively, contain exchange rate because of feasibility Weighting networks were originally specifications for the slow response. considerations. designed to approximate the loudness- Some commenters suggested that Under the Mine Act, MSHA is level-sensitivity of the human ear to MSHA adopt the fast response for all required, when promulgating a pure tones. The human ear does not measurements. Others objected to the standard, to make a reasonable use of the slow response only with prediction, based on the ‘‘best available respond uniformly to all frequencies of tones. At low sound pressure levels personal noise dosimeters, where, they evidence,’’ that the industry can believe, the slow response overestimates generally comply with the standard (e.g., 50 dB), the ear is less responsive to low- and high-frequency tones. At the noise exposure for fluctuating or within an allotted period of time. The intermittent noise. These commenters higher sound pressure levels (that is, 90 Agency must demonstrate a reasonable had no objection to using the slow dB), the ear responds more uniformly to probability that the typical mine response with sound level meters where low- and high-frequency tones. Low- operator will be able to develop and the effect of intermittency could be frequency tones are, however, less install controls meeting the standard. taken into account. One commenter damaging to hearing than mid-frequency MSHA noted in the preamble to the stated MSHA should use the fast tones. proposal that the exposure data, in response to conform with an conjunction with the study referenced Several weighting networks have been international consensus standard. above, suggested that it would be developed to take these differences into However, the majority of the scientific difficult for MSHA to make such a account and have been designated as A, community and most international showing in proposing a 3–dB exchange B, and C. Early researchers suggested regulatory authorities accept slow rate. This is particularly true at smaller the use of the A-weighting network response as the appropriate mines, where many mines would not when the sound pressure level was less measurement parameter for have enough employees to allow than 55 dB; the B-weighting network characterizing occupational noise implementation of certain between 55 and 85 dB; and the C- exposures, and it has been used by the administrative controls, such as job weighting network for sound pressure U.S. Department of Labor since the rotation. Although some commenters levels exceeding 85 dB (Scott, 1957). adoption of the Walsh-Healey Public were not persuaded by the discussion in Since that time, however, a scientific Contracts Act noise regulations of 1969 the preamble to the proposal that a 3– consensus has developed on the use of to measure occupational noise exposure. dB exchange rate would be infeasible in the A-weighting network to measure Based upon data included in Part V, the mining industry, MSHA received no occupational noise exposure at all Material Impairment, which showed additional data from commenters sound levels. good correlation between hearing loss contradicting this determination. The acoustical performance of the A- and A-weighted noise exposures, and Additionally, MSHA believes that any weighting network has been defined in the accepted use of the slow response decision on the appropriate exchange consensus standards established by the setting, the final rule adopts the rate for noise dose determinations is American National Standards Institute proposed A-weighting and slow closely linked to a decision on the (ANSI). ANSI S1.4–1983, ‘‘American response settings for instruments that appropriate permissible exposure level, National Standard Specification for are used to determine a miner’s noise and should be considered as part of that Sound Level Meters,’’ and ANSI S1.25– exposure. process. As indicated in the preamble 1991, ‘‘American National Standard discussion of feasibility and under Specification for Personal Noise Observation of Monitoring § 62.130, MSHA has concluded that the Dosimeters,’’ define the identical A- Paragraph (c) of § 62.110 of the final existing permissible exposure level weighting networks for the respective rule, like proposed § 62.120(g), requires should not be revised at this time. instruments. No comments were mine operators to provide affected Revision of the applicable exchange rate received recommending the use of a miners and their representatives with an should also be deferred. Accordingly, weighting network other than the A- opportunity to observe any monitoring MSHA continues to conclude that it weighting network. required under this rule. In addition, the
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.062 pfrm08 PsN: 13SER2 49590 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations final rule requires mine operators to MSHA has consistently considered management. The final rule does not give prior notice to miners and their noise to be a ‘‘harmful physical agent’’ adopt this comment, because MSHA representatives of the dates and times covered under section 103(c) of the broadly interprets the opportunity for when the mine operators intend to Mine Act. The legislative history of the observation of this monitoring to extend conduct the monitoring. MSHA has no Federal Coal Mine Health and Safety to both miners and their representatives, existing requirement in this area. Act of 1969, Conference Report 91–761, consistent with the underlying purposes This provision is consistent with indicates that excessive noise was one of the Mine Act. Further, participation section 103(c) of the Mine Act, which of the harmful physical agents that by miners and their representatives will requires that regulations issued by Congress anticipated would be the enhance miner safety and health MSHA for monitoring or measuring subject of health standards. Also, the awareness and contribute to greater toxic materials or harmful physical legislative history of the Federal Mine understanding of the nature and extent agents such as noise provide miners or Safety and Health Act of 1977 reveals of the noise hazard. their representatives with an that NIOSH had conducted studies on In its Preliminary Regulatory Impact opportunity to observe such monitoring. ‘‘toxic substances,’’ including Analysis for the proposed rule, MSHA MSHA views mine operator monitoring substances in metal and nonmetal used the terms ‘‘off-duty’’ and ‘‘non- as an important component in operators’ mines, and had developed criteria duty’’ miners in the context of efforts to protect the hearing of the documents on those substances, which observation of monitoring. One miners they employ. The primary included noise. In addition, a U.S. commenter raised concerns about purpose of operator monitoring is Circuit Court of Appeals has determined MSHA’s use of these terms, and protection of miners. Monitoring that noise is a ‘‘harmful physical agent’’ questioned whether MSHA intended to provides operators with an awareness of under the Occupational Safety and create a new category of miner. MSHA the miners’ noise exposures at their Health Act. Forging Industry did not intend by using this term to mines and the specific sound levels to Association v. Secretary of Labor, 773 create a new category of miner. Instead, which miners are exposed. In addition, F.2d 1436, 1444 (4th Cir. 1985). MSHA used the two terms it reminds operators of their obligations Accordingly, MSHA has concluded that interchangeably to refer to a miner who to reduce excessive sound levels to noise falls within the scope of section works on a shift other than the one ensure protection of miners. 103(c) of the Mine Act, and that MSHA where he or she is observing the The Agency received a number of has the authority to establish regulations monitoring. To avoid any confusion, comments on this aspect of the that provide miners and their MSHA uses only the term ‘‘off-duty’’ proposal. Several commenters representatives access to noise exposure miner in the final Regulatory Economic supported providing miners and their monitoring conducted by mine Analysis. operators. representatives with an opportunity to One commenter was opposed to Several commenters recommended observe required monitoring. Several letting an off-duty miner or miners’ that the Agency substitute the term commenters stated that miners should representative on the property to ‘‘representatives of miners’’ for ‘‘their observe noise monitoring. The be paid when observing monitoring. On representatives,’’ because they believed the other hand, many commenters commenter stated that this raised a that it was important to clarify that the number of issues, including: stated that section 103(f) of the Mine representatives referred to in this Act, which requires mine operators to section are miners’ representatives Who would be responsible for escorting compensate representatives of miners designated under MSHA’s regulations at these people around the property? Is the who accompany MSHA inspectors on 30 CFR part 40. operator supposed to provide them with inspections, does not apply to Under part 40, the definition of transportation? What happens if they should observation of operator monitoring get injured? They are off duty but still on the ‘‘representative of miners’’ includes mine property. How would this be classified? because it is not conducted as part of an ‘‘ ‘representatives authorized by the MSHA inspection. MSHA agrees. miners,’ ‘miners or their representative,’ The final rule does not specify how Section 103(f) of the Mine Act requires ‘authorized miner representative,’ and the requirement of observation of ‘‘walkaround pay’’ when a other similar terms as they appear in the monitoring must be implemented. representative of miners who is Act.’’ Consequently, MSHA believes Instead, mine operators have the employed by the operator accompanies that the terminology used in the final flexibility to determine, based on an an MSHA inspector during an rule is sufficient to indicate that the assessment of their unique mining inspection of the mine. Section 103(f) ‘‘representative’’ referred to in this operations, how to best implement this does not authorize ‘‘walkaround pay’’ section is a ‘‘miner’s representative’’ provision. MSHA does not believe that for time spent by a representative of designated under part 40. The final rule it is either necessary or in the best miners observing a mine operator’s therefore does not adopt the suggestion interest of miners’ health to impose monitoring program. The final rule, of commenters. additional restrictions on who should be therefore, does not include a Many commenters were opposed to allowed to observe monitoring, or how requirement for mine operators to allowing both miners and their the observation of monitoring should be compensate a representative of miners representatives to observe operator conducted. Most if not all of the for participating in the observation of monitoring. Several commenters stated hypothetical situations raised by the monitoring. that because most mine operators use commenter could occur in contexts One commenter stated that by personal noise dosimeters, which must other than the observation of requiring mine operators to provide be placed on the miner, the miner is monitoring. MSHA expects that these miners’ representatives with an effectively participating in the questions will be resolved through the opportunity to observe noise monitoring, and is told of the results at labor-management processes already in monitoring, MSHA is improperly the end of the day. These commenters place. expanding the scope of section 103(c) of believe that requiring a miners’ Several commenters were concerned the Mine Act, which addresses representative to observe would be that allowing miners’ representatives to monitoring of ‘‘toxic materials’’ or redundant and result in adversarial observe could place the miners’ ‘‘harmful physical agents.’’ relations between labor and representative in unsafe positions,
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.063 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49591 especially in the case of single representative of the need to come to the commenters, on the other hand, stated occupancy equipment such as a shuttle mine on an off-shift, or to arrive early that requiring five days’ written notice car, scraper, or bulldozer. The Agency at the mine to observe field calibration would be extremely restrictive and does not intend that the exercise of the of instrumentation. Other commenters would reduce the flexibility of the vast right to observe noise monitoring will stated that providing prior notice majority of mine operators to adjust to expose miners or their representatives to compromises integrity and the ability of a changing work environment. unsafe working conditions. The purpose the mine operator to inspect for safety MSHA agrees with these commenters, of observation by the miners’ or conduct health surveys for the benefit and the final rule, like the proposal, representative is to ensure that the of workers. Because miners and their requires prior notice to miners and their miner is operating the equipment under representatives will only be observing representatives but does not specify normal working conditions and that the monitoring and not actually conducting how this notice is to be given. The instrumentation is being used properly. monitoring, prior notice will not Agency considers ‘‘prior notice’’ under Thus, in those cases where mobile, compromise the integrity of the the final rule to be a reasonable amount single-occupancy equipment is monitoring. Nonetheless, MSHA of time which is practical under the involved, the miners’ representative can emphasizes that the exercise of the right circumstances to allow miners and their observe the monitoring from a safe to observe monitoring should not representatives to exercise the distance. interfere with the monitoring process. opportunity to observe monitoring. Several commenters questioned Several commenters stated that Under the final rule, the operator may whether the number of observers or the requiring mine operators to provide use any method of notification— observation time would be limited. The prior notification of monitoring would including oral, written, and posted final rule does not limit the number of interfere with spot area sampling. notification—which effectively informs miners, their representatives, or time Another commenter stated that miners and their representatives of spent observing monitoring. Therefore, providing prior notice is not always intended monitoring. For example, under the final rule miners have the possible, such as during the some mine operators may use informal option of observing monitoring for the introduction of a new piece of talks as an effective means of keeping full shift, part of the shift, or not at all. equipment or machinery. Several miners informed on a day-to-day basis. MSHA considers field calibration of commenters also questioned whether Other mine operators may elect to the instruments, and any recording of MSHA intended to require mine inform miners in writing to avoid results to be included within the right operators to give prior notice of all confusion and to demonstrate of observation. MSHA believes that operator monitoring and whether compliance. Finally, some mine miners who observe operator’s miners and their representatives should operators may elect posting because monitoring procedures gain insight into have the opportunity to observe any and miners know where the bulletin board the nature and extent of the noise all such monitoring. These commenters is located and because posting is an hazard, and are more likely to become suggested that the final rule require that more involved in the hearing the mine operator provide notice and accepted and well established method conservation program. This involvement the opportunity for observation only of of disseminating information at mine should increase the motivation for a reasonably representative number of sites. Any of these methods would be an proper use of hearing protectors, thereby such monitoring events. effective means of providing the increasing the effectiveness of the The final rule does not require prior notification required under the final program and allowing them to share notice of such activities as spot area rule. Therefore, this provision is their knowledge with their fellow sampling or measurement of the sound adopted as proposed. miners, thus improving overall health at produced by a new piece of equipment Miner Notification the mine. before the equipment is placed into Paragraph (c) also requires mine service. Under the final rule, mine Paragraph (d) of § 62.110, like operators to give prior notice to affected operators are required to give prior § 62.120(f)(2) of the proposal, requires miners and their representatives of the notice only of monitoring that is notification when a miner’s noise date and time they intend to conduct conducted to determine whether a exposure equals or exceeds the action monitoring. One commenter supported miner’s noise dose equals or exceeds the level or exceeds the permissible the provision as proposed, stating that it action level, or exceeds the permissible exposure level or the dual hearing is an acceptable and reasonable practice. exposure level or the dual hearing protection level. Whenever a miner’s Several commenters stated that protection level. exposure is determined to exceed any of requiring notification of both miners Additionally, paragraph (c) of this the levels established in §§ 62.120, and their representatives of operator section of the final rule, like the 62.130, or 62.140 of this part, based on monitoring would be unduly proposal, does not specify a required exposure evaluations conducted either burdensome, and would not enhance method of notification. One commenter by the mine operator or by MSHA, and health and safety. One commenter supported the provision because of its the miner has not received notification recommended that MSHA adopt flexibility with respect to such of exposure at such level within the OSHA’s provision, which simply notification. Another commenter stated prior 12 months, the mine operator must requires employees or their that for notice to be unambiguous it notify the miner in writing within 15 representatives to be afforded an must be in writing and either mailed or calendar days of the exposure opportunity to observe noise posted on the mine bulletin board. determination and of the corrective measurements. Several commenters also questioned action being taken. The mine operator The Agency concludes that miners what would constitute adequate prior must maintain a copy of any such miner and miners’ representatives need time to notice. For example, one commenter notification, or a list on which the make necessary preparations to exercise supported requiring prior notice but relevant information about that miner’s their right to observe monitoring, and stated that the notice should be given at notification is recorded, for the duration that notification is necessary to achieve least five days in advance so that miners of the affected miner’s exposure at or this goal. Notification may be needed in and their representatives had sufficient above the action level and for at least 6 order to alert the miner and the miners’ time to prepare to observe. Several months thereafter.
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The notification requirement in the for participation in the voluntary fact that administrative delays may final rule is consistent with section audiometric testing program. arise, but balances these delays against 103(c) of the Mine Act, which states in MSHA has also concluded, and the the need for miners to be alerted pertinent part: final rule reflects, that the notification promptly of potentially harmful noise Each operator shall promptly notify any should be in writing. This ensures that exposures, and to be informed of the miner who has been or is being exposed to the miner understands the exposure steps that are being taken to remedy the ** * harmful physical agents * * *at levels determination and the corrective actions situation. which exceed those prescribed by an being taken. The proposal would have required applicable mandatory health or safety Several commenters agreed with the that records of required notification be standard promulgated under section 101 approach taken by the proposal that maintained at the mine site. Several ** *and shall inform the miner who is would make notification unnecessary if commenters requested that the final rule being thus exposed of the corrective action the mine operator had already notified allow the required records to be being taken. the affected miner of the exposure level maintained at a central location, such as Several commenters supported the during the past 12 months. One of the a corporate office, to ease the burden of requirement for written notification and primary objectives of notification, as managing the records of multiple mine requested that MSHA also require explained above, is to ensure that sites. Commenters also stated that they written notification to the miners’ miners are aware of the importance of believed this would make it easier for representative. Other commenters taking the additional precautions to MSHA to review the required records suggested that the required written protect their hearing. If a miner’s noise for these sites. notification also be submitted to MSHA. exposure has not changed, there would As stated in Part III of this preamble, One commenter believed that be no additional benefit to be gained by MSHA agrees with the points made by notification should not be required if all repeated notification. In any case, these commenters, particularly in light miners are enrolled in a hearing annual retraining is required for those of the fact that electronic records are conservation program. A number of miners whose noise exposures continue common in the mining industry, and other commenters questioned the need to equal or exceed the action level. that many or all of a mine’s records may to notify affected miners in writing. Many commenters took issue with the be stored on computer at a centralized Some of these commenters stated that proposed time frame of 15 calendar days location. The final rule therefore does posting the exposure determination for mine operators to notify a miner in not adopt the proposed requirement that results would be sufficient notification writing that the miner’s noise exposure these records be maintained at the mine for the affected miner and any other exceeded any limit prescribed in site, and does not specify a location miners working in the area. Other proposed § 62.120. Most of the where the records must be maintained. commenters believed that the mine commenters believed that the 15-day However, the records must be stored in operator should be able to choose any time frame was too restrictive and a location that will allow the mine method of notification as long as the suggested that this period be extended. operator to produce them for an MSHA miner received the required notice. One Among the reasons given in support for inspector within a relatively short commenter supported the notification this suggestion were delays in obtaining period of time, which in most cases will requirement, and suggested including a exposure reports from consultants and be no longer than one business day. statement concerning the mandatory use employee vacations. Commenters Commenters also presented their of hearing protectors, if appropriate. recommended time frames for views on record retention. Under the The notification provided for in this notification that ranged from 15 to 60 proposal, records of miner notification paragraph is required under section days. A few recommended that the mine would have been required to be retained 103(c) of the Mine Act. In addition, operator be allowed to determine the for the duration of the miner’s exposure MSHA has determined that such appropriate time frame. One above the action level and for 6 months notification is an integral part of the commenter, however, suggested that the thereafter. A few commenters believed a protection afforded to miners whose time allowed for notification be reduced requirement for record retention was noise exposures may be injurious to to 24 hours for exposure determinations unnecessary. Other commenters their hearing. The Agency also believes and 7 days for reporting the mine believed the records should be that in order to ensure that all affected operator’s plan of corrective actions to maintained for longer than 6 months miners are properly notified and reduce the noise exposure. One beyond the duration of exposure. The informed of the additional precautions commenter was opposed to the recommended record retention time necessary to protect their hearing, such notification requirement, because ranged up to 40 years. Several notification must be in writing and must OSHA’s noise standard lacks this commenters believed the exposure be recorded. Noise exposures at or provision. records should be treated as medical above the action level present a MSHA believes that timely records. Another commenter believed significant risk of material impairment notification is an important first step in the exposure records should be retained (as discussed under Part V of this protecting miners from excessive noise for at least the duration of the affected preamble, Material Impairment). Miners exposure. The final rule therefore miner’s employment. must be notified when their noise adopts the proposed requirement that MSHA has concluded, and the final exposures are at or above the action the mine operator notify the miner rule reflects, that it is sufficient for the level because of this risk, and also within 15 calendar days of any noise mine operator to retain exposure because such exposures trigger specific exposure that equals or exceeds the notification records for the duration of corrective actions by the mine operator action level or exceeds the permissible the miner’s exposure at or above the under the final rule—training miners, exposure level or the dual hearing action level and for at least 6 months providing miners with hearing protection level. The 15-day time frame thereafter. The retention period protectors, and offering miners is adopted from the proposal based on provided for by the final rule calls for audiometric testing. Notification alerts MSHA’s determination that 15 days records to be retained for a relatively miners of the need to conscientiously affords the mine operator sufficient time short period of time after cessation of wear their hearing protectors and may to provide this notification. This exposure at or above the action level, also provide some additional incentive determination takes into account the minimizing the recordkeeping burden
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.067 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49593 on mine operators. The extended record action level, provide hearing protection MSHA to be consistent with the retention periods recommended by to such miner, and enroll the miner in requirements of OSHA’s noise standard. some commenters would be appropriate a hearing conservation program that In particular, the commenters supported if the records were to be used for included audiometric testing. the proposed requirement for taking epidemiological purposes. However, the Under the final rule, the mine initial protective action at the level of 85 records required to be maintained under operator is required to enroll a miner in dBA, and the threshold of 80 dBA for this section of the final rule are not the a hearing conservation program that integrating all sound levels when type of dose determinations that would complies with § 62.150, which computing the action level. These be suitable for epidemiological analysis. consolidates the elements of a hearing commenters stated that the 85-dBA Additionally, unlike the effects of conservation program into a single action level and 80-dBA threshold were exposure to carcinogens, hearing loss section. These elements include a more protective of miners and based on due to noise exposure manifests itself system of monitoring that complies with the best available scientific information, shortly after the exposure. The effects of § 62.110; the use of hearing protectors and were also compatible with OSHA’s exposure to carcinogens may not be under § 62.160; audiometric testing noise standard. seen until years after exposure. under §§ 62.170 through 62.175; However, a number of commenters Requiring the retention of noise training under § 62.180; and were opposed to the proposed exposure records for many years recordkeeping under § 62.190. Although establishment of an action level. Several therefore serves no purpose. The final the language of the final rule differs commenters questioned the appropriate rule therefore does not adopt this from that of the proposal, the action level, stating that the level should comment. requirements are essentially the same. be set at a TWA8 of 90 dBA. Some of This reorganization of the rule was these commenters believed that noise Warning Signs made in response to commenters who control technology for complying with The proposed rule did not include recommended that the final rule take a an action level of a TWA8 of 85 dBA is any requirements for the posting of more traditional approach to the hearing not available, and that an allowance for warning signs at mines to alert miners conservation program. This issue is the use of hearing protectors should be of noise hazards that may be present. In discussed in greater detail under made when determining compliance the preamble to the proposed rule, § 62.150 of the preamble. with the action level. MSHA acknowledged the possible value The final rule requires that the mine MSHA’s determination that it is of warning signs but concluded that the operator enroll a miner in a hearing necessary to establish an action level in constantly changing mining conservation program if, during any the final rule is based on several environment presents significant work shift, the miner’s noise exposure considerations. The first and most obstacles to effective posting. MSHA equals or exceeds a TWA8 of 85 dBA or, important of these factors is that therefore determined that the miner equivalently, a dose of 50%. Like the MSHA’s review of the scientific training requirements of the final rule proposal, the final rule requires that all literature and Agency risk data, coupled will ensure that miners are sufficiently sound levels from 80 dBA to at least 130 with the comments submitted under informed of the noise hazards to which dBA be integrated into the noise this rulemaking, indicates that there is they may be exposed. exposure determination for the action a significant risk of material impairment Although MSHA did not solicit level. This integration range to miners from a lifetime of exposure to comments in the proposed preamble on requirement is identical to the one in noise at a TWA8 of 85 dBA, as discussed warning signs, several commenters did OSHA’s noise standard. Sound levels in the preamble section on material express their opinions on this issue. below the 80-dBA threshold are not impairment. For that reason, miners Some commenters believed the warning integrated into the noise exposure need to be protected from noise signs should be required, other measurement. It should be noted that a exposures at or above this level. commenters believed posting signs is noise dose determination for the However, as explained in greater detail appropriate only where hearing permissible exposure level requires the under the preamble discussion of the protectors must be worn. Several other use of a 90-dBA threshold. In practice, permissible exposure level, the Agency commenters believed that posted when a noise exposure measurement is has determined that it is not feasible at warning signs were not effective performed, either two separate noise this time for the mining industry to because they were ignored. dosimeters (one set for an 80-dBA comply with a lower permissible MSHA continues to conclude that the threshold for the action level, and one exposure level. The issue of risk to posting of warning signs should be set for a 90-dBA threshold for the miners is discussed in greater detail optional and is best left to the discretion permissible exposure level), or a single under the material impairment section of the operator. As stated in the dosimeter with dual threshold of this preamble. proposed preamble, MSHA expects that capabilities would be required. MSHA has nonetheless concluded many mine operators will voluntarily The final rule clarifies that the mine that it is necessary to provide miners post signs to indicate areas of the mine operator must enroll a miner in a with protection at this level in order to where hearing protectors should be hearing conservation program if during reduce instances of new hearing loss worn. any work shift the miner’s exposure and to prevent the progression of equals or exceeds the action level. The existing hearing loss. Agency data reveal Section 62.120 Action Level proposal would have provided that the that a miner’s risk of developing a Like the proposal, § 62.120 of the final mine operator take action if the miner’s significant hearing loss drops by rule requires mine operators to take exposure exceeded the action level. A approximately half under the new certain actions when a miner’s noise number of commenters recommended action level requirements of the final exposure equals or exceeds an 8-hour this clarification to ensure that the final rule. time-weighted average of 85 dBA during rule was consistent with OSHA’s noise As stated above, the hearing any work shift. Under proposed standard. The final rule has been conservation program in which miners § 62.120(b)(1) and (b)(2), mine operators revised accordingly. are enrolled under the final rule must would have been required to provide Many commenters supported the comply with § 62.150, and must address training to a miner exposed above the concept of an action level but wanted the use of hearing protectors, provide
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.068 pfrm08 PsN: 13SER2 49594 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations miners with audiometric testing, and miners to conscientious compliance The requirements in proposed provide effective monitoring of their with the requirements of the program. § 62.120(b)(2) that the mine operator noise exposures. Although some MSHA agrees with the commenters provide hearing protectors to the commenters disputed the effectiveness who stated that noise control technology affected miners and ensure their use, if of hearing conservation programs, may not always be available to reduce it would take more than 6 months to MSHA has reviewed the research the noise exposure below the action conduct the baseline audiogram or if a concerning such programs, especially level. The lack of available technology miner is determined to have incurred a the OSHA hearing conservation was one of the bases for MSHA’s standard threshold shift, have been program, and has determined that determination that a permissible adopted in § 62.160(c)(1) and (c)(2) of hearing conservation programs are exposure level of a TWA8 of 85 dBA is the final rule. effective in protecting workers. not feasible for the mining industry at Additionally, as indicated under Under the final rule, a miner who is this time. Consistent with that § 62.160 of the preamble, proposed exposed to noise at or above the action determination, the final rule does not § 62.120(b)(3), which would have level must, as part of the enrollment in require that noise controls be required that the mine operator provide a hearing conservation program, receive implemented to reduce miners’ noise any miner who has been exposed to specialized training that addresses the exposures to the action level. Instead, noise above the action level with hazards of noise and protective mine operators are required to enroll hearing protectors upon request, is not methods. Specific topics that must be miners in a hearing conservation specifically adopted in the final rule. addressed by this training include the program if the miners’ exposures Because the final rule requires that such effects of noise on hearing, the purpose reaches the action level. a miner be enrolled in a hearing and value of wearing hearing protectors, Some commenters stated that the conservation program, which must and the mine operator’s and miner’s proposed action level requirement include the provision of hearing respective tasks in maintaining noise would create unnecessary paperwork protectors under § 62.160 of the final controls. and cost burdens for mine operators. rule, the adoption of the proposed Additionally, a miner who is enrolled MSHA has evaluated all of the requirement is unnecessary. in a hearing conservation program must paperwork provisions in the final rule Section 62.130 Permissible Exposure be provided with properly fitted hearing and has chosen the alternatives which Level (PEL) protectors and receive training on their impose minimal paperwork burdens on Section 62.130(a) of the final rule use. Although MSHA has concluded the industry. Although the final rule adopts proposed § 62.130(c) and that the difficulty in determining the does eliminate some existing paperwork establishes a permissible exposure level noise reduction provided by a given requirements, MSHA believes that the of an 8-hour time-weighted average hearing protector makes it inappropriate remaining paperwork provisions in the (TWA8) of 90 dBA, which represents no to adjust a dose determination on that final rule are necessary for improving substantive change from the existing basis, hearing protectors can serve as an protection for miners. standards. Under the final rule, a TWA8 effective means of protecting miners Many commenters supported the of 90 dBA is equivalent to a dose of from the hazards of excessive noise. proposed integration of all sound levels 100%. The final rule provides that no Miners enrolled in a hearing from 80 dBA to at least 130 dBA when miner be exposed during any work shift conservation program must also be computing the action level. They stated to noise that exceeds the permissible offered annual audiograms at no cost. that this was consistent with OSHA’s exposure level. Paragraph (a) also Annual audiometric testing will enable noise standard, would be more provides that if during any work shift a mine operators and miners to take protective of miners, and would allow miner’s noise exposure exceeds the protective measures in response to resources to be directed at the worst permissible exposure level, the mine identified early hearing loss, and enable exposures. Other commenters opposed operator must use all feasible the prevention of further deterioration the proposed integration range of 80 engineering and administrative controls of hearing. dBA to 130 dBA, stating that it would to reduce the miner’s noise exposure to As discussed in the preamble to the unnecessarily inflate the calculated the permissible level, and enroll the proposed rule, a number of studies have noise dose and dramatically increase the miner in a hearing conservation addressed the effectiveness of hearing time-weighted average daily exposure program. conservation programs in preventing dose. Based on a review of the entire Under the current metal and nonmetal hearing loss. Many of the studies record, the final rule reflects the noise standard, feasible engineering or indicate that a hearing conservation proposed integration range of 80 dBA to administrative controls are required to program can be effective in reducing at least 130 dBA as appropriate for be used when a miner’s noise exposure and controlling noise-induced hearing protecting miners from experiencing exceeds the permissible exposure level. loss, but only if management and additional hearing impairment. The noise reduction provided by a employees strictly follow the program MSHA notes that the requirements in hearing protector is not considered in requirements. § 62.110(b) of the final rule, which determining a miner’s exposure at metal MSHA has therefore concluded that apply to miners’ dose determinations, and nonmetal mines. Under the current enrollment in a hearing conservation must be complied with when a noise coal noise standard, feasible engineering program for miners whose noise exposure assessment is conducted for and/or administrative controls are exposure equals or exceeds the action the action level. This means that, in required to be used when a miner’s level can protect miners from addition to integrating all sound levels exposure exceeds the permissible occupational hearing loss. Consistent over the appropriate range, the exposure level. with this determination, the final rule determination must be made without Unlike the metal and nonmetal requires these miners to be enrolled in adjustment for hearing protectors; must standard, however, the coal standard such a program. However, as stated reflect the miner’s full work shift; must states that required controls may above, the effectiveness of the program use a 90-dB criterion level and a 5-dB include hearing protectors in specific in protecting miners depends on the exchange rate; and use the A-weighting circumstances. Credit is also given at commitment of mine operators and and slow response instrument settings. coal mines for the noise reduction value
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.071 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49595 of hearing protectors in determining a they use, as long as mine operators use A number of commenters favored a miner’s noise exposure. all feasible controls necessary to bring a permissible exposure level of a TWA8 of The final rule specifies that mine miner’s exposure to within the 85 dBA, stating that because a operators must integrate sound levels permissible exposure level. significant risk of impairment occurs at from 90 dBA to at least 140 dBA. MSHA Section 62.130(a) of the final rule also this level, miners need greater proposed integrating sound levels requires that if a miner’s noise exposure protection. MSHA gave serious between 80 dBA and 130 dBA into the exceeds the permissible exposure level, consideration to establishing a lower permissible exposure level, but stated in the mine operator must enroll the miner permissible exposure level, including a the proposed preamble that MSHA was in a hearing conservation program that reduced exchange rate, based on its not recommending a lower permissible complies with § 62.150 of the final rule. determination that there is a significant exposure level, since it would be Implementation of a hearing risk to miners of a material impairment infeasible for the mining industry. conservation program is a new of health when noise exposures equal or However, in evaluating and reviewing requirement for metal and nonmetal exceed a TWA8 of 85 dBA. MSHA has the rulemaking record, MSHA has mine operators and for some coal mine concluded, however, that it is infeasible concluded that lowering the threshold operators. at this time for the mining industry to of sound levels integrated into the The final rule adopts the proposed achieve a more protective level by using permissible exposure level requirement for mine operators who use engineering and administrative controls. determination for purposes of administrative controls. Those mine Therefore, under the final rule, MSHA measuring a miner’s noise exposure operators must now post procedures for continues to require a permissible would in fact result in a lower such controls on the mine bulletin exposure level of a TWA8 of 90 dBA, but permissible exposure level, something board and provide a copy of the miner protection is increased from that that the Agency did not intend. The procedures to each affected miner. provided under existing MSHA noise final provision is therefore less Paragraph (b) of § 62.130 of the final standards by requiring that mine restrictive than the proposed provision rule, like the proposal, provides that if operators take protective measures at an would have been, but is consistent with feasible engineering and administrative action level of a TWA8 of 85 dBA. MSHA’s findings on feasibility. controls fail to reduce a miner’s Some commenters believe that MSHA The final rule requires that mine exposure to the permissible exposure did not adequately justify that a operators use all feasible engineering level, the mine operator must continue permissible exposure level of a TWA8 of and administrative noise controls to to use all engineering and 85 dBA was technologically and bring miners’ noise exposures within administrative controls to reduce the economically infeasible. Also, one permissible levels. Mine operators must miner’s exposure to as low a level as is commenter objected to considering provide miners with hearing protectors feasible. economic infeasibility in the rationale and ensure that the protectors are The proposed rule would have also for not reducing the permissible properly used if engineering and required that the mine operator ensure exposure level to a TWA8 of 85 dBA. administrative controls fail to reduce that a miner exposed above the Section 101(a)(6)(A) of the Mine Act exposure to the permissible exposure permissible exposure level submit to the directs that the Secretary’s rulemaking level. audiometric testing provided as part of authority be exercised within the Unlike the enforcement policy at the hearing conservation program. The boundaries of feasibility, and, as metal and nonmetal mines, current coal final rule, however, does not adopt this discussed in the preamble to the enforcement policy allows mine provision. Further discussion of this proposal, MSHA considered both inspectors to subtract the estimated issue is provided under § 62.170, technological capabilities and the noise reduction provided by hearing addressing audiometric testing. economic impact of a lower permissible protectors when determining a miner’s Section 62.130(c) of the final rule exposure level. MSHA made a noise exposure. When a coal mine adopts the proposed provision that at no preliminary determination, set forth in operator does receive a citation for a time must a miner be exposed to sound the preamble to the proposal, that a miner’s exposure exceeding the levels exceeding 115 dBA, and also lower permissible exposure level was permissible exposure level, the operator clarifies that the sound level must be not feasible. MSHA also requested that must promptly institute engineering or determined without adjustment for the commenters submit relevant additional administrative controls, or both. Within use of hearing protectors. data on this issue but did not receive 60 days of receipt of the citation, the Finally, proposed § 62.120(d), which adequate supporting data in response to mine operator must submit to MSHA a addressed the dual hearing protection this request. plan for the administration of a level, has been moved to § 62.140 of the Regarding the feasibility of a TWA8 of continuing, effective hearing final rule. 85 dBA, MSHA has found that a typical conservation program, which includes Section 62.130 of the final rule mine operator will not be able to provisions for reducing environmental establishes a permissible exposure level develop and install engineering controls sound levels to achieve compliance, of a TWA8 of 90 dBA, which represents at this time which will meet a providing hearing protectors, and pre- no substantive change from existing permissible exposure level lower than a employment and periodic audiograms. MSHA standards. The permissible TWA8 of 90 dBA. The Agency’s finding The final rule now requires that mine exposure level is the maximum time- is based on the large number of mines operators in both the coal sector and weighted average sound level to which which would require engineering and metal and nonmetal sectors use all a miner may be exposed. The exposure administrative controls to reduce feasible engineering and administrative needed to reach the permissible current exposures and on an evaluation controls to reduce a miner’s noise exposure level varies by sound level and of noise control technology under actual exposure to the permissible exposure duration. For example, a miner’s mining conditions, including retrofitting level. The final rule does not place exposure would reach the permissible equipment, and the cost of preference on the use of engineering exposure level if the miner is exposed implementing such controls. As stated controls over administrative controls. to a sound level of 90 dBA for 8 hours in the preamble to the proposed rule, MSHA intends for mine operators to or to a sound level of 95 dBA for only MSHA conducted a survey of noise have a choice of which type of control 4 hours. exposures in the mining industry to
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.072 pfrm08 PsN: 13SER2 49596 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations assess the capability of the industry to engineering controls in coal mines Another commenter suggested that a comply with a permissible exposure under the current regulations. Thus, long phase-in period, such as 10 years, level lower than the current TWA8 of 90 unlike the metal and nonmetal mining be adopted for a permissible exposure dBA through the use of engineering and industry, the coal mining industry has level of a TWA8 of 85 dBA. In administrative controls. The survey is not exhausted the use of feasible considering the technological and referenced as the ‘‘dual-threshold engineering and administrative controls economic impact of a new standard, survey’’ in the section that addresses to reduce noise exposures to within the MSHA must make a reasonable material impairment in this preamble. permissible exposure level of a TWA8 of prediction, based on the best available Exposure data collected by MSHA 90 dBA. However, significant costs evidence, as to whether the mining indicated that with a permissible would be incurred by the entire mining industry can generally comply with the exposure level of a TWA8 of 85 dBA and industry if the permissible exposure rule within an allotted period of time. an 80-dBA threshold, over two-thirds of level were to be reduced to a TWA8 of MSHA seriously considered establishing the metal and nonmetal mining industry 85 dBA and an 80-dBA threshold. a permissible exposure level of a TWA8 and over three-quarters of the coal MSHA’s ‘‘dual-threshold survey’’ of 85 dBA in conjunction with an mining industry would need to use shows that a significant percentage of all extended phase-in schedule for engineering and administrative controls mines, which would be out of compliance. However, the Agency could to reduce current exposures (see Tables compliance if a lower permissible not project, with any reasonable 11 and 12 in Part V of this preamble). exposure level were adopted, would certainty, when the mining industry A typical mine operator would not be incur costs. Engineering controls that would be capable of developing and able to develop and install engineering are needed to reduce exposure levels to installing the necessary control controls at this time which would result technology to meet such a permissible a TWA8 of 85 dBA are more costly than in compliance with a permissible exposure level. In the preamble to the those which reduce exposure to a TWA8 exposure level lower than a TWA8 of 90 of 90 dBA. MSHA’s analysis indicates proposal, MSHA made no assumptions dBA. Although the discussion of that where it is available, retrofitting about the development of new feasibility in this preamble references equipment to achieve a permissible technologies to further assist mine control rooms and booths and operators in controlling noise. The exposure level of a TWA8 of 85 dBA can acoustically treated cabs as being Agency requested commenters to cost $15,000 or more per piece of capable of reducing exposures to below provide information but received none. equipment. Remote control in 85 dBA, MSHA has found that, for the Although enforcement of the final rule conjunction with a fully-treated, most part, sound levels for most mining requires that individual mine operators environmentally-controlled operator’s equipment cannot be reduced to that only use those controls which are booth can cost $10,000 or more extent using engineering controls. This feasible for the particular mine operator, depending on the size of the booth and includes consideration of retrofit noise MSHA is unable to demonstrate a the extent of technology needed to run control technology to achieve 85 dBA or reasonable probability that the mining the process or equipment remotely. less which is not available for the industry as a whole would be able to MSHA has estimated that a permissible majority of mining equipment without comply, even with a long phase-in major redesign of the equipment. The exposure level of a TWA8 of 85 dBA period. Agency’s finding is based, in part, on with a 3 dB exchange rate would cost Several commenters wanted MSHA to the evaluation of newly developed noise over $54 million annually just to retrofit adjust the permissible exposure level of equipment. However, retrofitting controls under actual mining conditions a TWA8 of 90 dBA for those miners described in ‘‘Summary of Noise existing equipment alone would not working extended work shifts, and one Controls for Mining Machinery’’ enable most mines to achieve commenter believed that it was (Marraccini et al., 1986). Therefore, the compliance with a permissible exposure important to include extended work Agency has concluded that a typical level of 85 dBA as a TWA8. For some shifts in the definition of the mine operator will not be able to of these mines, capital equipment permissible exposure level. The final develop and install engineering controls would need to be replaced by quieter rule requires mine operators to at this time that will result in equipment capable of meeting the lower determine a miner’s noise exposure for compliance with a permissible exposure 85 dBA level, but the cost would be the full work shift, regardless of length level lower than a TWA8 of 90 dBA. enormous. For example, where new of time the miner works on the shift. In addition, the Agency has found equipment exists, depending on its size, MSHA acknowledges that extended that, where available, the cost of costs range from approximately work shifts are becoming a more implementing controls would be $260,000 to $360,000 for single boom common practice in the mining industry prohibitively expensive, based on the drills with fully treated operator cabs, to and intends for miners working on these large percentage of mines that would be approximately $2,000,000 for a 240 ton shifts to receive the full protection of out of compliance if a lower permissible haul truck with a fully treated operator the final rule. Sampling for a full shift exposure level were to be adopted. As cab. However, as previously noted, for is consistent with the OSHA standard as reflected under the preamble discussion many types of capital equipment, no well as current noise regulations for of feasibility, MSHA has determined compliant replacement equipment both coal and metal and nonmetal that retention of the existing permissible currently exists. Because most mines mines. exposure level and threshold under the could not fully meet a lower permissible Section 62.130(a) of the final rule final rule would not result in any exposure level using currently available differs from the proposal in that a incremental costs for engineering technology, the Agency has determined miner’s exposure determination for controls for the metal and nonmetal that a lower permissible exposure level comparison to the permissible exposure sector, but would result in costs of $1.79 would not be feasible at this time. level requires the integration of all million for engineering controls for the Accordingly, the Agency is adopting the sound levels from 90 to at least 140 coal sector. Costs would be incurred existing permissible exposure level of a dBA. The proposal would have required only by the coal mining sector under the TWA8 of 90 dBA, but is also requiring integration of sound levels from 80 to at final rule, because hearing protectors hearing conservation measures when least 130 dBA. Several commenters to have generally been substituted for the exposure reaches a TWA8 of 85 dBA. the proposed standard brought to
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MSHA’s attention that the proposed most consistent and reliable protection exposure levels border on 100 dBA. range of sound integration would result to miners. MSHA’s rulemaking record indicates in a lower permissible exposure level Administrative controls reduce that a number of professional for the mining industry, an unintended exposure by limiting the amount of time organizations have recommended that result of the rule, discussed earlier. that a miner is exposed to noise through OSHA rescind this policy and rely on Moreover, the final rule’s adoption of such actions as rotation of miners to engineering and administrative controls. the proposed 80-dBA threshold for areas with lower sound levels, As explained in the preamble determining whether miners’ exposures rescheduling of tasks, and modifying discussion of § 62.110 of the final rule, equal or exceed the action level ensures work activities. MSHA believes that MSHA has decided to adopt the that miners are afforded protection at or administrative controls can be as approach of the proposal, which is not above an exposure of a TWA8 of 85 effective as engineering controls and are to accept personal hearing protectors in dBA. typically less costly than engineering lieu of engineering or administrative Section 62.130(a) also requires that controls, and MSHA anticipates growing controls. The Agency’s position is when a miner’s noise exposure exceeds interest in implementation of supported by its own research on noise the permissible exposure level, the mine administrative controls by the mining reduction values of hearing protectors operator must use all feasible community. MSHA will make guidance under actual mining conditions. engineering and administrative controls materials pertaining to administrative Additionally, this position is supported to reduce a miner’s exposure to the controls available to the mining by studies referenced in the preamble permissible exposure level before community before the effective date of discussion of § 62.110 that address noise relying on hearing protectors. In the final rule. dose determination without adjustment addition, mine operators must establish In the proposed preamble, MSHA had for the use of hearing protectors. a hearing conservation program for requested comment from the mining Moreover, promulgating a rule which is affected miners. community on the primacy of consistent with OSHA policy would engineering and administrative controls. The final rule does not place result in a diminution of safety to The Agency received a number of miners in the metal and nonmetal preference on the use of engineering comments from the public in support of sectors of the mining industry. Section controls over administrative controls to the primacy of engineering and 101(a)(9) of the Mine Act requires that protect miners exposed above the administrative controls, as well as a no new standard reduce the protection permissible exposure level. All feasible number of comments in support of afforded miners by an existing standard. controls, of both types if necessary, equating personal hearing protectors For metal and nonmetal mines, MSHA must be implemented to reduce noise with controls. These comments are currently requires the use of engineering exposure to the permissible exposure discussed below. or administrative controls to the extent level, or to the lowest feasible level if Commenters who favored permitting feasible to reduce exposures to the the permissible exposure level cannot the use of hearing protectors to meet the permissible exposure level. Under be achieved. In response to commenters permissible exposure level asserted that existing standards if the permissible who questioned which controls mine hearing protectors adequately protect exposure level cannot be achieved, operators must use, MSHA emphasizes the hearing of miners, are more cost hearing protectors must be made that mine operators have a choice of effective, and provide greater noise available to miners. If OSHA’s policy which control method they will use reduction than engineering controls. In were to be adopted into the final rule, first. Under the final rule, they may use addition, some commenters believe that the benefits of using feasible engineering controls, administrative personal hearing protectors used in engineering and administrative controls controls, or both; but if administrative conjunction with a hearing conservation would be lost. In addition, OSHA’s controls are utilized, a copy of such program are as effective as engineering noise enforcement policy is based on a procedures must be posted and given to and administrative controls. judicial interpretation of ‘‘feasible’’ as each affected miner. The final rule Other commenters wanted MSHA to used in the context of OSHA’s noise affords mine operators flexibility in permit the use of hearing protectors in standard which is an established federal selecting the most appropriate control lieu of engineering and administrative standard adopted without rulemaking at method applicable under the controls, provided that the noise the OSH Act’s inception under Section circumstances. exposure did not exceed a TWA8 of 100 6(a) of the OSH Act rather than the Although the final rule does not give dBA. These commenters stressed that product of a regular OSHA rulemaking preference to engineering controls over this is allowed by OSHA’s current under Section 6(b) of the OSH Act. administrative controls, engineering enforcement policy. Under the Mine Act, one of the roles controls provide a permanent method of The OSHA noise standard at 29 CFR of the National Institute for modifying the noise source, the noise § 1910.95 requires employers to use Occupational Safety and Health path, or the environment of the miner engineering and administrative controls. (NIOSH) is to advise MSHA in exposed to the noise, thereby decreasing Under the OSHA noise standard, establishing mandatory health and the miner’s exposure to harmful sound hearing protectors may be used only to safety standards. While MSHA is aware levels. Engineering controls do not supplement controls. Current OSHA that NIOSH is seeking to develop an depend upon individual performance or enforcement policy allows employers to approach that would more accurately human intervention to function. rely on personal protective equipment adjust the noise reduction ratings of Moreover, the effectiveness of and a hearing conservation program hearing protectors in actual workplace engineering controls can be readily rather than engineering and/or use, the prospects for this remain determined using standardized administrative controls when hearing uncertain. In addition, adjustment acoustical measurement and assessment protectors will effectively attenuate the methods that are appropriate for general procedures. In addition, routine noise to which the employee is exposed industry may not be appropriate in the maintenance ensures the long-term to acceptable levels as specified in mining environment. As explained in effectiveness of engineering controls. Tables G–16 or G–16a of the standard. the preamble discussion of § 62.110 of Thus, MSHA has concluded that the use Furthermore, hearing protectors may not the final rule, MSHA has found that of engineering controls provides the reliably be used when employee hearing protectors provide much less
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.075 pfrm08 PsN: 13SER2 49598 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations noise reduction under actual mining hearing protectors should have reduced application, such as in the final rule, conditions than was measured in the the noise by at least 13 dBA. They appropriately informs miners of critical laboratory. In many instances, noise concluded that reliance on hearing measures to protect their hearing. reduction was minimal and highly protectors alone is not sufficient to Moreover, commenters are encouraged variable, indicating that hearing protect the hearing sensitivity of the to review the summary of the Regulatory protector effectiveness cannot be workers. Economic Analysis. reliably predicted under actual use Although many commenters may Most commenters requested that conditions. prefer to use hearing protectors in lieu MSHA clarify the meaning of the term During the rulemaking process, of engineering or administrative ‘‘feasible.’’ Many commenters MSHA requested that NIOSH provide its controls to protect miners from noise specifically requested that MSHA opinion on the hierarchy of noise overexposures, MSHA has concluded include economic considerations in the controls. NIOSH stated in its December that the scientific evidence does not definition of feasibility. What constitute 16, 1994, response (NIOSH, 1994) that support this position, and that the ‘‘feasible’’ engineering and there are three elements in the hierarchy approach taken in the final rule best administrative noise controls is of effective noise controls: protects miners from further noise- discussed in Part VI of this preamble. As (1) Preventing or containing induced hearing loss. part of that discussion, MSHA cites workplace noise at its source; A few commenters were concerned applicable case law, which specifically (2) Removing the noise by modifying that the miner would suffer a loss of pay provides that a consideration of the pathway between the worker and if administrative controls were feasibility must include both the noise source; and instituted and the miner was rotated to technological and economic factors. (3) Controlling the worker’s exposure a lower-paying job. However, the Mine Some commenters suggested that by providing a barrier between the Act does not authorize the Secretary to ‘‘feasible’’ engineering controls need to worker and the noise source. require pay retention for miners rotated be capable of reducing a miner’s noise NIOSH further stated that noise for the purpose of reducing exposure to exposure to the permissible exposure controls must provide reliable, a harmful physical agent, and the final level rather than to the lowest level consistent, and adequate levels of rule does not adopt that comment. achievable for the control. Others protection for each individual worker Paragraph (a) of § 62.130 of the final suggested that a control should produce throughout the life span of the controls, rule also adopts the requirement of at least a 3-dBA noise reduction before minimize dependence on human proposed § 62.120(c)(1) that mine that control is considered ‘‘feasible,’’ intervention, consider all routes of entry operators post on the mine bulletin which corresponds with MSHA’s (bone and air conduction), and not board the procedures for the current policy. The applicable case law exacerbate existing health or safety administrative controls in effect at the on this issue provides that an problems or create additional problems mine and provide all affected miners engineering control may be feasible of its own. with a copy. MSHA believes that miners even though it fails to reduce exposure The conclusions of a report published must be specifically notified of the to the permissible level set by the by the Office of Technology Assessment administrative controls being used and standard, as long as there is a significant in 1985, entitled ‘‘Preventing Illness and actively follow them to achieve effective reduction in exposure. As stated in the Injury in the Workplace,’’ also support results. Posting informs miners of proposed preamble and reiterated in the MSHA’s position. This report found that critical work practices necessary for discussion of feasibility in this health professionals rank engineering reducing their noise exposures, preamble, MSHA considers a significant controls as the priority means of especially when miners are temporarily noise reduction to be a 3-dBA reduction controlling exposure, followed by assigned to a different job. Moreover, in the miner’s noise exposure. administrative controls, with personal this requirement is consistent with Several commenters were concerned protective equipment as a last resort. section 109 of the Mine Act, which about the development and availability In addition, Nilsson et al. (1977) requires a mine operator to have a of engineering controls, including studied hearing loss in shipbuilding bulletin board at the mine office or in retrofit packages in the marketplace. workers. The workers were divided into an obvious place near a mine entrance Engineering noise controls, including two groups. The first group was exposed for posting of certain documents, retrofit equipment, are currently to sound levels of 94 dBA, with 95% of including notices required by MSHA available for many types of mining the workers using hearing protectors. regulations. machinery, and many manufacturers The second group was exposed to sound A number of commenters objected to sell noise control packages as options. levels of 88 dBA, with 90% of workers a requirement for written notification of Furthermore, mining equipment wearing hearing protectors. Both groups miners of the administrative controls in manufacturers are diligently developing were subjected to impulse noise up to use at the mine. Some of these new engineering controls to reduce 135 dB. commenters were of the opinion that exposure to noise. The preamble Despite the fact that the vast majority written notification may not be the best discussion on feasibility includes a list of the workers in both groups wore method for alerting miners of of available controls for commonly used hearing protectors, cases of noise- administrative control procedures, since mining equipment. Suggestions are also induced hearing loss were common. As these procedures may need to be revised included in that section for retrofitting exposure durations increased, the on a daily basis. Some commenters existing mining equipment. MSHA is amount of noise-induced hearing loss suggested that MSHA accept informal also available to assist mine operators increased, so workers exposed to sound workplace talks and safety meetings as with obtaining retrofit packages and at 94 dBA exhibited more hearing loss compliance with the written notification other necessary controls for reducing than those exposed to 88 dBA. Slightly provision, which they believed would noise sources. more than fifty-eight percent of all of the be burdensome for mine operators. Several commenters questioned workers had some degree of hearing MSHA has reviewed alternative whether the assumption that impairment, only 1.8% of which was methods for compliance under this engineering controls currently feasible caused by factors other than noise. provision and has concluded that a in metal and nonmetal mines could be According to the researchers, the notification provision with a narrow adapted for use in coal mines. In fact,
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MSHA’s experience has been that many miner’s exposure to the permissible maximum exposure. A number of of the engineering noise controls exposure level, the mine operator must commenters, however, believed that the developed for machinery used in metal continue to use the controls to reduce proposed prohibition of noise exposure and nonmetal mines could be easily the miner’s exposure to as low a level above 115 dBA would be too restrictive used on the same types of machinery in as is feasible. and unrealistic for the mining industry. coal mining, and vice versa. Section 62.130(c) of the final rule Some of these commenters suggested A few commenters requested that adopts proposed § 62.120(e) and that occasional exposures above this MSHA continue to ‘‘grandfather’’ older provides that at no time must a miner level are unavoidable when performing equipment, as the Agency does at metal be exposed to sound levels exceeding certain job tasks and that the level and nonmetal mines. Current metal and 115 dBA. Some commenters found the should include a specified allowable nonmetal enforcement policy allows a proposal somewhat confusing, time limit for these exposures, ranging mine operator, upon written request to questioning whether there is a complete from 5 to 15 minutes. MSHA is not the District Manager, up to 12 months prohibition against exposure to noise persuaded by these commenters’ to retire a piece of machinery once it has above 115 dBA or whether, under concerns. In fact, the 115 dBA limit has been identified as the source of a noise proposed Table 62–1 regarding been in effect at metal and nonmetal overexposure. reference durations, the rule permits a mines for a number of years. Further, This comment has not been adopted period of exposure to noise above this the potential damage to miners’ hearing in the final rule. Protection of miners level that is incorporated into a miner’s when exposed to sound at such levels from the harmful effects of noise must dose determination. MSHA intends the is so great that it is not unreasonable to be the first consideration. The final rule requirement of this paragraph to be expect mine operators to take extra steps does not take effect until 12 months applied as has the existing prohibition to prevent miners’ exposures. after the date of publication, which in metal and nonmetal regulations that It must be emphasized that this provides all mine operators with no miner must be exposed to non- provision prohibits exposures above 115 adequate time to retire older, noisy impulsive sound levels exceeding 115 dBA for any duration, not as a time- equipment. After the final rule takes dBA. A clarifying notation has been weighted average. This means that Table effect no exceptions will be allowed for added to Table 62–1 that at no time 62–1, which includes reference equipment that may be nearing the end must any excursion exceed 115 dBA. To durations of noise exposures at various of its useful life. avoid confusion, the term ‘‘ceiling sound levels, should not be read as One commenter stated that the final level,’’ which was used in the proposal, allowing excursions above 115 dBA, rule should not be technology-forcing. has not been adopted in the final rule. even though the average over a quarter However, Congress intended that MSHA MSHA notes that OSHA’s noise of an hour would not exceed 115 dBA. health standards advance technology in standard does not use the term ‘‘ceiling However, it should also be noted that order to better protect miners’ health. It level.’’ The preamble to OSHA’s noise MSHA intends to apply this prohibition is therefore appropriate for MSHA to standard further indicates that OSHA’s as it has enforced the same limit under take into account, in determining ‘‘* * * current standard does not the metal and nonmetal standard. This feasibility, the state-of-the-art permit exposures above 115 dB, means that miners may not be exposed engineering that exists in the mining regardless of duration’’ (46 FR 4078, to sound levels exceeding 115 dBA as industry at the time the standard is 4132). In addition, to be consistent with measured using A-weighting and slow promulgated. exposure determinations under response. As a practical matter, there A few commenters suggested that the § 62.110(b)(2)(i), the final rule clarifies may be some exposure to sound above final rule require mine operators to that exposure determinations under this this level which is of such limited develop a written plan for eliminating paragraph must be made without duration that it cannot be measured. overexposures, so that both miners and adjustment for the use of any hearing Obviously, compliance and enforcement MSHA will be aware of the specifics of protectors. are affected by the limitations of the how a mine operator intends to abate NIOSH’s 1972 criteria document instrumentation used to measure sound. noise overexposures at a particular recommended a ceiling limit of 115 Some commenters stated that older mine. MSHA does not believe that dBA. In its 1996 draft Criteria mining machinery as well as equipment requiring a written plan under the final Document, NIOSH reaffirmed its such as pneumatic tools, jackleg drills, rule enhances health protection beyond recommendation of a 115 dBA limit. welding machines, and relief valves that afforded by an action level and Under this draft recommendation, typically exceed the 115 dBA limit. implementation of all feasible controls. exposures to sound levels greater than MSHA is aware that there are noise MSHA is also mindful of its 115 dBA would not be permitted sources in the mining industry, which responsibilities under section 103(e) of regardless of the duration of the may also include unmuffled pneumatic the Mine Act, which cautions the exposure. NIOSH indicated that recent rock drills and hand-held channel Agency not to impose an unreasonable research with animals indicates that the burners, that produce sound levels burden on mine operators, especially critical level is between 115 and 120 which exceed 115 dBA. However, based those operating small businesses, when dBA. Below this critical level, the on MSHA’s experience, practically all of requesting information consistent with amount of hearing loss is related to the these noise sources can be managed the underlying purposes of the Mine intensity and duration of exposure; but with engineering controls and kept Act. It should be noted, however, that above this critical level, the amount of below the sound level of 115 dBA. For § 62.110(d) of the final rule requires hearing loss is related only to intensity. example, there is a muffler available for mine operators to notify a miner whose MSHA proposed the 115 dBA sound the jackleg drill, and burner tips are noise exposure equals or exceeds the level limit based on these available for the hand-held channel action level of the corrective action recommendations, and also on the fact burner, that in many cases will lower being taken to address that exposure. that MSHA’s noise standard at metal the sound level to below 115 dBA. Paragraph (b) of § 62.130 of the final and nonmetal mines currently includes Sound from other pneumatic tools can rule, like proposed § 62.120(c)(2)(i), this limit. also be muffled. requires that if feasible engineering and Commenters took various positions on In addition, mine operators should be administrative controls fail to reduce a whether 115 dBA is the correct level for aware that significant noise reductions
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In the coal mining types of noise may be harmful, MSHA The proposed dual hearing protection sector, for example, roof bolting believes that it is only reasonable to requirement generated many comments. machines have replaced stopers, which consider their effect together, rather The proposal was favored by some are hand-held pneumatic roof drills. than to treat each separately. commenters, and a few who favored the The roof bolting machines produce Accordingly, under the final rule all use of dual hearing protection also much less noise than the stoper. sounds from 90 dBA to at least 140 dBA suggested that MSHA reduce the dual Some commenters requested that are to be included in the range of hearing protection level to 100 dBA. MSHA permit exposures to exceed 115 integration. Impact or impulse noise is Most commenters who opposed the dBA when the noise source is a warning therefore considered with continuous proposal suggested that a single hearing signal or an alarm. The Agency does not noise when determining a miner’s noise protector with a sufficient noise intend that the 115 dBA sound level exposure level. reduction rating can attenuate sound limit apply to warning signals or alarms; levels and reduce miner exposures the ability to hear these signals is Section 62.140 Dual Hearing below the permissible exposure level. critical to the safety of miners. However, Protection Level One commenter believed that MSHA alarm and warning signal sound levels This section of the final rule should replace the proposal with must be integrated into the overall noise establishes requirements for the use of performance-oriented language which exposure of miners. dual hearing protection. Included in this would require the use of ‘‘adequate’’ Several commenters objected to section is the requirement that the mine hearing protection. Also, one enforcing a ceiling level with personal operator must provide and ensure that commenter questioned the adequacy of noise dosimeters. They believed that both an earplug-and an earmuff-type the scientific studies upon which shouting, bumping the microphone, or hearing protector are used MSHA based the proposed requirement. whistling could give false readings simultaneously when a miner’s noise MSHA is adopting the proposed dual which may be interpreted as exceeding exposure exceeds the dual hearing hearing protection requirement because the 115-dBA level. As a practical matter, protection level of a TWA8 of 105 dBA, the scientific evidence shows that the the fact that the indicator on a personal or equivalently, a dose of 800% of that additional noise reduction that is gained noise dosimeter shows that the 115-dBA permitted by the standard during any by the use of dual hearing protection sound level was exceeded does not work shift. will protect the hearing sensitivity of mean that MSHA will take enforcement Two features of the final rule are miners who are exposed to high sound action. Rather, the duration of the sound slightly different from § 62.120(d) of the levels. In addition, the scientific level would need to be sufficient for it proposal. First, explicit language has evidence supports MSHA’s conviction to exceed 115 dBA when measured been added that the dual hearing that a TWA8 of 105 dBA (800%) is an using the slow response on a sound protector requirement is in addition to appropriate level above which dual level meter, or on an equivalent type of the actions required for noise exposure hearing protection should be required, instrument. This measurement that exceed the permissible exposure since this level of noise exposure can procedure should also serve to eliminate level. The preamble discussion of quickly damage the hearing sensitivity concerns that impulse/impact noise proposed § 62.120(d) reflected this of the exposed miner. MSHA is also would exceed the 115 dBA limit and intent. This language has been added to relying upon the research which shows result in a citation. § 62.140 of the final rule for the purpose that a single hearing protector may not In the preamble to the proposed rule, of clarifying the requirements of this adequately protect workers whose noise MSHA requested comments on whether section, which are set forth separately exposures exceed a TWA8 105 dBA. there should be an absolute dose ceiling, from the section on the permissible The research discussed in the regardless of the economic feasibility of exposure level. preamble to the proposal (Berger, 1984; control by an individual mine operator. In addition, the final rule also Berger, 1986; and Nixon and Berger, One commenter stated that it would be includes the range of sound levels, from 1991) shows that dual hearing inappropriate to include a maximum 90 dBA to at least 140 dBA, which must protectors provide significantly greater dose ceiling in the final rule without be integrated in determining a miner’s protection than a single hearing taking feasibility considerations into exposure under this section. The range protector and is effective for protecting account. As a result of the lack of is included in the definition of ‘‘dual workers above a TWA8 of 105 dBA. scientific consensus on this issue, hearing protection level’’ in final For example, Berger, in EARLOG 13 MSHA has determined that a separate § 62.101. MSHA had proposed that a (1984), has shown that the use of dual provision for a dose ceiling is miner’s noise exposure measurement hearing protectors provides greater unnecessary. The 115-dBA sound level integrate all sound levels between 80 noise reduction, on the order of at least limit, in conjunction with the dBA to at least 130 dBA during the 5 dB greater than the reduction of either requirement for dual hearing protectors miner’s full work shift. MSHA decided, hearing protector alone. Berger at a TWA8 of 105 dBA in § 62.140 of the however, not to lower the range of recommends dual hearing protectors final rule, adequately protects the integrated sound levels for a miner’s whenever the TWA8 exceeds 105 dBA. hearing sensitivity of miners. dose determination under § 62.130 of In addition, Nixon and Berger (1991) The final rule, like the proposal, does the final rule regarding the permissible report that earplugs worn in not include a separate provision for exposure level (see discussion of combination with earmuffs or helmets impact or impulse noise. Presently, § 62.130). The dual hearing protection typically provided more attenuation there is insufficient scientific data to requirement of § 62.140 is directly than either hearing protector alone. support such a standard. MSHA is related to § 62.130, in that it requires The use of dual hearing protection is unaware of any effective sampling dual hearing protection in addition to also required by the U.S. armed services methodology for identifying and engineering and administrative controls. when workers are exposed to high measuring sound at this level. Since A more detailed explanation of the sound levels. Additionally, MSHA’s industrial impulse and impact noise are range of integration is provided in the policy under the existing standards for
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This new protectors whenever the noise reduction minimize the extent of any temporary section is consistent with OSHA’s of a single hearing protector does not threshold shift experienced during definition of a hearing conservation reduce the miner’s noise exposure to exposure to high sound levels, MSHA program. within the permissible exposure level. expects that the dual hearing protection MSHA received a number of general Current metal and nonmetal policy will be used in high sound level comments on specific elements that indicates the need to consider dual environments and removed in quiet commenters believed should be hearing protection specifically at sound environments. This procedure would included in any hearing conservation levels exceeding 105 dBA where hand- enhance safety. program. MSHA also received many held percussive drills are used. Also, A few commenters who opposed the comments on specific requirements that dual hearing protection is recommended proposal for dual hearing protection were proposed for each of those by policy where hand-held channel were concerned that the use of earmuffs elements, such as appropriate burners and jumbo drills are used, but may interfere with the use of other audiometric test procedures and the use no sound level is specified at which personal protective equipment such as and maintenance of hearing protectors. such protection should be used. hard hats, safety glasses, and welding Comments addressing the elements that Regarding the commenters who shields. MSHA believes that the proper should be included in a hearing supported the requirement for dual selection and combination of hearing conservation program are discussed hearing protection, but requested that protectors should alleviate this concern. under this section of the preamble. MSHA reduce the dual hearing For example, newer models of ear Comments which address the specific protection level to a TWA8 of 100 dBA, muffs, which are readily available, are requirements for each program element the Agency does not believe that there specifically designed to be used with are discussed under the section where is adequate scientific evidence to hard hats. Other models which were the specific requirements are located. support lowering the proposed level. specifically designed for use with safety For example, a comment that addresses Rather, the Agency is relying upon the glasses or welding shields are also the role of hearing protectors in a scientific studies noted above which readily available. hearing conservation program is recommend dual hearing protectors In response to the commenter who discussed here, while a comment whenever the TWA8 exceeds 105 dBA. expressed a concern regarding dealing with fitting of hearing protectors With respect to the use of canal cap- compliance with this section under the is discussed in the preamble under type hearing protectors under this circumstances where a medical § 62.160. paragraph of the final rule, MSHA notes condition would preclude the use of a None of the commenters supported that it considers a canal cap-type hearing protector, MSHA notes that the MSHA’s proposed definition of ‘‘hearing hearing protector to be neither an dual hearing protection requirement of conservation program.’’ Some earplug-type or earmuff-type hearing this section must be provided in commenters pointed out that the protector. A canal cap hearing protector accordance with § 62.160. Section proposed definition constituted an is an acceptable single-type hearing 62.160(a)(5) allows the miner to choose audiometric testing program only, not a protector but cannot be combined with a different hearing protector if wearing hearing conservation program. These either a plug-type or muff-type the selected hearing protectors is commenters recommended that the use protector, because a proper seal or fit subsequently precluded due to a of hearing protectors should also be cannot be achieved. Therefore, the medical pathology of the ear. included. A number of commenters Agency intends that a canal cap-type recommended that MSHA adopt the Section 62.150 Hearing Conservation hearing protector may not be used for traditional definition of a hearing Program compliance with the dual hearing conservation program used by OSHA, protector requirements of this Under the proposed rule, the stating that any other definition would paragraph. individual elements of a hearing be confusing. These commenters stated Several commenters believed that the conservation program were located in that the term ‘‘hearing conservation proposed dual hearing protection several separate sections. ‘‘Hearing program’’ has been used in general requirement created a safety hazard conservation program’’ was defined in industry since the 1970’s to refer to a because the hearing protectors would § 62.110 of the proposal as a ‘‘generic comprehensive package of actions, prevent a miner from hearing warning reference’’ to the requirements in including noise exposure monitoring, signals, audible alarms, verbal proposed §§ 62.140 through 62.190, noise controls, hearing evaluation and communication, and roof talk. MSHA which addressed audiometric testing protection, training, and recordkeeping. believes that the use of dual hearing requirements and miner notification and MSHA agrees with the commenters protectors would not create an reporting requirements. who believed that the proposed additional safety hazard because the In the interest of clarity and in definition of ‘‘hearing conservation high sound levels generated by some response to commenters, this section program’’ was too narrow and that mining equipment will interfere with consolidates the elements of a hearing adoption of a definition that was similar the detection of roof talk, verbal conservation program in one location in in scope to OSHA’s would avoid communications, and audible alarms. In the final rule, rendering a definition of unnecessary confusion. Accordingly, fact, research by Prout, 1973, discussed ‘‘hearing conservation program’’ the elements identified for inclusion in under § 62.160 of the preamble, shows unnecessary, and the proposed a hearing conservation program under that the noise emitted by mining definition has therefore not been this section of the final rule are, with equipment operating in close proximity adopted in the final rule. In addition to one exception, consistent with OSHA’s to a miner’s assigned work area masks the elements referenced in the proposed definition of ‘‘hearing conservation roof talk. Moreover, if hearing protectors definition of ‘‘hearing conservation program.’’ are not worn, a temporary threshold program,’’ this section also includes as Like OSHA’s noise standard, MSHA’s shift will impair a miner’s ability to hear program elements a system of final rule does not include the use of roof talk, verbal communications, or monitoring under § 62.110, the use of engineering and administrative controls warning signals when the mining hearing protectors under § 62.160, miner as an element of a hearing conservation
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.083 pfrm08 PsN: 13SER2 49602 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations program. However, § 62.130 of the final conservation program. This requirement The hearing protectors would have been rule requires the implementation of all is derived from proposed § 62.120(b)(3). required to be worn at any sound level feasible engineering and administrative A detailed discussion of hearing between 80 and 130 dBA. In its place, noise controls whenever a miner’s noise protectors is found under § 62.160 of the § 62.160(b) of the final rule specifies exposure exceeds the permissible preamble. that mine operators must ensure that exposure level. Therefore, although a Paragraph (c) of § 62.150 of the final miners wear hearing protectors under ‘‘hearing conservation program’’ under rule includes audiometric testing, in similar circumstances. Under the final the final rule does not specifically accordance with §§ 62.170 through rule the mine operator must ensure that include the use of engineering and 62.175 of the final rule, as a hearing hearing protectors are worn by miners administrative controls, the application conservation program element. As whenever their noise exposure exceeds of such controls is required to remedy discussed above, audiometric testing the permissible exposure level, either miner overexposure. MSHA regards an would have been included as a program until feasible engineering and effective hearing conservation program element under the proposal, and has administrative controls have been as a supplement to the first line of been adopted as an element in the final implemented, or despite the use of all defense against noise overexposures, rule. Detailed discussion of audiometric feasible engineering and administrative which is the implementation of all testing, test procedures, evaluation of controls. Additionally, mine operators feasible engineering and administrative audiograms, and other related issues can must ensure that a miner whose noise controls. be found in the preamble under exposure equals or exceeds the action This section of the final rule provides §§ 62.170 through 62.175. level wears hearing protectors, either if that, when a miner’s noise exposure Paragraph (d) of § 62.150 of the final the miner has experienced a standard equals or exceeds the action level of rule includes miner training, to be threshold shift or more than 6 months TWA8 of 85 dBA, the mine operator conducted in accordance with § 62.180 will pass before a baseline audiogram must promptly enroll the miner in a of the final rule, as an element of the can be conducted. The final rule, hearing conservation program. This hearing conservation program. Under however, does not adopt the provision requirement is derived in part from § 62.120(b)(1) of the proposal, training proposed at § 62.125(b) that in those proposed requirements in § 62.120(b)(2) would have been required for miners cases where hearing protectors are and (c)(1), which would have provided whose exposure exceeded the action required to be worn, the mine operator for a miner’s enrollment in a hearing level, but the proposed rule would not must ensure that the protector is worn conservation program if the miner’s have included training as a hearing by the miner when exposed to sound noise exposure exceeded either the conservation program element. levels required to be integrated into a action level or the permissible exposure Extensive discussion of miner training miner’s noise exposure measurement. level. Proposed § 62.120 would also under the final rule can be found in the The final rule adopts the proposed have required miner training, hearing preamble under § 62.180. provisions that the hearing protector is protector use, and a system of Finally, paragraph (e) of § 62.150 of to be fitted and maintained in monitoring, but did not specifically the final rule provides that the hearing accordance with the manufacturer’s designate those items as elements of a conservation program must include instructions; that hearing protectors and hearing conservation program, as does recordkeeping in accordance with necessary replacements are to be the final rule. § 62.190 of the final rule. Issues related provided by the mine operator at no cost Paragraphs (a) through (e) of § 62.150 to access to records, maintenance, and to the miner; a miner whose hearing of the final rule enumerate the elements retention are discussed in detail in the protector causes or aggravates a medical of a hearing conservation program, preamble under § 62.190. pathology of the ear must be allowed to which include a system of monitoring, Section 62.160 Hearing Protectors select a different hearing protector from the use of hearing protectors, among those offered. audiometric testing, training, and Section 62.160 specifies the recordkeeping. Each paragraph also requirements for hearing protectors. The Selection of Hearing Protectors refers to the specific section of the final final rule is essentially identical to MSHA’s existing noise standards rule where the detailed requirements of proposed § 62.125 with a few minor require mine operators to provide each program element are located. changes. Proposed § 62.125 required adequate hearing protectors but do not Paragraph (a) of § 62.150 of the final that miners have a choice of one plug- specify that a variety of hearing rule requires that the hearing type and one muff-type hearing protectors be offered. OSHA’s noise conservation program include a system protector. Under § 62.160(a)(2) of the standard requires that employees be of monitoring in accordance with final rule, miners must be allowed to allowed to select from a variety of § 62.110, which provides that the choose from at least two of each type. suitable hearing protectors provided by system of monitoring must evaluate In the event that, under § 62.140, dual the employer but does not define each miner’s noise exposure sufficiently hearing protection is required, miners variety. OSHA states in the 1981 to determine continuing compliance must be allowed to choose one of each preamble to its noise standard that with the requirements of part 62. This type from the selection offered under ‘‘[T]he company must make a concerted requirement is derived from proposed § 62.160(a)(2). effort to find the right protector for each § 62.120(f), which would have required Under §§ 62.120 and 62.125 of the worker-one that offers the appropriate a system of monitoring, but which did proposal, mine operators would have amount of attenuation, is accepted in not include monitoring as an element of been required to ensure that miners terms of comfort, and is used by the the hearing conservation program. A wore hearing protection in specific employee.’’ more detailed discussion of exposure circumstances: when a miner’s exposure MSHA considered several studies and monitoring is included in the preamble exceeded the permissible exposure comments before concluding that the under § 62.110. level; or when a miner’s exposure minimum selection appropriate for Paragraph (b) of § 62.150 of the final exceeded the action level and the miner miners consists of at least two types of rule includes the use of hearing was determined to have a standard earmuffs and two types of earplugs that protectors, in accordance with § 62.160, threshold shift or would have to wait 6 would provide adequate noise as an element of the hearing months before a baseline audiogram. reduction.
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The National Hearing Conservation interfere less with communication and frequencies, and most earplugs and Association’s Task Force on Hearing awareness of surroundings than do earmuffs are more effective at reducing Protector Effectiveness (Royster, 1995) earmuffs, and may be more comfortable sounds of higher than lower recommends that employers consider in hot, humid conditions. frequencies. As a result, a miner with numerous criteria when selecting the Comfort alone does not determine a significant hearing loss who is wearing variety of hearing protectors to be made miner’s choice of hearing protector. a normal hearing protector would available to their workers. According to Coleman et al. (1984) state that other experience even further reduction in the Task Force, the most important factors, such as: hearing at the higher frequencies. In this criterion for choosing a hearing ** * concern with hygiene, belief in (real or situation, the miner could run the risk protector is ‘‘the ability of a wearer to presumed) communication difficulties, and of not hearing or comprehending achieve a comfortable noise-blocking social constraints * * * can influence the otherwise audible warnings. seal which can be maintained during all extent to which workers will use the Pfeiffer (1992) supports this noise exposures.’’ Other criteria include protection provided * * * Sweetland (1981) reasoning, suggesting that greater care the hearing protector’s reduction of found concern about communication be exercised when selecting hearing noise, the wearer’s daily noise exposure, difficulties to be a major factor in mine protectors for workers experiencing workers’ acceptance of protectors. variations in sound level during a work hearing loss. He notes that it is shift, user preference, communication One commenter suggested that important not to overprotect workers, needs, hearing sensitivity of the wearer, because earmuffs might not provide because if workers experience difficulty compatibility with other safety adequate noise reduction, mine in communicating, they will be equipment, the wearer’s physical operators should be allowed to require reluctant to wear hearing protectors. limitations, climate, and working specific hearing protectors to ensure An alternative is the communication- conditions. that their employees receive the best type hearing protector, which combines Berger (1986) stresses the importance protection. MSHA agrees that an earmuff with a radio receiver so that of comfort, arguing that if a miner will employees should receive the best the wearer can hear important not wear a highly rated but available protection. conversations or warnings. Although no uncomfortable hearing protector, its Accordingly, the final rule does not comments were received on the use of actual effectiveness is greatly reduced prevent mine operators from selecting communication-type hearing protection (or nonexistent). Conversely, the miner among the wide variety of styles, types, devices for hearing impaired miners, may wear a comfortable but less and noise-reduction ratings available in MSHA cautions mine operators against effective hearing protector consistently, hearing protectors which would afford their use in very high noise areas thereby gaining greater effective miners the best protection available. because the sound level transmitted into protection. Berger (1981) also Moreover, MSHA maintains that the the ear cup may be hazardous. Some recommends that an employee should requirement that mine operators manufacturers of communication-type have two weeks to try out an adequate encourage the safe and effective use of hearing protectors, however, have hearing protector and select another one hearing protectors gives them incentive placed limiters in the electronics to if the original selection does not to provide an appropriate variety of prevent potentially hazardous sound perform satisfactorily. types. MSHA further maintains that if levels being transmitted. MSHA believes that such a trial miners are allowed to choose from a Even though some researchers have period further encourages miners’ selection of hearing protectors, indicated that using a hearing protector acceptance of the use of hearing particularly if given appropriate may cause communication problems for protectors and may be necessary for training, as required under this rule, a hearing impaired miner, MSHA has miners to determine if the hearing they will be more likely to wear and determined not to require special protectors they have selected are maintain their hearing protectors for hearing protectors and not to limit the comfortable and appropriate for optimal noise reduction. choices of hearing protectors for the prolonged periods of use. If significant The comment that ‘‘miners will only hearing impaired. As a result, the rule discomfort occurs, MSHA encourages wear plugs that are comfortable’’ allows mine operators the maximum the mine operator to allow the affected represents the consensus view, and a flexibility in addressing this matter in miner to select an alternate hearing number of comments to the proposed ways appropriate to local conditions protector. In any case, provision of an rule noted that a choice from at least and individual needs. alternative hearing protector is one of each type is inadequate. On the Use of Hearing Protectors Above 80 dBA mandatory under the final rule if basis of comments reviewed and the required by a medical condition or international consensus (including the Under § 62.125(b) of the proposal, the because the miner has experienced a U. S. armed services) that workers use of hearing protectors would have standard threshold shift. should choose from a selection of been required when the sound levels Mine conditions such as dust, several hearing protectors, MSHA has exceed those which were proposed to be temperature, and humidity can cause concluded that the use of hearing integrated into the noise exposure one type of hearing protector to be more protectors will be better accepted by measurement. This requirement has not comfortable than another. For example, miners if they have the opportunity to been adopted in the final rule. This even under normal mining conditions, choose appropriate hearing protectors provision, while intended to require the some miners may experience problems from an expanded, but not unlimited, use of hearing protectors above 80 dBA with earmuffs because of a buildup of selection. Thus, the final rule requires when the miner’s exposure exceeded perspiration under the seals. The report that at least two plug-type and two the permissible exposure level, would Communication in Noisy Environments muff-type protectors be offered to in effect have required hearing protector (Coleman et al., 1984) finds earmuffs to miners. usage above 80 dBA, and some be better suited to mining conditions commenters to the proposed rule were than earplugs, because helmet-mounted Hearing Protectors for Miners With concerned that this would result in all earmuffs are comfortable, easy to fit and Significant Hearing Loss miners having to wear hearing remove, effective, and hygienic. Hearing loss due to noise and aging protectors throughout every shift. A However, compressible foam earplugs both affect the ear at higher sound number of commenters who objected to
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.086 pfrm08 PsN: 13SER2 49604 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations the proposal noted that miners should consensus on fitting procedures but most knowledgeable of the features, be permitted to remove hearing notes that research demonstrates that performance, and use of the device. For protectors when the sound level falls proper fitting can increase the example, the safety standards for below 80 dBA, and that MSHA should effectiveness of hearing protectors. explosives at metal and nonmetal mines recommend wearing hearing protectors For example, Chung et al. (1983) require that initiation systems be used above 85 dBA and require them above report that the major factor in the in accordance with the manufacturer’s 90 dBA. One commenter noted that it is performance of earmuffs is the fit, instructions. Therefore, in light of the impossible to enforce the use of hearing which is dependent on headband wide variety of hearing protectors protectors based on the sound level tension. They report that, while available, the broad range of subjective unless there is a practical means of adequate tension is necessary for fitting procedures, and the lack of knowing what the sound level is at all effective noise reduction, high consensus on an objective fitting times, in order to know when it exceeds headband tension also generally causes method, MSHA has concluded that the the threshold level. discomfort. Chung et al. concluded that manufacturers’ instructions provide the MSHA agrees with the commenters proper fitting can increase the best model for fit at this time. who pointed out that the provision in effectiveness of earmuffs. One commenter noted that the best fit the proposal would have required MSHA considered the use of is obtained when individualized hearing protector usage above 80 dBA, audiometric data base analysis the long- training is available to the user. MSHA which would have resulted in miners term collection of audiograms to agrees that training is a key element in having to wear hearing protectors determine the effectiveness of hearing the fitting of hearing protectors, as throughout every shift. MSHA did not protectors and concluded that reflected in the final rule (see § 62.180). intend for the use of hearing protectors audiometric data base analysis is Maintenance of Hearing Protectors to be based on the threshold level, thus inappropriate for determining fit the proposed provision has not been because it does not provide immediate Section 62.160(a)(3) of the final rule adopted. The final rule does set forth feedback on individual fit. Audiometric requires that mine operators ensure that specific circumstances under which data base analysis requires multiple a hearing protector is maintained in mine operators must ensure that miners subjects, and is useful for determining accordance with the manufacturer’s use hearing protectors: when the the adequacy of the hearing instructions. Many manufacturers miner’s noise exposure exceeds the conservation program (protecting the recommend soap, warm water, and permissible exposure level, until hearing sensitivity of a group of careful rinsing to clean the hearing engineering and administrative controls workers) but not the adequacy in protector. Manufacturers also have been implemented, or despite the protecting an individual. Furthermore, discourage solvents and disinfectants as use of such controls; and when the audiometric data base analysis requires cleaning agents because they can cause miner’s exposure is at or above the audiograms to be conducted on an skin irritation and some can damage the action level, and the miner has incurred annual basis. If no interim protection is hearing protector. In most cases, the a standard threshold shift, or more than provided between audiograms, a miner’s proper insertion technique for earplugs 6 months will pass before the miner’s hearing sensitivity could be irreversibly includes proper basic hygiene cleaning baseline audiogram can be conducted. damaged. the hands before rolling or inserting Use of hearing protectors is not based As stated in the preamble to the earplugs. on the threshold levels. MSHA has proposal, MSHA agrees that proper MSHA reviewed standards of hearing determined that it is the responsibility fitting is necessary to ensure optimal protector maintenance among the U.S. of the mine operator to determine when effectiveness of hearing protectors and armed forces and the international beyond the specific requirements of the that it should not be left solely up to the community. The consensus of the final rule hearing protectors should be individual miner to determine if the standards was that damaged or worn. This is one goal of the mine hearing protector fits properly. deteriorated hearing protectors must be operator’s monitoring program. Some commenters saw the need for an replaced. Research also demonstrates accurate, reliable, and inexpensive that non-disposable hearing protectors Fitting of Hearing Protectors method of testing the fit of earplugs and should be replaced between 2 and 12 Section 62.160(a)(3) of the final rule earmuffs. MSHA agrees that such a fit times per year (Berger, 1980). Constant addresses the fitting of hearing test for earplugs and earmuffs is needed wear causes hearing protectors to lose protectors, and is identical to § 62.125(c) in order to determine the amount of their effectiveness. For example, of the proposed rule. The final rule protection an individual obtains from a headbands on earmuffs can lose their requires that mine operators ensure that hearing protector, but none exists at this compression ability; the soft seals hearing protectors be fitted in time. MSHA believes that, until such a surrounding the ear cup on earmuffs can accordance with manufacturer’s test is developed, the manufacturer’s become inflexible; and plastic earplugs instructions. instructions should be used to fit can develop cracks, shrink, or lose their Many commenters supported the earmuffs and earplugs. elasticity. All types are susceptible to requirement that hearing protectors be Some commenters noted that not all contamination. properly fitted. A number of manufacturers’ instructions are MSHA recognizes that it is difficult to commenters observed that earplugs vary adequate to ensure proper fit. In keep hearing protectors clean in the more from laboratory data than earmuffs addition, one commenter was opposed mining environment. Using because earplugs are harder to fit to mandating the manufacturers’ contaminated hearing protectors, properly. Several commented that instructions, claiming that doing so was however, may contribute to a medical proper fit depends upon the wearer’s ear an unlawful delegation of MSHA’s pathology of the ear. Once the skin has canal size and shape, manual dexterity, responsibility. MSHA disagrees. There been abraded or inflamed, and motivation. Others stated that are many instances of regulations microorganisms in the ear or on a people often select a comfortable requiring that manufacturers’ hearing protector can invade the skin. earplug that does not effectively seal the instructions be followed, because the When hearing protectors appear to be ear canal, so that it provides little manufacturer of the instrument, the cause of inflammation of the protection. MSHA recognizes a lack of machine, or protective device is the external ear canal (otitis externa), the
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.088 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49605 hearing protector is often found to be evidence of a medical pathology (for operators ensure the use of hearing contaminated with an irritating or example, otitis externa or contact protectors when the miner’s noise abrasive substance. This situation can dermatitis). The definition of ‘‘medical exposure is at or above the action level be corrected with proper cleaning of the pathology’’ is intended to cover injuries. and the miner has experienced a hearing protector before use. If, for example, a miner suffered a burn standard threshold shift or it takes more As noted in the proposed rule, miners in the ear canal and could no longer use than 6 months to conduct the baseline have been known to alter hearing the earplugs he or she had earlier audiogram. protectors to make them more selected, he or she must be allowed to The proposal’s requirement that the comfortable. Such alterations have select an earmuff. Comments to the mine operator ensure the use of hearing included cutting off the ends of earplugs proposed rule indicated a consensus protectors under particular or stretching out the head-band on that miners should be permitted to circumstances generated comments earmuffs to decrease the tension. These change their choice of hearing protector concerning convenience, comfort, and alterations can significantly decrease the on the basis of the opinion of a medical noise reduction. One commenter to the hearing protector’s effectiveness. In professional. A preliminary diagnosis of proposed rule noted that to meet the addition, hearing protectors can be medical pathology by a family physician proposed requirement, miners would damaged from exposure to heat, cold, or nurse must be accepted by a mine need to wear hearing protectors ozone, chemicals, or dirt. Because such operator for the purposes of this throughout entire shifts, which would conditions are common in the mining requirement. be very inconvenient. industry, hearing protectors must be One commenter stated that people Some research supports the periodically checked and replaced if wearing hearing protectors are prone to assumption that miners would resist damage is found. While MSHA ear infections. Berger (1985), however, wearing hearing protectors as recognizes that it is difficult to keep reports that although there are some prescribed. Despite mandatory use of hearing protectors clean and undamaged preexisting ear canal conditions and hearing protectors, most workers in the in the mining environment, the final environmental conditions that prevent Abel (1986) study admitted to wearing rule requires mine operators to ensure the use of certain hearing protectors, in their hearing protectors less than 50% of that hearing protectors are maintained general, otitis externa occurs in the time. Further, many modified their in accordance with manufacturers’ approximately 2% of both users and hearing protectors to provide greater instructions. nonusers of hearing protectors. He comfort. Many of the modifications therefore concludes that regular wear of Replacement of Hearing Protectors lowered the effectiveness of the hearing hearing protectors does not increase a protectors. Section 62.160(a)(4) of the final rule is person’s chances of contracting otitis As noted by Berger (1981), persons identical to proposed § 62.125(d). This externa. In any case, disposable hearing with medical pathologies of the ear are section requires the mine operator to protectors may be warranted for more likely than others to resist wearing provide the hearing protector and individuals prone to infections. necessary replacements at no cost to the MSHA’s existing noise standards do hearing protectors because of pain or miner. MSHA intends for this section to not specifically address the replacement extreme discomfort associated with include repairs to a miner’s hearing of hearing protectors. OSHA’s noise their use. Berger suggests that persons protector when it becomes damaged or standard simply requires that hearing who are more prone to otitis externa deteriorated to the point that the protectors be replaced as necessary. would need to be monitored more required protection is compromised. Based upon the research and several closely for failure to wear their hearing Commenters agreed that this should be international standards, MSHA believes protectors. the case. that hearing protectors need to be As many have emphasized, hearing Replacement of hearing protectors replaced whenever a medical pathology protectors are only effective if they are would take place according to the is present. Such replacements must also worn. Their effectiveness is diminished manufacturer’s instructions upon be available at no cost to the miner. if they are not worn for the duration of finding any deterioration that could any exposure. Chart NR1, below, Circumstances Requiring the Use of adversely affect the hearing protector’s illustrates that the amount of noise Hearing Protection effectiveness or upon diagnosis of a reduction provided is directly medical pathology caused or aggravated Section 62.160(b) of the final rule sets dependent upon the proportion of by the hearing protector provided (see forth the circumstances in which mine exposed time during which the hearing following section for discussion of operators must ensure that hearing protector is worn. medical pathology). For example, protectors are worn. Section 62.160(b) For example, if a hearing protector manufacturers of disposable earplugs incorporates requirements of proposed with a noise reduction rating (NRR) of may state in their instructions that the §§ 62.125(b)(2) and 62.125(c)(2)(iii). 29 dB is worn during only half the earplugs should be replaced after each Section 62.160(b) requires that mine exposure time, the wearer will use. operators ensure the use of hearing effectively obtain only about 5 dB of protectors when the miner’s exposure noise reduction. A noise reduction Replacement Due to Medical Pathology exceeds the permissible exposure level rating of 29 dB is among the highest Section 62.160(a)(5) of the final rule is before the implementation of all feasible reported by hearing protector identical to proposed § 62.125(e). This engineering and administrative controls, manufacturers; yet, if a hearing section requires the mine operator to or if the miner’s exposure continues to protector with this rating is not worn provide an individual miner with a exceed the permissible level despite the 100% of the time that the wearer is different, more appropriate, type of use of all feasible controls. Sections exposed to noise, it is no more effective hearing protector when presented with 62.160(c)(1) and (c)(2) require that mine than a much lower-rated protector.
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Many commenters oppose mandatory hearing protection device is worn, yet communication difficulties and the use of hearing protectors because they recognition is ordinarily the same sense of isolation caused by wearing believe that they would interfere with whether the ears are protected or hearing protectors in such areas. the aural detection of warning signals unprotected.’’ Prout et al. (1975), found The final rule does not adopt and alarms at mine sites. Also, some that hearing protectors do not generally proposed § 62.120(b)(3), which would commenters believe that the use of prevent a miner from hearing and have required mine operators to provide hearing protectors hampers an analyzing roof talk when the noise level hearing protection, upon request, to a underground coal miner’s ability to hear is high enough to require hearing miner whose exposure exceeded the sounds generated by changing stresses protectors, but they diminish the ability action level. Because the final rule in the geologic structure of the mine— to interpret roof warning signals in requires mine operators to enroll miners commonly known as ‘‘roof talk.’’ MSHA quiet. Thus hearing protectors should whose exposures equal or exceed the acknowledges that miners need to be not be worn in quiet conditions. In action level, and hearing protectors are aware of the location and movement of addition, Berger (1986) found that the provided to miners as a part of that equipment in the mining environment. use of hearing protectors by persons program, the proposed requirement is These commenters stated that the ability with normal hearing had no significant unnecessary, and has not been adopted to hear these sounds allows miners to effect on the ability to detect warning in the final rule. retreat from an unsafe area before the signals and that for persons with non- Section 62.170 Audiometric Testing roof collapses, saving their lives and the normal hearing, ‘‘[w]arning sounds may This section of the final rule lives of others wearing hearing be adjusted in pitch and loudness to establishes requirements for the protectors. These commenters submitted achieve optimum perceptibility.’’ Berger audiometric testing conducted as part of anecdotal information to MSHA in (1986) also referenced additional studies the hearing conservation program under support of their position. Other which showed that the use of hearing § 62.150 of the final rule. Included in commenters were concerned that protectors reduced rather than increased this section are specific qualification hearing protectors limit the ability of the number of industrial mishaps. requirements for persons who conduct miners to communicate, hear warning The U.S. armed services and many audiometric testing; a requirement that signals, and properly operate mining international communities have audiometric testing performed under machinery. Still others, however, stated specified sound levels above which this part be offered at no cost to the that miners can hear roof talk while hearing protectors must be worn. miner; and procedures for baseline wearing hearing protectors, and that However, MSHA concludes that audiograms, annual audiograms, and roof fall accidents could not have been requiring specific trigger levels for revised baseline audiograms. prevented if hearing protectors had not hearing protectors in specific The requirements in this section of been worn. circumstances would be burdensome the final rule are nearly identical to the The rulemaking record contains and require mine operators to conduct requirements of proposed § 62.140, with evidence from which MSHA concludes a comprehensive survey on each piece a few relatively minor changes that are that for persons with normal hearing, of equipment. Instead, the Agency is described in detail below. This section the use of hearing protectors will not taking the more practical approach of requires that audiometric tests interfere with the aural detection of requiring mine operators to ensure performed to satisfy the requirements of warning signals and alarms at mine through their policies that hearing part 62 be provided by the mine sites. Nixon and Berger (1991), have protectors are worn whenever noise- operator at no cost to the miner, and be concluded that ‘‘[h]earing protection producing equipment is operating in the conducted by a physician or an devices equally attenuate the levels of miner’s work area and that miners are audiologist, or by a qualified technician both the noise of the environment and permitted to remove their hearing under the direction of a physician or an auditory signals. An auditory warning protectors in areas with low sound audiologist. Section 62.101 of the final signal may sound different when a levels. This should minimize rule defines ‘‘audiologist’’ as a
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The final rule commenters suggested pre-employment licensed by a state board of examiners. therefore does not adopt commenters’ audiograms be used as the baseline. ‘‘Qualified technician’’ is defined in suggestions that additional licensing or The final rule, like the proposal, § 62.101 of the final rule as a technician qualification requirements be requires mine operators to offer miners who has been certified by the Council established for physicians conducting whose noise exposure exceeds the for Accreditation in Occupational audiometric testing and evaluating action level the opportunity for Hearing Conservation (CAOHC) or audiograms. audiometric testing to establish a another recognized organization offering The final rule adopts the proposed baseline and at least annually after the equivalent certification. A number of requirement that qualified technicians baseline has been established. The comments were received regarding the conducting audiometric tests be under proposed rule would have also required, appropriate qualifications for the direction or supervision of a under § 62.120(c)(2)(ii), that mine audiologists or technicians who perform physician or an audiologist. Although operators ensure that a miner whose audiometric testing. These issues are the final rule does not require that the exposure to noise exceeded the discussed in greater detail in the physician or audiologist be present permissible exposure level actually preamble under § 62.101, addressing the when the technician conducts the submitted to the audiometric testing definitions provided in that section. audiometric testing, the physician or offered as part of the hearing Commenters disagreed as to what audiologist must oversee the activities conservation program. MSHA proposed qualifications were necessary for of the technician enough to ensure this mandatory testing requirement for physicians performing audiometric adherence to the appropriate test several reasons, including a concern testing. Some commenters were procedures. that without mandatory testing, concerned that physicians may not have This section provides that all standard threshold shifts and reportable the specific knowledge necessary to audiometric tests performed pursuant to hearing losses would go undetected. conduct audiometric testing, while part 62 must be provided by the mine MSHA was also concerned that a other commenters believed that operator at no cost to the miner. This voluntary program might have a low physicians were appropriately qualified. requirement essentially adopts the rate of participation. Finally, the Agency Several commenters stated that many, if proposed requirement that participation was concerned that unless participation not most, physicians do not have the in a hearing conservation program was mandatory, the costs of miner training, the expertise, or the equipment would be provided by the mine operator testing would provide an incentive for to perform the audiometric testing at no cost to the miner. The proposed mine operators, who will bear the costs called for under this part. Some elements of a hearing conservation of such testing, to discourage miners commenters suggested that physicians program would have included the from participating. MSHA recognized conducting audiometric testing under annual audiometric testing and required that this provision would be the final rule be required to be board- follow-up examinations and actions. controversial for many in the mining certified otolaryngologists; others were community, and specifically solicited Baseline Audiogram of the opinion that the final rule should comments on this issue in the proposed require that physicians conducting the The requirements in paragraphs (a)(1) preamble. testing have expertise in hearing and through (a)(3) of § 62.170 of the final The mandatory audiometric testing hearing loss. Several commenters rule are derived from virtually identical requirement has not been adopted in the preferred a requirement for both requirements in proposed § 62.140(b). final rule, in response to a number of certification and licensure or that the Under these requirements: commenters who were opposed either to physician be an otolaryngologist or an (1) A miner enrolled in a hearing any type of mandatory audiometric otologist. However, MSHA recognizes conservation program must be offered testing or to placing the burden on the that many miners working in outlying an audiometric test within specified mine operator to ensure that the miner areas may not have easy access to an time periods to establish a valid submit to such testing. Some audiologist who is both licensed and baseline audiogram; commenters stated that mine operators certified. (2) The mine operator must provide could not force miners to take hearing The final rule does not adopt the the miner with a 14-hour quiet period examinations. These commenters suggestion of some commenters that prior to the baseline audiogram; and believed that mine operators should be minimum qualifications be included in (3) Revisions in the miner’s baseline required to offer miners such testing, the rule for physicians who conduct audiogram are not permitted because of but should not be penalized if miners do audiometric testing. MSHA recognizes changes in the miner’s enrollment status not take advantage of the offer. Other that a license to practice medicine does in the hearing conservation program. commenters believed that MSHA should not guarantee that a physician has the However, a new baseline may be directly require miner participation in specialized training or experience established for a miner who is away the testing, not put the responsibility on needed to conduct audiometric testing, from the mine for more than 6 the mine operator to see that miners evaluate audiograms, and supervise consecutive months. participate. Finally, one other those technicians who perform such Unlike the proposal, the final rule commenter believed that forcing a miner activities. However, states enforce allows the use of hearing protectors as to participate in an audiometric testing stringent medical licensing a substitute for the 14-hour quiet period. program may violate existing labor requirements, and the medical Commenters who addressed the issue contracts. profession maintains a high degree of of audiometric testing generally A number of commenters supported accountability for physicians and has acknowledged the need for a valid the concept of mandatory audiometric established strict ethical standards for baseline audiogram as part of an testing. One commenter stated that medical practitioners. In light of these effective hearing conservation program. audiometric testing is essential to assess controls, the Agency expects physicians However, commenters disagreed on an employee’s hearing and determine to exercise professional judgment in whether audiometric testing under the future changes in hearing sensitivity.
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This commenter further stated that the when the miners may have concerns appear smaller than if they had been audiogram could therefore not be an about the privacy and confidentiality of compared to a baseline that had been optional medical evaluation, but is the audiometric test records and follow-up established prior to the years of noise keystone of a comprehensive hearing evaluations. MSHA also believes that a exposure. conservation program. Other miner who voluntarily participates in A few commenters believed that the commenters were of the opinion that if audiometric testing will more likely audiogram should be conducted within audiometric testing were voluntary, wear hearing protectors, maintain 12 months of the effective date of the miners would be sent the wrong engineering noise controls, and comply rule to be considered a baseline. Other message and a mine operator’s efforts to with administrative noise controls. commenters believed an existing run an effective hearing conservation Mine operators remain free to make baseline should be used; otherwise, program would be undermined. These audiometric testing mandatory for their experienced miners would be placed at commenters further stated that if miners. However, a miner’s refusal to a disadvantage if their baselines were audiometric testing is voluntary and a participate in a mandatory audiometric established after the implementation of miner refuses the offer of an audiogram, testing program would be a labor- the final rule. any hearing loss should be presumed to management issue rather than an MSHA MSHA encourages the use of existing be non-work-related. Another enforcement issue, and is outside the audiograms as baselines because, as commenter questioned whether a miner scope of this rule. explained above, this approach would would have the right to refuse to Under § 62.120 of the final rule, mine provide a greater degree of protection participate in an audiometric testing operators must enroll miners whose for the affected miner. Therefore, the program. This commenter stated that if exposure to noise exceeds the action final rule adopts the proposed provision a miner could refuse, mine operators level in a hearing conservation program, that permits the use of existing would be placed at a disadvantage in and offer those miners the opportunity audiograms as the baseline at the monitoring work-related hearing loss, for regular audiometric tests. discretion of the mine operator, if the and be subject to unwarranted workers’ Information from these tests indicating audiograms meet the testing compensation claims. This commenter that miners are experiencing hearing requirements of this part. MSHA was also concerned that, without loss should prompt both the mine acknowledges the concerns of mandatory audiometric testing, mine operator and the Agency to examine the commenters about miners who may operators would be unable to collect effectiveness of existing noise controls. already have incurred a hearing loss accurate data to identify hearing-related For example, if a miner incurs a before the effective date of the final rule, problems, hampering mine operators’ standard threshold shift, the mine whose hearing loss may not be ability to take appropriate corrective operator, at the very minimum, should accurately assessed if new baseline action to provide a healthier workplace. ensure that a hearing protector is audiograms are used under this rule. MSHA notes that the commenters provided to and worn by the miner (see However, the establishment of a who supported the concept of preamble for § 62.160(c)(1) for further comprehensive scheme that addresses mandatory audiometric testing for discussion). If the miner already has a existing hearing loss among miners is miners varied greatly as to when such hearing protector, the mine operator outside the scope of the final rule, tests should be required. A number of should determine whether the hearing whose purpose is the prevention of commenters believed that audiometric protector needs to be changed. The occupational noise-induced hearing loss testing should be mandatory for miners information obtained through among miners and the reduction of the whose noise exposures equal or exceed audiometric testing may indicate the progression of such hearing loss. the action level, and that all miners need to pinpoint the source of the noise Paragraph (a)(1) adopts the proposed enrolled in a hearing conservation causing the problem, and may reveal an requirement that the audiometric testing program should be required to submit to undetected failure of existing noise which results in a baseline audiogram audiometric examinations. Other controls, failure to properly fit, maintain be offered to the miner within 6 months commenters supported mandatory or utilize hearing protectors, or failure of enrollment of the miner in a hearing audiometric testing for all miners, of the training to provide adequate conservation program, or, if mobile test regardless of their noise exposures. One instruction. vans are used, within 12 months of the commenter who supported mandatory Paragraph (a) of § 62.170 of the final miner’s enrollment. These requirements testing stated that the Americans with rule, like the proposal, requires that a are consistent with the requirements of Disabilities Act (ADA) protects miners miner be offered the opportunity for OSHA’s noise standard. MSHA’s from discrimination based on hearing audiometric testing to establish a existing noise standards for coal mines disability, and any confidentiality baseline audiogram, against which do not specify a deadline for baseline concerns would be addressed both by subsequent annual audiograms can be audiograms for those miners under a the ADA and the protections in the compared. An existing audiogram may hearing conservation plan, and the proposed rule. be used as the baseline audiogram if it existing noise standards for metal and MSHA has concluded that mandatory meets the audiometric testing nonmetal mines do not require baseline audiometric testing is inappropriate at requirements of § 62.171 of the final audiograms. all levels of noise exposure, based on rule. OSHA also accepts existing Commenters offered differing views several considerations. MSHA audiograms as a baseline because, in on the appropriate period within which acknowledges the concerns of the most cases, use of an existing baseline a baseline audiogram should be commenters who believe that a audiogram is more protective for the conducted. One commenter believed voluntary audiometric testing program employee. Establishing a miner’s that a miner’s audiometric baseline could allow miner hearing loss to go baseline after the miner has been should be determined within 90 days of undetected and unaddressed. However, exposed to high levels of noise for many the miner’s enrollment in the hearing MSHA is reluctant to require miners, years is likely to result in less protection conservation program, rather than 6 either directly or indirectly, to submit to for the miner, because the new months or a year. Others were of the medical examinations that they do not audiogram would typically show higher opinion that 6 months for a baseline (12 wish to undergo. MSHA is also reluctant thresholds. Consequently, the true months if a mobile test van is used) to require miners to submit to testing extent of future hearing losses would established in the proposal was a
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.094 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49609 reasonable deadline. In contrast, the It should be noted that § 62.160(c)(2) the operation of those mines. Another National Institute for Occupational of the final rule requires mine operators commenter questioned how a mine Safety and Health (NIOSH) has not only to provide all miners enrolled operator could possibly ensure that a recommended that baseline audiograms in a hearing conservation program with miner was not exposed to high levels of be conducted within 30 days of hearing protectors, but also to ensure non-occupational noise. enrollment in a hearing conservation the hearing protectors are used if the MSHA agrees that the mine operator program, even if a mobile test van is baseline audiogram cannot be has no control over a miner’s exposure used. NIOSH believes that waiting up to conducted within the 6-month deadline. to noise away from work. However, the 6 months for a baseline audiogram is The final rule’s requirements for training required under the final rule unacceptable, because exposure to high baseline audiograms, including the use should encourage miners to avoid high sound levels for a relatively short period of hearing protectors, are consistent noise exposures off the job before of time can adversely affect the hearing with the OSHA rule. audiometric testing. One commenter sensitivity of susceptible individuals. also suggested that the 14-hour quiet 14-hour Quiet Period Other commenters advocated the use of period be reduced to 12 hours, because pre-employment audiometric testing, Paragraph (a)(2) of § 62.170 of the it would minimize any interference with under the rationale that such final rule has been adopted with a normal work shifts. examinations should be part of the substantive change from proposed Research has been conducted on the battery of tests conducted when a miner §§ 62.140(b)(2) and (b)(3). This length of the hearing recovery period is hired. These commenters believed paragraph, like the proposal, requires from a temporary threshold shift due to that there is a need to document a that the mine operator notify the miner exposure to noise. Fodor and Oleinick miner’s existing hearing loss at the point of the need to avoid high levels of noise (1986), in their study on workers’ that the miner is hired, so that mine for at least 14 hours immediately compensation programs in the United operators can establish what part of a preceding the baseline audiogram. This States, reported that the initial recovery miner’s hearing loss can be attributed to paragraph also requires that the mine from a temporary threshold shift noise exposure at that mine. Another operator not expose the affected miner appeared to be very rapid at the end of commenter requested that the first to workplace noise for at least a 14-hour the noise exposure, but that the rate of annual or periodic audiogram period immediately prior to receiving recovery appeared to slow as time went conducted after the effective date of the the baseline audiogram. The final rule, on. Most researchers, however, report noise rule should be considered the unlike the proposal, allows the use of complete recovery from a temporary baseline audiogram. hearing protectors as a substitute for this threshold shift taking no longer than 16 Baseline audiograms provide an quiet period. Although existing MSHA hours, provided that the temporary essential point of comparison for standards for noise do not include threshold shift did not exceed 40 dB. On subsequent audiograms, and are critical provisions for a quiet period before a the other hand, some states require that in determining the extent of a miner’s baseline audiogram, these requirements a worker be away from noise exposure hearing loss. If the baseline audiometric are similar to a provision in OSHA’s for 6 months before hearing loss is test is not conducted properly and at the noise standard. evaluated for workers’ compensation appropriate time, it may not accurately The 14-hour quiet period provides a purposes. Standards of the U.S. Navy reflect the miner’s hearing thresholds, miner’s hearing sufficient rest to allow require a quiet period of at least 14 and any changes between the baseline recovery from any temporary elevation hours, and the U.S. Air Force requires audiograms and subsequent audiograms of hearing levels due to noise exposure a 15-hour quiet period before may be masked. Because of the (temporary threshold shift) caused by audiometric testing. importance of the baseline audiogram, it pre-test noise exposure. Hearing levels After consideration of all of the is highly desirable to conduct the return to normal after a period of quiet. comments and a review of the available baseline testing before a miner is If the baseline audiogram is skewed by scientific literature on the subject, exposed to hazardous noise. a temporary threshold shift, compari- MSHA has concluded that a quiet MSHA has determined that a deadline sons of the baseline to subsequent period is necessary to obtain a valid of 6 months (or 12 months if a mobile annual audiograms will not provide an baseline audiogram, and that a 14-hour test van is used) for obtaining the accurate indication of the extent of quiet period is the most appropriate of baseline audiogram is reasonable. This damage incurred during the time several alternatives. This conclusion is is because in many cases it is not between the baseline and subsequent consistent with the requirements in possible to conduct it any sooner due to tests. It is critical that a miner’s baseline OSHA’s noise standard and should the remote location and intermittent audiogram reflect no temporary provide sufficient time to avoid or operation of many mines and to the threshold shift. Otherwise, it will be recover from a temporary threshold shift unavailability of adequate audiometric essentially impossible to determine the before the baseline audiogram is testing facilities. MSHA recommends magnitude or progression of future conducted. that testing should take place as soon as hearing loss. A quiet period of longer than 14 hours possible. Some commenters supported would place an undue burden on mine The 12-month period for testing by a extending the quiet period requirement operators, because in many instances mobile van allows mine operators to to annual audiograms as well as the miner would have to stay away from schedule baseline and annual baseline audiograms. Other commenters the work site to comply with the quiet audiograms simultaneously, and thus opposed a mandatory 14-hour quiet period when the miner works a slightly substantially reduce the cost when period, maintaining that requiring extended shift; many work shifts exceed mobile test vans are used. The 12-month miners to be protected from workplace 8 hours, especially when a lunch period deadline for mobile van testing noise prior to the baseline test was is taken into account. recognizes that there may be significant unreasonable for mines with extended The proposal, like the final rule, logistical and scheduling considerations shifts. In those mines, unless the miner prohibits the exposure of miners to in a visit to a mine by a mobile test van. missed all or part of the work shift, he ‘‘workplace noise’’ during the 14-hour Scheduling may need to be done or she would not receive 14 hours of quiet period. Several commenters months in advance. quiet time. This would severely disrupt requested a definition for ‘‘workplace
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For example, a mine operator must be below 72 dBA to be considered satisfactory condition; and mandatory could provide a miner with a quiet ‘‘effective quiet.’’ Schwetz et al. (1980) use of dual hearing protectors if the found that a sound level below 85 dBA noise exposure exceeds 100 dBA. Many period by scheduling the baseline is needed for recovery from a temporary of the commenters who opposed the use audiogram after a miner’s regularly threshold shift. Studies have shown that of hearing protectors as a quiet period scheduled day off or immediately individuals with a temporary threshold substitute were those who opposed the following a weekend during which the shift recovered their normal hearing use of hearing protectors for any reason miner does not work. This avoids any more quickly when exposed to a 75-dBA (see the preamble discussion of disruption of operations, while at the sound level than they did when they engineering and administrative controls same time ensuring that the audiogram were exposed to an 85-dBA sound level. under § 62.130). As discussed is not contaminated. The 1972 NIOSH Criteria Document elsewhere, although hearing protectors Sound Level Avoidance recommends a sound pressure level of are not as effective as engineering and 65 dB as ‘‘effective quiet,’’ based on administrative controls in protecting Paragraph (a)(2) of § 62.170 of the work by Schmidek et al. (1972). Hodge miners, MSHA has concluded that they final rule, like § 62.140(b)(3) of the and Price (1978) concluded that a sound have an appropriate place in a hearing proposal, requires mine operators to level must fall below 60 dBA to provide conservation scheme. notify the miner of the need to avoid effective quiet and not contribute to the OSHA’s noise standard allows the use high levels of noise during the 14-hour development of a temporary threshold of hearing protectors as an alternative to period immediately preceding the shift. the 14-hour quiet period prior to the baseline audiogram. This requirement is Recovery from a temporary threshold baseline audiogram, under the rationale identical to provisions in OSHA’s noise shift requires exposures below 80 dBA, that they may provide sufficient noise standard. and based on scientific studies, reduction to prevent a noise-induced extended exposure to noise above 80 temporary threshold shift from Only a few commenters addressed dBA may lead to a material hearing contaminating a baseline audiogram, this issue. Some commenters agreed that impairment. MSHA has therefore and that the previous restriction on workers need to be advised to avoid concluded that an acceptable definition hearing protectors as a quiet period non-occupational noise exposure prior of ‘‘workplace noise’’ is a sound level substitute was unnecessarily restrictive. to taking the baseline audiogram. that exceeds 80 dBA, without taking MSHA’s final rule is consistent with Several commenters were concerned into account the noise reduction OSHA’s noise standard in that it allows that notifying the miners to avoid high provided by a hearing protector. hearing protectors to be substituted for levels of noise could lead to fraud in Because the mine operator has no the 14-hour quiet period prior to the workers’ compensation cases. These control over the non-occupational noise baseline audiogram. Although MSHA commenters were concerned that miners exposure of a miner, the final rule does recognizes that this decision may result might intentionally expose themselves not limit non-occupational noise to a in some miners having measured to high levels of noise prior to the specified sound level during the quiet thresholds that are higher than their baseline audiogram in order to provoke period; however, as noted below, the actual thresholds, as a result of exposure a temporary threshold shift and final rule does require that the mine to some high sound levels, the eventually receive an award of operator notify miners of the need to magnitude of the elevated thresholds compensation. MSHA expects that avoid high levels of noise during the 14- should be small unless the noise competent audiologists and physicians hour period preceding the test. It is to exposure is severe. will be able to determine if a miner has the miner’s benefit to limit non- Data indicate that in order to prevent purposely incurred a temporary occupational exposure to noise in order contamination of the baseline, the threshold shift. to obtain accurate audiometric testing. sound levels encountered during the As mentioned above, the final rule, quiet period would need to be below 80 The 1983 preamble to revisions to unlike the proposal, adopts the dBA. MSHA is particularly concerned OSHA’s noise standard (48 FR 9757) suggestion of a number of commenters with the ability of hearing protectors to reflects OSHA’s conclusion that the to permit the use of hearing protectors reduce noise to such low levels. Some likelihood of non-occupational noise as a substitute for the quiet period. The researchers have concluded that even an exposure contaminating the baseline specific prohibition against hearing 80 dBA level may be inadequate to audiogram can be substantially reduced protectors as a substitute for a quiet protect the most susceptible by counseling workers of the need to period in § 62.140(b)(2) of the proposal individuals. However, MSHA has avoid such exposures in the period elicited a number of comments. Many concluded that prohibiting the use of before their baseline tests. MSHA agrees commenters believed that the use of hearing protectors to fulfill the 14-hour with OSHA’s conclusion regarding hearing protectors should be allowed quiet period is too impractical a worker notification, and the final rule because they would provide adequate restriction for most mine operators. reflects this determination. It should be protection for miners. Many also Such a restriction may be too disruptive noted that the final rule does not require believed that a mandatory 14-hour quiet of the operations at many mines. written notification. However, it may be period would be impractical without the Hearing protectors that are correctly in a mine operator’s interest to put the use of hearing protectors. Several fitted and used should provide an notification in writing, because it commenters advocated that hearing acceptable quiet period. The final rule, provides the mine operator with proof protectors be permitted to be used to like OSHA’s noise standard, therefore of notification.
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Exceptions for Revising Baseline Annual Audiogram evaluating the hearing level of miners Audiograms or Revised Baseline Paragraph (b) of § 62.170 of the final whose exposure equals or exceeds the Audiograms rule adopts the requirement of action level for extended periods of § 62.140(c) of the proposal that, after the time. These annual audiograms can be The requirements of paragraph (a)(3) used to detect changes in a miner’s of § 62.170 of the final rule are nearly baseline audiogram has been established, the mine operator must hearing sensitivity, thus triggering identical to proposed § 62.140(b)(4) in continue to offer the miner subsequent several important actions provided for that a mine operator must not establish audiometric tests every 12 months as in the final rule. For example, retraining a new baseline audiogram or revised long as the miner remains enrolled in a of the miner could be required. If a baseline audiogram, where one has been hearing conservation program. miner is enrolled in the hearing established, due to changes in the Existing MSHA standards for metal conservation program as a result of miner’s enrollment status in the hearing and nonmetal mines do not require noise exposure at or above the action conservation program. However, audiometric testing. Under existing level, but the miner’s noise exposure is baseline audiograms may be revised if a standards for coal mines, pre- below the permissible exposure level, miner is away from the mine for a employment and periodic audiograms detection of a standard threshold shift period of time exceeding 6 consecutive are offered to miners at mines operating will require the mine operator to months. OSHA’s noise standard does under a hearing conservation plan, but provide the miner with a hearing not contain such a requirement. This no procedures or time frames for these protector and ensure its use. If a miner restriction is intended to ensure that a audiograms are specified (although is already using a hearing protector, the new baseline audiogram is not MSHA policy provides that periodic miner must be allowed to select a established or a miner’s baseline audiograms must be offered at least different hearing protector. Detection of audiogram is not revised even if a miner every two years). Because MSHA policy a standard threshold shift also requires moves in and out of enrollment in a has allowed consideration of the noise reevaluation of the engineering and hearing conservation program because reduction value of hearing protectors to administrative controls being used at of time away from the mine due to be considered when determining the mine. unemployment or extended periods of compliance with the permissible With regard to those commenters who vacation. Otherwise, a miner’s exposure level in coal mining, few coal were concerned about being held incremental losses of hearing may be mines have hearing conservation plans, responsible for non-occupational erased by revised baseline audiograms, and only one percent of coal miners are hearing loss that occurs between annual and the true extent of a miner’s hearing currently covered by such plans. audiograms, MSHA has concluded that loss may escape accurate measurement. Some commenters supported annual the physicians or audiologists who Some commenters believed a new audiometric testing, while several others conduct the audiometric tests are in a baseline should be established if the supported periodic audiometric testing position to determine whether any affected miner is away from the mine for but recommended different intervals, hearing loss detected by the test is due at least 6 or 12 months. Another ranging from once a year to once every to non-occupational causes. commenter stated the mine operator three years depending upon the severity The intervals between annual of the noise exposure or of the existing should be allowed to obtain a new audiometric testing conducted under hearing loss. However, none of these baseline for a miner who returns to the final rule must not exceed 12 commenters offered suggestions for the work after working for another mine months. This means that testing once relationship between the severity of a operator, regardless of how long the every calendar year would not be miner’s noise exposure and the miner had been away. These acceptable unless the interval between frequency of audiometric testing. One the tests is 12 months or less. For commenters were concerned about commenter requested clarification as to being held responsible for a miner’s example, an annual audiogram in whether the annual audiometric tests January of one calendar year cannot be hearing loss that results from would be required to be administered overexposure to noise during other followed by testing any later than once each year or once each 12 months. January of the following calendar year. employment. A large number of contract Several commenters questioned how a and transient employees work in the Otherwise, the interval between annual mine operator could be protected from audiograms could extend to nearly 24 mining industry. Additionally, many liability for non-occupational hearing metal and nonmetal mines operate months, an unacceptably long time loss that occurs between the annual period, for the reasons explained above. seasonally or otherwise intermittently audiometric tests. Once baseline throughout the year. As a result, a large audiograms have been obtained, OSHA After a review of comments, the number of miners are typically away requires that an audiogram be offered relevant scientific literature, and from the job site for long periods of annually to each employee exposed at regulations of other governmental time. MSHA agrees that mine operators or above the action level in order to agencies, MSHA has concluded, and the should not be held responsible for a identify changes in hearing sensitivity. final rule reflects, that annual miner’s hearing loss incurred during This allows the use of hearing protectors audiometric testing is both necessary employment at other mines or during to be prescribed or other follow-up and appropriate, and is an integral part extended periods of unemployment. measures initiated before the miner’s of a comprehensive hearing Therefore, the final rule adopts the hearing loss can worsen. OSHA adopted conservation program. proposed provision that allows for the the annual audiometric test requirement Revised Baseline Audiogram revision of the baseline audiograms or because of the potential seriousness of revised baseline audiograms, where one the hearing damage that can occur Paragraphs (c)(1) and (c)(2) of § 62.170 has been established, for those miners within a 2-year period, before the of the final rule, which have been who have been away from their hearing loss is identified by an adopted from proposed §§ 62.140(d)(1) employment at a particular mine for audiogram. and (d)(2), require that the mine periods longer than 6 consecutive MSHA has concluded that annual operator establish a revised baseline months. audiometric testing is necessary for audiogram when:
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(1) the standard threshold shift to confirm that the apparent commenters opposed any exemption revealed by the annual audiogram is improvement is real. that would result in temporary miners persistent; or Paragraph (c)(2) requires revision of receiving less protection than that (2) the hearing threshold shown in the the baseline if the annual audiogram provided to other miners. annual audiogram indicates significant shows significant improvement in OSHA has no exemption for improvement over the baseline hearing level. This provision has been audiometric testing for temporary or audiogram. adopted unchanged from the proposal, seasonal workers, and, like the proposal, These requirements are the same as and provides additional protection to MSHA’s final rule does not provide any those in OSHA’s noise standard, and, in the miner because it allows more exemption for temporary or seasonal response to commenters, MSHA has accurate evaluation of the true extent of miners from the final rule’s audiometric adopted the term used by OSHA of hearing loss that may occur in the testing requirements. MSHA has ‘‘revised baseline audiogram’’ rather future. When a baseline audiogram is determined that such an exemption than ‘‘supplemental baseline revised due to an improvement in would mean that miners who work audiogram’’ used in the proposed rule. hearing sensitivity, the revised baseline intermittently in the mining industry Many commenters favored revising must be considered the original baseline may never receive an audiometric test to the baseline if a standard threshold shift for determining when a standard detect hearing loss, even if they work is persistent. Several commenters threshold shift occurs and for under very noisy conditions, and would suggested that MSHA adopt the quantifying the total reportable hearing never receive any of the protections guidelines of the National Hearing loss under part 50. The latter is reflected required under the final rule for miners Conservation Association for revising in § 62.101 of the final rule, under the who have incurred hearing loss. Although the 6-month time period (12 baseline audiograms, to establish some definition of a ‘‘reportable hearing loss.’’ Finally, one commenter suggested months where a mobile van is used) consistency in determinations. that separate baselines be kept for a allowed under the final rule for MSHA has concluded that allowing standard threshold shift and otologic obtaining an audiogram could revision of the baseline after a standard referrals. This measure is not needed, effectively exclude many temporary or threshold shift has been identified will however, because the final rule requires seasonal miners from the audiometric prevent the same standard threshold that all audiograms be retained as part testing program, prudent mine operators shift from being identified repeatedly. of the audiometric test record under will offer audiometric tests to temporary The annual audiogram on which the § 62.171(b)(2). Revision of the baseline or seasonal miners and not take standard threshold shift is identified audiogram does not permit the advantage of the 6-month period to then becomes the revised baseline destruction of the original baseline avoid offering these miners audiometric audiogram. In addition, MSHA intends audiogram. tests. that each ear be treated separately when the baseline audiogram is revised. If the Temporary and Seasonal Miners Section 62.171 Audiometric Test baseline is revised for both ears when In the preamble to proposed § 62.120, Procedures only one has a standard threshold shift, MSHA solicited comments on how to This section of the final rule detection of a standard threshold shift best protect temporary or seasonal establishes the procedural and in the other ear may not be possible, miners whose occupational noise recordkeeping requirements for the even if the miner has lost a substantial exposures equal or exceed the action audiometric testing conducted under amount of hearing sensitivity. level. MSHA raised this issue because this part. This section specifies the Under the final rule, the revised mines producing certain commodities, frequencies to be used in the testing, baseline audiogram should be compared such as sand, gravel, and crushed stone and requires the mine operator to with future annual audiograms to frequently cease operations during the compile and maintain an audiometric identify a second standard threshold winter months. As a result, miners at test record for each miner tested. The shift. The original baseline audiogram these operations may only work part of requirements of this section are continues to be used to quantify the the year, and protecting the hearing of essentially the same as those proposed total hearing loss, and is considered in these miners can be extremely in § 62.150, with several relatively determining whether the hearing loss problematic, given the long periods minor changes. constitutes a ‘‘reportable hearing loss.’’ when miners are away from the mine Paragraph (a) of this section of the Some commenters favored revising site. final rule adopts the proposed the baseline if the annual audiogram Some commenters believed that the requirement that audiometric testing showed an improvement in hearing. fact that the proposal would allow mine under part 62 be conducted in One commenter recommended that a operators 6 months to arrange for miners accordance with scientifically validated revised baseline be permitted only if the to receive baseline audiograms would procedures. MSHA’s metal and improvement in the miner’s hearing was effectively exclude most temporary or nonmetal noise standards do not consistent for multiple consecutive seasonal miners, because their contain audiometric testing provisions. tests. Another commenter stated that employment relationship with the mine While MSHA’s noise standards MSHA should not adopt the provision operator would end before the deadline applicable to coal mines require for revised audiograms in the final rule, for their audiometric testing had passed. audiometric testing, they do not include because hearing sensitivity does not Other commenters suggested that the any procedural requirements for this improve with noise exposure or use of hearing protectors on the job testing. The final rule does not specify increasing age. While it is true that would adequately protect temporary detailed procedures for audiometric hearing sensitivity does not improve; miners from experiencing an testing, calibration of audiometers, or MSHA recognizes that audiometric tests occupational noise-induced hearing qualifying of audiometric test rooms. can sometimes reflect an apparent loss. One commenter suggested that it Instead, the final rule takes a improvement. Under the final rule, would be too burdensome for a mine performance-oriented approach, not MSHA leaves it to the professional operator to enroll miners who had only to allow flexibility in compliance judgement of the medical professional worked less than one year in the but also to accommodate technology or audiologist to conduct multiple tests audiometric testing program. Several developed in the future. The final rule
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.100 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49613 specifies basic parameters for the testing sound pressure levels acceptable during following manufacturer’s while allowing the physician or the audiometric testing. recommendations, accurate audiometric audiologist to use professional judgment Several commenters suggested, in the testing will be ensured. in selecting the appropriate testing absence of a definition for Under the final rule the individual procedures. ‘‘scientifically validated procedures,’’ who conducts the testing must have the This aspect of the proposal generated that the final rule provide that if the specialized qualifications of a a significant amount of comment. qualified professional who conducts the physician, audiologist, or technician, all Several commenters stated that the audiometric tests certifies the test’s of whom should be knowledgeable and proposed requirement that tests be scientific validity, the mine operator is familiar with scientifically validated conducted in accordance with permitted to rely in good faith on such procedures and capable of exercising ‘‘scientifically validated procedures’’ certification. professional judgment in choosing the was too vague, and recommended that After reviewing the comments, the appropriate testing procedures. Further, the final rule clarify or define the phrase scientific literature, and several the final rule allows the use of any ‘‘scientifically validated procedures.’’ governmental standards, MSHA has scientifically validated procedure, Some commenters believed that if the concluded that the final rule should which provides flexibility for the use of Agency failed to specify the test adopt the proposed performance- new procedures or technology that may procedures that should be followed, oriented approach, and should not be developed in the future. This means audiometric test results would not be include detailed, highly technical that if a new, possibly more accurate, uniform. Other commenters, some of procedures and criteria for conducting procedure is developed and has been whom strongly supported a audiometric testing in the final rule. scientifically validated, the physicians performance-oriented approach to Instead, the final rule adopts the and audiologists who perform testing procedures, suggested that the proposed requirement that audiometric audiometric testing under this part may final rule include an appendix testing procedures be governed by readily adopt its use. specifying the level of testing scientifically validated procedures, Test Parameters performance expected, or at least which would be any method or providing examples of acceptable procedure that has been proven to be Paragraph (a) of § 62.171 of the final procedures that may be followed. effective and is generally recognized by rule, like the proposal, requires that Commenters stated that this would experts in the technical field. Such audiometric tests be pure tone, air allow mine operators to determine if the procedures may be incorporated, for conduction, hearing threshold procedures they have adopted comply example, into consensus standards, examinations, with test frequencies at with the requirements of the final rule. governmental specifications, or military 500, 1000, 2000, 3000, 4000, and 6000 Several commenters recommended regulations, including OSHA’s Hz. The final rule also requires that each specific changes regarding audiometric audiometric testing procedures and ear is to be tested separately. This aspect testing, including audiometric test criteria or the procedures included in of the final rule is consistent both with instruments, calibration procedures, and the three ANSI standards referenced OSHA’s requirements for audiometric audiometric test rooms. Several above. testing frequencies and with NIOSH’s commenters believed that the MSHA anticipates that most recommendations in its 1972 Criteria audiometric testing procedures required audiograms conducted under the final Document. Existing MSHA regulations by the final rule should be identical to rule will employ the procedures do not include any specifications for OSHA’s requirements, which contain specified in OSHA’s noise standard, in audiometric testing. detailed testing procedures in 29 CFR large part because many physicians and A few commenters directly addressed § 1910.95(h) and in associated audiologists are already familiar with the audiometric test parameters in the appendices. Others recommended that those procedures, and many computer proposal. Of these, one commenter the final rule require audiometric testing programs used for or in conjunction specifically supported the test to be conducted in accordance with with audiometric testing are based on frequencies as proposed. A few other several standards of the American that standard. Further, many audiology commenters supported the adoption of National Standards Institute (ANSI), texts and training courses of the Council the test frequencies either in the OSHA including ANSI S3.21–1978, ‘‘Methods for Accreditation in Occupational noise standard or in ANSI S3.21–1978, for Manual Pure-Tone Threshold Hearing Conservation (CAOHC) ‘‘Methods for Manual Pure-Tone Audiometry,’’ which provides detailed reference OSHA’s audiometric testing Threshold Audiometry,’’ and ANSI procedures for conducting audiometric procedures and criteria in detail. S3.6–1996, ‘‘Specification for tests; ANSI S3.1–1991, ‘‘Maximum OSHA’s audiometric testing Audiometers,’’ or a combination of these Permissible Ambient Noise Levels for requirements and associated appendices standards. As stated above, the test Audiometric Test Rooms,’’ which can be found in 29 CFR § 1910.95. To frequencies required by the final rule provides a criterion for the maximum assist the mining community in are identical to those required in background sound pressure levels to complying with the audiometric OSHA’s noise standard. The ANSI obtain a valid audiogram; and ANSI requirements in the final rule, MSHA standards include the additional test S3.6–1996, ‘‘Specification for will post OSHA’s requirements on our frequencies of 250 and 8000 Hz. Other Audiometers,’’ which provides design Internet Home Page at www.msha.gov. commenters supported adding 8000 Hz criteria for various classes of Another possible source of acceptable to the test frequencies included in the audiometers. procedures under the final rule are the proposal. These commenters believed Some commenters suggested that recommendations provided by that adding the frequency of 8000 Hz MSHA specify calibration procedures audiometer manufacturers on would assist the evaluator of the for audiometers. The suggestions audiometer use and calibration (in both audiogram in determining the cause of included requiring daily calibration of the laboratory and the field). These the hearing loss more accurately. audiometers as well as annual equipment manufacturers are in a Commenters pointed out that because laboratory calibration. Other position to issue specific this frequency is standard on commenters recommended that MSHA recommendations on the use and audiometers manufactured since 1974, specify the maximum background calibration of their audiometers. By inclusion of this frequency would not
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OSHA also requires already require that the person characterized by a declining sensitivity employers or audiometric test service conducting the test have minimum to high frequency sounds. This loss providers to maintain an accurate record qualifications, such a certification usually appears first and is most severe of background sound pressure levels in would be unnecessary. at the 4000 Hz frequency, and the ‘‘4000 audiometric test rooms. However, as Some commenters, who believed that Hz notch’’ in the audiogram is typical of discussed above, OSHA’s noise standard requiring mine operators to obtain a noise-induced hearing loss. Continued includes specific procedures for certification for each individual exposure causes the loss to include audiometric testing, and the additional audiogram was unduly burdensome, other audiometric test frequencies, with records required under OSHA’s stated that the final rule should allow 500 Hz being the least affected. While standard are intended to show that the mine operators to obtain a certification 500, 1000, and 6000 Hz are not included required procedures have been for a group of audiograms. in the definition of a standard threshold followed. Without such specific The Agency agrees with commenters shift, MSHA, like OSHA, believes that procedures, these additional records are that the certification requirement set these test frequencies contribute to a unnecessary. OSHA’s noise standard, forth in the proposal would be more thorough audiometric profile and like the final rule, requires that unnecessarily rigid. However, MSHA are helpful in assessing the validity of employers maintain a record of has also concluded that some type of the audiogram as a whole. Testing at audiometric test results. evidence is necessary to indicate that 500 and 1000 Hz makes it easier for an One commenter requested the audiometric tests conducted under audiologist or physician to differentiate clarification of the recordkeeping this part are in accordance with conductive hearing loss from noise- requirement, asking if it was limited to scientifically validated procedures. induced hearing loss, and testing at individual readings for specific miners Therefore, the final rule provides that 6000 Hz allows better differentiation or also included records of area or group audiometric test records required to be between age-induced and noise-induced monitoring. The requirement covers maintained must include evidence that hearing loss, so testing at 8000 Hz is only personal noise exposure the audiograms were conducted in unnecessary. However, this would not determinations, because this accordance with paragraph (a) of this prevent testing at additional information will allow persons section of the final rule, which provides frequencies. evaluating audiometric testing results to that scientifically validated procedures make a better determination regarding must be followed. Such evidence could Audiometric Testing Records the nature of a miner’s hearing loss. include a letter from a physician, The requirements of paragraphs (b)(1) The recordkeeping requirements for audiologist, or qualified technician that through (b)(5) of § 62.171 of the final audiometric testing in the final rule states which audiometric test rule specify which audiometric testing provide essential information to MSHA procedures have been followed. A records a mine operator must maintain. and to health professionals for the billing record that indicates the test They have been adopted from proposed evaluation of a miner’s audiogram. The procedures used would also be § 62.150(c) with one change. Under the information is also necessary for acceptable. Finally, the audiogram itself final rule mine operators are required to identifying the audiograms, for may include information about the test compile an audiometric test record for evaluating whether the audiometric procedures used sufficient to satisfy this each miner tested, including the miner’s tests have been conducted properly, and requirement. Other types of evidence name and job classification, copies of all for determining whether the results are not listed here may also be acceptable of the miner’s audiograms required valid. Further, the information is critical under the final rule, provided they under part 62, evidence that the to the evaluator in determining whether reflect compliance with the procedural audiometric tests were conducted in an identified hearing loss is requirements of the final rule. Evidence accordance with paragraph (a) of this occupationally induced or aggravated by that a group of audiograms were section, any exposure determinations occupational noise exposure. conducted in accordance with required for the miner, and the results of any Section 62.150(b) of the proposal procedures would also be sufficient, follow-up examinations. The proposal would have required mine operators to provided that it makes clear which would have required the mine operator obtain a certification from the physician audiograms are involved. This responds to obtain a certification from the or audiologist responsible for to commenters who believed the physician or audiologist that the conducting audiometric tests under this proposed requirements, which could audiometric testing had been conducted part that such tests had been conducted have been read to require an individual in accordance with scientifically in accordance with scientifically certification for each audiogram, were validated procedures. In lieu of this validated procedures. In its place unnecessarily burdensome. requirement, the final rule provides paragraph (b)(3) of this section of the MSHA agrees that the mine operator greater flexibility by requiring evidence final rule requires that the audiometric would ordinarily not have sufficient that the audiograms were conducted in test record include evidence that the medical knowledge to determine if the accordance with the final rule’s audiometric tests conducted under part tests were properly conducted, and requirements. MSHA’s existing 62 have been conducted in accordance would ordinarily rely on the physician, standards currently contain no with the scientifically validated audiologist, or qualified technician to recordkeeping or record maintenance procedures required under paragraph (a) provide the evidence required under requirements. of this section. this paragraph. The final rule does hold Many commenters raised issues One commenter was of the opinion the mine operator responsible for concerning the proposed requirements that mine operators should be allowed obtaining this evidence from these for audiometric testing records. Several to rely on the professionals certifying professionals—MSHA assumes that commenters proposed that MSHA adopt the audiometric test results, and should mine operators, as a result of their
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MSHA expects that the under it; this added language merely be provided as part of the terms and periods of unemployment experienced affirms this authority. conditions of the service agreement. by miners at those operations generally Section 62.172 Evaluation of Paragraph (c) of § 62.171 of the final will not exceed 6 months, thus ensuring Audiograms rule, which has been adopted with two that these miners’ audiometric records changes from proposed § 62.150(d), will be retained throughout their cycles This section of the final rule has been specifies the location and duration for of employment. adopted unchanged from proposed maintenance of the testing records Under the final rule, ‘‘duration of § 62.160. It establishes the requirements compiled under paragraph (b). In employment’’ is the period of time for evaluating audiograms conducted response to commenters, the final rule between the date of a miner’s initial under part 62. This section requires that does not adopt the proposed hiring and the date on which the miner the mine operator inform the person requirement that the records be is released, quits, retires, or is otherwise evaluating the audiogram of the maintained at the mine site. The final separated. There must be a period of at requirements of this part and provide rule also clarifies that these records least 6 months after formal termination the evaluator with copies of the miner’s must made be available for inspection of employment before a mine operator audiometric test records. Additionally, by an authorized representative of the can destroy the audiometric test records. the mine operator is responsible for Secretary of Labor. MSHA’s existing Moreover, under the final rule, a layoff, having a physician, audiologist, or standards contain no requirements in strike, lockout, furlough, period of leave qualified technician determine if an this area. OSHA standards require that (paid or unpaid), or other temporary audiogram is valid and if a standard audiometric testing records, along with break in service is not considered a threshold shift or reportable hearing loss all other employee medical records formal termination of employment, even has occurred. required to be kept under OSHA if it exceeds 6 months. This section also includes a provision standards, be maintained for at least the MSHA expects that many mine to protect miners’ non-occupational duration of the worker’s employment operators will retain miners’ audiograms medical findings or diagnoses from plus 30 years, with the exception of long after the miners’ employment disclosure to the mine operator and employees who have worked for less ceases, because the records could prove requires a prompt audiometric retest if than one year for the employer. to be relevant if a miner should file a a miner’s audiogram is invalid. Finally, Additionally, the OSHA rule provides subsequent workers’ compensation this section permits, but does not that employee medical records need not claim for hearing loss, especially require, the adjustment of results of be retained beyond the term of because some states allow workers to audiometric tests for age-induced employment if they are provided to the file such a compensation claim many hearing loss. Tables for this purpose are employee upon termination. years after termination of employment. included in the final rule. MSHA received a number of Many commenters took issue with the MSHA’s existing noise standards do comments specifically addressing time proposed requirement that audiometric not address the evaluation of frames for maintaining audiometric test testing records be maintained at the audiograms. The requirements in this records. Commenters recommended mine site, and requested that MSHA section are similar to the requirements several different periods of record permit the records to be stored at a site of OSHA’s noise standard; the few retention beyond the duration of the remote from the mine. These differences are noted below. miner’s employment—6 months, 12 commenters believed maintaining these A number of commenters noted that, months, or 30 years, which is the records at the mine would be although a doctor can distinguish retention period required by OSHA. burdensome, and that it may be much hearing loss that has been caused by Requirements for maintenance and more efficient for many mine operators illness or injury from hearing loss retention of audiometric tests records of to store records at a central site, caused by noise exposure, it is not the U. S. armed forces, including the especially if several small mining possible to distinguish between hearing Navy, the Air Force, and the Army, and operations were in the same general loss from work-related noise exposure several foreign countries require the vicinity. and from non-work-related noise retention of audiometric test records for MSHA agrees with the points made by exposure. These commenters pointed at least the duration of the test subject’s these commenters, particularly in light out that many of their employees were employment, and in most cases for some of the fact that electronic records are very active during their non-working period of time after the termination of becoming more common in the mining hours and had hobbies that could employment. industry, and may be stored on expose them to high sound levels, such MSHA’s rationale in requiring computer at a centralized location. The as woodworking, hunting, motorcycling, retention of audiometric test records for final rule therefore allows mine snowmobiling, etc. These commenters at least 6 months beyond the duration operators to keep audiometric test took issue with the fact that, under the of the miner’s employment is that the records at a location other than the mine proposed rule, mine operators would be miner’s risk of occupational hearing loss site. However, the records must be held responsible for all noise-induced stops with the cessation of employment. stored within sufficient proximity to the hearing loss, regardless of whether it is Retention of audiometric records for mine to allow the mine operator to occupationally related. MSHA agrees an additional 6 months will ensure that produce them to an MSHA inspector that hearing loss may result from many the records remain available for use by within a relatively short time. MSHA causes, not all of which are the mine operator to conduct further expects that in most cases this period occupationally related. Under the final evaluations should the miner return to will be no longer than one business day. rule physicians and audiologists have employment within that period. This 6- The final rule also clarifies that these the obligation to determine if the month retention period does not place records must be available for review by hearing loss was the result of or an unduly heavy paperwork burden on an authorized representative of the aggravated by occupational noise mine operators, but also addresses the Secretary of Labor. MSHA inspectors exposure or a medical condition seasonal operations in the metal and already have the authority to review aggravated by the use of hearing
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Under thresholds between the two ears; rule allows correction of audiograms for MSHA’s final rule, the person unusual frequency patterns that are not hearing loss due to aging. conducting the audiometric testing and typical of noise-induced hearing loss; MSHA acknowledges that evaluation of the audiogram is required thresholds that are not repeatable; or an determining whether hearing loss is to use scientifically validated unusually large hearing loss incurred in occupationally related is not always procedures, and therefore has some less than a year. straightforward. However, physicians discretion over which procedures are One commenter advocated that the and audiologists conducting used. No comments were received final rule require the supervising audiometric testing should routinely ask addressing this aspect of the proposal, physician or audiologist to establish about a miner’s employment history and and it has been adopted unchanged in specific criteria for a technician to both occupational and non-occupational the final rule. follow in determining whether the noise exposures, in order to make Under paragraphs (a)(2)(i) and audiogram is valid or a standard reasoned assessments and conclusions (a)(2)(ii) of this section, which have threshold shift or a reportable hearing about the source of any hearing loss that been adopted from § 62.160(a)(2) of the loss has occurred. This comment has may be detected in the course of proposal, the mine operator must have not been adopted in the final rule, audiometric testing. If the miner’s a physician or an audiologist, or a because the rule already requires that a occupational noise exposures are qualified technician under the direction qualified technician work under the minimal, and yet the miner has incurred or supervision of a physician or an supervision or direction of a physician a severe hearing loss, this should audiologist, determine if an audiogram or an audiologist. The physician or indicate to the physician or audiologist is valid and if a standard threshold shift audiologist is ultimately responsible that he or she must look beyond the or reportable hearing loss has occurred. under the final rule for ensuring that the workplace for the cause of the hearing This requirement is consistent with technician performs audiometric testing loss. The doctor can make an educated provisions in OSHA’s noise standard. and evaluation with the requisite level determination that a hearing loss is Several commenters stated that only of proficiency. MSHA has therefore occupational based on certain patterns those physicians with experience and concluded that it is unnecessary to commonly seen in occupational loss. expertise in hearing and hearing loss include a specific requirement for Some of these indicators are— should be permitted to review making this determination. 1. If the hearing loss is consistent in audiograms. MSHA has concluded that Another commenter challenged the both ears; physicians should be included among proposed requirement that the mine 2. If the loss is more severe in the those professionals who may evaluate operator instruct the physician, higher speech frequencies; audiograms, for reasons addressed in audiologist, or qualified technician to 3. If the patient has a history of greater detail in the preamble discussion determine if an audiogram is valid, exposures to noisy workplaces; and for § 62.170 of the final rule. maintaining that mine operators should 4. If the patient has no evidence of Other commenters stated that the final rely on the medical professional’s illness or injury to the head or ears and rule should define what constitutes an judgement instead. there is no history of familial hearing invalid audiogram, in light of the fact MSHA agrees with commenters that loss or noisy pastimes (rock music, that physicians, audiologists, and mine operators typically would not have motorcycles, hunting). MSHA has qualified technicians, under the the expertise to determine the validity concluded that taking this approach in direction of a physician or audiologist, of an audiogram. However, the final rule such instances of uncertainty provides are required to determine whether the places on mine operators the the best protection for miners. audiogram is invalid. One commenter responsibility to ensure that miners are Paragraph (a)(1) of § 62.172 of the recommended that the final rule adopt protected from occupational hearing final rule is adopted from proposed the Head and Neck Surgery referral loss. One part of an effective hearing § 62.160(a)(1), and requires that the criteria of the American Academy of conservation program is regular mine operator inform the person Otolaryngology for determining whether audiometric testing for miners at risk, evaluating the audiogram of the an audiogram is invalid. and MSHA has concluded that it is requirements of part 62 and provide the MSHA has not adopted the suggestion appropriate to require mine operators to evaluator with copies of the miner’s above and does not provide a definition ensure that the professionals who audiometric test records. for invalid audiogram, or a list in the conduct and evaluate audiometric tests The intent of this provision is to final rule of the deficiencies that could do so in accordance with the ensure that physicians and audiologists render an audiogram invalid. Instead, requirements of the final rule. are sufficiently familiar with the final the final rule requires that this Paragraph (a)(2)(ii) also requires the rule’s requirements to evaluate miners’ assessment be made by qualified evaluator of the audiogram to determine audiograms in compliance with the professionals—physicians, audiologists, whether a miner has incurred a standard regulations. For example, the evaluator and qualified technicians—and relies on threshold shift in hearing. should be aware of how the final rule their professional judgment and Determination of a standard threshold defines a standard threshold shift, the expertise in determining whether an shift triggers specific remedial actions, criteria in the final rule for audiometric audiogram is valid. These professionals designed to prevent additional hearing retesting or medical follow-up, are free to use whatever criteria they loss. Commenters raised a number of procedures for correction for age- deem appropriate in making such a issues concerning the appropriate induced hearing loss, and recordkeeping determination, including the American definition for ‘‘standard threshold requirements. OSHA’s noise standard Academy of Otolaryngology referral shift,’’ defined in § 62.101 of the final requires employers to provide the criteria referenced above. In any case, it rule, which are addressed in detail in evaluator of the audiograms with a copy would not be possible to provide an the preamble discussion of that section.
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Paragraph (a)(2)(ii) of this section of MSHA has concluded that some would preclude company physicians or the final rule also requires the evaluator protection must be provided to audiologists from either conducting of audiograms to determine if there has individual miners’ medical information audiometric tests or evaluating been a ‘‘reportable hearing loss.’’ Under that is not occupationally related. audiograms. MSHA agrees that medical part 50 of MSHA regulations, mine Accordingly, to safeguard the privacy of professionals conducting audiometric operators must notify MSHA within ten individual miners, the final rule adopts testing who are employees of the mine working days of detection of a miner’s the proposed provision that requires operator should have the same access to hearing loss. ‘‘Reportable hearing loss’’ mine operators to instruct the physician test findings and diagnoses, and are is defined in § 62.101 of the final rule or audiologist conducting the bound by the same strictures on as a change in hearing sensitivity for the audiometric test not to reveal to the confidentiality as professionals who are worse relative to a miner’s baseline mine operator information that is not independently employed. However, audiogram, of an average of 25 dB or occupationally related. MSHA has concluded that clarification more at 2000, 3000, and 4000 Hz in Although MSHA agrees that it is of this interpretation in the preamble is either ear. Several commenters conceivable that some non-occupational sufficient, and no specific provision disagreed with the proposed definition medical conditions (such as an inner ear needs to be included in the final rule. of ‘‘reportable hearing loss,’’ and this condition that affects the miner’s Several commenters pointed out that issue is discussed in detail in the balance) discovered during an the proposal would require the mine preamble in § 62.101. audiometric examination could have a operator to instruct the physician or Paragraph (a)(3) of this section of the bearing on a miner’s safety at the mine audiologist not to reveal information to final rule adopts proposed site, it has concluded that concerns for the mine operator, but would not § 62.160(a)(3), with one addition, and the miner’s privacy outweigh the mine require a qualified technician requires the mine operator to instruct operator’s need for such information. performing the audiometric testing to be the physician, audiologist, or qualified Any greater access to results of similarly instructed. This commenter technician not to reveal to the mine audiometric testing could discourage believed that technicians should be operator, without the written consent of miners from submitting to this given the same direction by the mine the miner, specific findings or diagnoses voluntary testing. In any case, the miner operator. As stated above, MSHA has unrelated to the miner’s exposure to is free to share such information with adopted this comment in the final rule occupational noise or the wearing of the mine operator if he or she chooses for consistency. The expectation is that hearing protectors. In response to to do so. the physician, audiologist, or qualified Other commenters were concerned commenters, the final rule includes technician will receive the instruction about the impact the proposed qualified technicians among those who from the mine operator and will ensure restriction would have on the ability of would receive this instruction. that the information will be protected. Although OSHA’s air quality standards mine operators to defend against Under paragraph (a)(4) of § 62.172 of and benzene and lead standards contain hearing loss claims filed under state the final rule, which has been adopted similar provisions, neither MSHA’s nor workers’ compensation laws. These OSHA’s noise standard currently commenters were afraid that the without change from § 62.160(a)(4) of includes such a restriction. restriction would limit mine operators’ the proposal, the mine operator must This aspect of the proposal elicited access to relevant information on non- obtain the audiometric test results and many comments. A number of occupationally related conditions the interpretation of the results from the commenters opposed the proposed discovered during the course of person evaluating the audiogram within restriction, for a variety of reasons. audiometric testing, and would 30 days of the testing. OSHA’s noise Some stated that if the physician or therefore prevent them from using this standard does not specify a deadline for audiologist discovers a condition that information as a defense. Nothing in the the evaluation of audiograms. could affect the safety or health of the final rule would prevent a mine Some commenters stated that 30 miner or other miners in the workplace, operator from arranging a medical calendar days may not be sufficient for the mine operator should be provided examination for a miner to determine a mine operator to obtain audiometric with that information, and the miner the validity of a workers’ compensation test results from the test provider. should not be permitted to withhold it. claim. Such an examination would be Several commenters expressed concerns Others believed that if mine operators outside the purview of this rule and not about this deadline, and felt that it are required to pay for the testing, they subject to the limitations imposed under would be unrealistic, particularly if a are entitled to have access to the this section. Additionally, information mobile test van provides the information. Still others believe that that is relevant to a workers’ audiometric testing. A number of because mine operators are responsible compensation claim may be subject to commenters suggested the deadline be for protecting miners against noise- the discovery process in civil litigation extended to 60 days. One other induced hearing loss, all information and may be required to be produced commenter believed that 75 days would relating to the miner’s hearing loss, under state law. The restriction in the be appropriate. Other commenters whether occupationally related or not, final rule would not preclude such believed it would be unfair to penalize should be made available to mine disclosure. the mine operator, who has little or no operators or persons employed by One commenter suggested that the control over the promptness with which operators to administer hearing final rule should make clear that the test provider furnishes test results to conservation programs or who are physicians and audiologists who are the operator. Several commenters responsible for the working conditions employees of the mine operator have the suggested that the final rule require and job assignments of individual same access to test findings and mine operators to do what they can to miners. On the other hand, one diagnoses as any other physician or obtain test results within 30 days, but commenter stated that voluntary audiologist, even though the company- should not penalize operators for late audiometric testing results should be employed professionals could be results when the delay is beyond their treated as confidential medical considered to be agents of the mine control. In contrast, one commenter information, and not be disclosed to operator. The commenter believed that recommended that the time limit be anyone without the miner’s consent. a literal interpretation of this provision reduced to 15 days.
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MSHA has determined that a 30- the final rule allow 60 days for a mine (2) Finding the age at which the most calendar-day time limit for the operator to offer a miner a retest. One recent audiogram was taken and evaluation of audiograms is reasonable, other commenter recommended that recording the corresponding values of and is necessary to prevent undue MSHA adopt the provisions in OSHA’s age corrections at 2000 Hz through 4000 delays in the evaluation of the standard for audiometric retests if a Hz; and (3) Subtracting the values found audiogram and in notification of the standard threshold shift is found. in step (1) from the value found in step miner of the results. Because § 62.175 of Under the final rule, audiometric (2). The differences calculated represent the final rule allows mine operators 10 retesting where a miner’s initial that portion of the change in hearing working days after receipt of test results audiogram has been determined to be that may be due to aging. For example: to notify a miner of those results, more invalid must occur within 30 calendar the miner is a 32-year-old male. The than 40 days may pass from the date of days, provided that any medical audiometric history for his right ear is an audiometric test until the miner pathology that may have prevented the shown in decibels below. receives notification of the test results. taking of a valid audiogram has In those cases where an audiometric improved to the point where a valid Audiometric test fre- retest is appropriate, miners may not retest can be conducted. It should be Miner's age quency (Hz) receive their test results more than 100 noted that the 30-day period does not 2000 3000 4000 days after the initial testing. MSHA has begin until the medical pathology concluded that increasing the deadline causing the problem has improved. The 26 ...... 5 5 10 to 60 or 75 days would result in provision in paragraph (b)(2) for a retest 27 * ...... 0 0 5 unacceptably long delays in miner after detection of a standard threshold 28 ...... 0 0 10 notification. Moreover, contrary to the shift allows the mine operator to 29 ...... 0 5 15 30 ...... 5 10 20 assertions of commenters, MSHA does substantiate that the shift has occurred not believe that mine operators have 31 ...... 10 20 15 and confirm that the hearing loss 32 * ...... 10 10 25 little or no control over the promptness detected is permanent before taking with which test results will be required corrective actions such as The audiogram at age 27 is considered furnished. Under the final rule mine miner retraining and review of the operators will either directly employ the baseline since it shows the best effectiveness of noise controls at the hearing threshold levels. Asterisks have test providers, in which case meeting operator’s mine. In the event that the the 30-day time frame will be directly been used to identify the baseline and miner declines to submit to a retest, the most recent audiogram. A threshold within their control, or contract for this 30-day period within which corrective service, in which case they may ensure shift of 20 dB exists at 4000 Hz between action must be taken would begin from the audiograms taken at ages 27 and 32. that compliance with the 30-day the date of the miner’s refusal of a retest. deadline is a requirement of the (The threshold shift is computed by MSHA has concluded that 30 days is contract. Accordingly, MSHA has subtracting the hearing threshold at age a reasonable deadline for audiometric concluded and the final rule reflects 27, which was 5, from the hearing retesting, recognizing that 30 days may that the mine operator must obtain the threshold at age 32, which is 25). A not be sufficient time for a retest if a requisite evaluation of an audiogram retest audiogram has confirmed this mine operator must rely on a mobile test within 30 days. shift. The contribution of aging to this Paragraph (b)(1) of § 62.172 of the van to provide the retesting. However, change in hearing may be estimated in final rule, which is adopted from where retesting is necessary, MSHA the following manner. Go to Table 62– § 62.160(b)(1) of the proposal, requires believes that it should be conducted as 3 and find the age correction values, in the mine operator to offer an quickly as possible, and the mine dB, for 4000 Hz at age 27 and age 32. audiometric retest within 30 calendar operator may find it necessary to send days of receiving a determination that the miner to the nearest available testing Frequency (Hz) facility rather than waiting for a mobile an audiogram is invalid, provided any 2000 3000 4000 medical pathology has improved to the test van. point that a valid audiogram may be Paragraph (c) of § 62.172, which is Age 32 ...... 5 7 10 obtained. If the results of an annual adopted unchanged from proposed Age 27 ...... 4 6 7 audiogram demonstrate a standard § 62.160(c), allows the adjustment of Difference ...... 1 1 3 threshold shift or a reportable hearing audiometric test results for the loss, paragraph (b)(2) of this section contribution of age-induced hearing loss The difference represents the amount of allows a mine operator to offer the in determining whether a standard hearing loss that may be attributed to miner one retest within 30 calendar threshold shift or reportable hearing loss aging in the time period between the days of receiving the results. This will has occurred. Adjustment of baseline audiogram and the most recent allow mine operators to verify the audiometric test results for age-induced audiogram. In this example, the results of the annual audiogram. The hearing loss is optional under the final difference at 4000 Hz is 3 dB. This value mine operator may then substitute the rule; however, any such adjustment is subtracted from the hearing level at results of the retest for the annual must be made to both the baseline and 4000 Hz, which in the most recent audiogram. These provisions are similar annual audiograms, in accordance with audiogram is 25, yielding 22 after to provisions in OSHA’s noise standard, the procedures set forth in paragraphs adjustment. Then the hearing threshold which permits a retest within 30 days to (c)(1) through (c)(3). For each in the baseline audiogram at 4000 Hz (5) confirm a standard threshold shift, but audiometric test frequency, determine is subtracted from the adjusted annual which does not specifically require a from Table 62–3 or 62–4 the age audiogram hearing threshold at 4000 Hz retest if the audiogram is judged to be correction values for the miner by: (1) (22). Thus the age-corrected threshold invalid. Finding the age at which the baseline shift would be 17 dB (as opposed to a Few comments were received on this audiogram or revised baseline threshold shift of 20 dB without age aspect of the proposal. One commenter audiogram was taken and recording the correction). stated that scheduling miners for a retest corresponding values of age corrections OSHA’s noise standard also permits can be difficult, and recommended that at 2000 Hz through 4000 Hz; the use of age-induced hearing loss
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.109 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49619 correction factors at the employer’s found to have incurred standard the final rule defines ‘‘medical option. OSHA’s rationale for inclusion threshold shifts, when the primary pathology’’ as ‘‘a condition or disease.’’ of these correction factors is that they cause of the shift is the aging process. Several commenters maintained that aid in distinguishing between The age correction procedures and physicians should not be included occupationally induced and age- tables included in the proposal and among those who may determine that a induced hearing loss. This is adopted in the final rule are those that miner needs a follow-up evaluation, particularly important because the were used by NIOSH in its 1972 Criteria because physicians who are not hearing pattern of hearing loss due to aging Document on Occupational Exposure to specialists may not be qualified to closely resembles that of hearing loss Noise. Although there may be slight determine that a miner needs a follow- due to noise exposure. variations in adjustment at individual up examination. MSHA has not adopted Many commenters who addressed this frequencies among similar tables the suggestion of these commenters in issue supported the use of age developed by other researchers, the light of the licensing and ethical correction factors. Some of these NIOSH age values are similar to those of standards that apply to physicians. The commenters believed that failure to other widely accepted and applied age- Agency expects that physicians will adjust audiometric test results based on induced hearing loss data bases, such as exercise professional judgment in a miner’s age would result in inaccurate the database of the U.S. Public Health assessing whether they possess the data, and may indicate that there is a Service, the data used by Robinson and experience and qualifications to make higher incidence of hearing loss due to Burns, and those of Passchier-Vermeer. the required medical determinations. workplace noise exposure than actually The NIOSH data are derived from a This issue of the qualification of would be occurring. Some commenters highly screened population, that is, one physicians is addressed in greater detail stated that many older miners would be which excluded individuals with any in the preamble discussion of § 62.170. If the physician or audiologist found to have a standard threshold shift. significant noise exposure on the job, off believes that the suspected pathology As a result, mine operators would be the job, or during military service. Use that prevents taking a valid audiogram required to take unnecessary corrective of a single set of age values will is related to occupational noise measures at their mines to address these standardize the process of determining exposure or to the wearing of hearing miners’ hearing loss, which may be standard threshold shifts nationwide. protectors, the final rule requires the unrelated to occupational noise Proposed Tables 62–3 and 62–4 have mine operator to pay for the miner’s exposure. One commenter stated that been adopted under the same numbers follow-up medical evaluations. Several adjustment for age-induced hearing loss in the final rule. is a widely accepted practice, and is commenters to the proposed rule were supported by the scientific community Section 62.173 Follow-Up Evaluation concerned that this could be read to and by the relevant scientific literature. When an Audiogram Is Invalid require the mine operator to pay for a Some commenters opposed the use of follow-up examination for an ear This section of the final rule has been age corrections, because they were infection, if the audiologist or physician adopted from § 62.170 of the proposal, concerned that it could interfere with merely ‘‘believes’’ that the infection is and establishes requirements for a the detection of noise-induced hearing aggravated by occupational noise follow-up evaluation of a miner’s loss in some miners, and because exposure or the wearing of hearing hearing if a valid audiogram cannot be necessary corrective actions would not protectors. These commenters stated obtained because of a suspected medical be taken, and the miners’ hearing would that the mine operator should be be permitted to deteriorate even further. pathology caused or aggravated by noise required to pay only for treatment of NIOSH currently recommends that exposure or the use of hearing conditions that actually result from audiograms not be corrected for age, protectors. This section also provides noise exposure that occurs or hearing based on the reasoning that it is that, in the event that the medical protectors that are used at the mine inappropriate to apply age correction pathology is unrelated to noise exposure operator’s facility. factors from a population to an or to the use of hearing protectors, the The final rule reflects MSHA’s individual. NIOSH maintains that if a mine operator must instruct the conclusion that mine operators have worker’s audiogram is to be corrected physician or audiologist to inform the primary responsibility for work-related for age, the hearing loss of a non- miner of the need for an examination. medical problems. Under the final rule, occupational noise-exposed group with Finally, mine operators must instruct if the physician or audiologist the same demographic characteristics as the physician, audiologist, or qualified determines that the suspected medical the worker should be used. technician not to reveal to the mine pathology is unrelated to the miner’s MSHA has concluded that the operator findings or diagnoses unrelated occupational noise exposure or to the optional use of age correction factors is to the miner’s occupational noise wearing of hearing protectors, the mine appropriate, and has adopted in the exposure or the wearing of hearing operator must instruct the medical final rule the proposed provisions that protectors. MSHA’s current noise professional to inform the miner of the allow it. Such adjustments are standards have no provisions that need for an otological examination. The consistent with current scientific address follow-up evaluations. final rule does not require the mine practice and with OSHA’s noise Paragraph (a) of § 62.173 of the final operator to pay for this examination, standard. rule provides that if a valid audiogram which will be at the miner’s expense. MSHA agrees that not all individuals’ cannot be obtained due to a suspected Another commenter suggested that hearing is affected to the same degree by medical pathology of the ear, and the mine operators be required to pay for age. Additionally, studies have shown physician or audiologist evaluating the follow-up evaluations only if there has that individuals in environments free audiogram believes that the problem been a determination of significant from noise exposure display little was caused or aggravated by the miner’s occupational noise exposure. The final evidence of age-induced hearing loss. exposure to noise or wearing of hearing rule does not adopt this comment, However, MSHA agrees with the protectors, a miner must be referred for because a determination of the need for commenters who stated that failure to a clinical-audiological or otological a clinical-audiological or an otological allow age correction in the final rule evaluation, as appropriate, at the mine examination under this section should would result in many miners being operator’s expense. Section 62.101 of not be based solely on a miner’s noise
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.111 pfrm08 PsN: 13SER2 49620 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations exposure, but should be made after a of ‘‘medical pathology’’ in § 62.101 of safeguard the privacy of individual review of a miner’s audiometric records the final rule is not limited to illness, miners, the final rule adopts the and a finding of a suspected medical and encompasses not only a ‘‘disease’’ proposed provision that requires mine pathology related to occupational noise but also a ‘‘condition’’ affecting the ear. operators to instruct the physician or exposure or the wearing of hearing Paragraph (b) provides that if the audiologist not to reveal to the mine protectors. In some cases information on physician or audiologist has concluded operator information not occupationally a miner’s noise exposure may be scarce that the suspected medical pathology of related. A more detailed discussion of or nonexistent. Although noise exposure the ear which prevents obtaining a valid the basis for MSHA’s conclusion on this measurements provided by the mine audiogram is unrelated to the miner’s issue can be found in the preamble operator may form part of the basis exposure to occupational noise or the under § 62.172(a)(3). upon which the qualified reviewer wearing of hearing protectors, the mine Section 62.174 Follow-Up Corrective makes a determination, the final rule operator must instruct the physician or Measures When a Standard Threshold does not adopt the commenter’s audiologist to inform the miner of the Shift Is Detected suggestion that mine operators be need for an otological evaluation. In required to pay for follow-up such cases, the final rule imposes no This section of the final rule, which examinations only when the miner has financial obligation on the mine adopts the requirements of proposed been exposed to significant operator. § 62.180, establishes the corrective occupational noise. Paragraph (c) of § 62.173 adopts, with measures that must be taken by a mine The preamble to the proposal noted one addition, the proposed requirement operator when a miner is determined to that the type of follow-up evaluation that the mine operator instruct the have incurred a standard threshold shift that should be conducted as a result of physician or audiologist not to reveal to in hearing sensitivity. This section the suspected medical pathology the mine operator any specific findings provides that, unless a physician or (clinical-audiological or otological) or diagnoses unrelated to the miner’s audiologist determines that the standard depends upon the specific exposure to noise or the wearing of threshold shift is neither work-related circumstances in each case. Standards hearing protectors without the written nor aggravated by occupational noise found in the international community consent of the miner. As under the exposure, mine operators must take and the U. S. armed forces vary to some similar requirement in § 62.172, specified corrective actions within 30 degree regarding certain elements, such commenters suggested adding qualified calendar days after receiving evidence as the extent of follow-up examinations. technician to the list of persons that the or confirmation of a standard threshold A clinical-audiological evaluation is mine operator must instruct. MSHA has shift. ‘‘Standard threshold shift’’ is generally more comprehensive, adopted this suggested change in the defined in § 62.101 of the final rule as intensive, and accurate than the routine final rule. a change in hearing sensitivity for the audiometric testing conducted to Some commenters were concerned worse relative to the miner’s baseline identify a hearing loss, and may be that this restriction would be audiogram (or revised baseline warranted if, for example, an unusually counterproductive and harmful to the audiogram) of an average of 10 dB or large threshold shift occurs in one year miner in cases where the miner’s more at 2000, 3000, and 4000 Hz in given relatively low noise exposures. An medical condition should be better either ear. otological evaluation, on the other hand, understood by the mine operator in The corrective actions that mine is a medical procedure conducted by a order to allow the miner to be more operators are required to take under medical specialist such as an effectively protected on the job. This § 62.174 of the final rule when a miner otolaryngologist to identify a medical aspect of the proposal, which is similar experiences a standard threshold shift pathology of the ear, such as an acoustic to the restriction in § 62.172(a)(3) of the include: Retraining the affected miner in neuroma, a type of tumor. Another more final rule, was the subject of several accordance with § 62.180 of the final common reason for an otological comments. Some commenters were rule, providing the miner with the examination is for the removal of opposed to the proposed restriction for opportunity to select a different hearing impacted ear wax, which reduces a variety of reasons. Some of these protector, and reviewing the hearing sensitivity and can be commenters stated that if the physician effectiveness of any engineering and aggravated by the use of earplug-type or audiologist discovers a condition that administrative controls to identify and hearing protectors. Audiometric testing could affect the safety or health of the correct any deficiencies. can indicate the existence of such miner in the workplace, the mine A number of commenters supported medical pathologies. operator should be provided with that the need for intervention by the mine Making the determinations under this information, and the miner should not operator when a miner has experienced section will not require a diagnosis by be permitted to withhold it. One a standard threshold shift. Several of a physician-specialist confirming a commenter was concerned about the these commenters stated that it should medical pathology. The rule is intended impact the proposed restriction would not matter whether or not a standard to allow the audiologist or physician have on the ability of mine operators to threshold shift is work-related, and that authorized to review the audiograms to defend against hearing loss claims filed intervention should be required in any make a determination as to whether a under state workers’ compensation case to prevent further hearing loss. One follow-up examination is appropriate- laws. Others maintained that because of these commenters stated that it is and who pays for it. Accordingly, the the mine operator is responsible for probably not realistic to believe that the word ‘‘suspected’’ precedes the words protecting miners against noise-induced mining industry can identify outside ‘‘medical pathology’’ in this section. hearing loss, all information relating to causes of hearing loss. Another Finally, one commenter suggested the miner’s hearing loss, whether commenter was of the opinion that changing the term ‘‘medical pathology’’ occupationally related or not, should be miners whose audiograms indicate such in this paragraph to ‘‘medical made available to the mine operator. a degree of hearing loss should still be condition’’, because the term MSHA has concluded that some provided with information and training ‘‘pathology’’ implies illness. The final protection must be given to individual on how they can protect themselves. rule does not adopt the suggestion of miners’ medical information that is not Still another commenter stated that the this commenter, because the definition occupationally related. Accordingly, to final rule should require additional
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.113 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49621 actions, including examination of the importance of regular audiometric addressed in greater detail in the noise exposure of the affected miner or testing, to ensure that the hearing loss preamble discussion of § 62.160. of other miners with similar does not progress. Also as indicated in Several commenters supported the occupations. This commenter strongly the preamble to the proposal, the addition of a requirement that the miner supported a requirement that the mine required training may be conducted in use a hearing protector and the mine operator investigate the cause of the conjunction with annual refresher operator enforce its use when a standard miner’s standard threshold shift. training under 30 CFR Part 48, but only threshold shift is detected. The final One commenter believed that if the training will be conducted within rule also requires that the mine operator effective training and audiometric 30 days of the detection of the standard provide and ensure that miners wear testing would make corrective measures threshold shift, the time frame hearing protectors under certain after the detection of a standard established in this section. conditions, including when the miner threshold shift unnecessary. This Paragraph (b), like the proposal, incurs a standard threshold shift and is commenter added that miners should be requires the mine operator to provide exposed to noise at or above the action encouraged to take responsibility for the miner with an opportunity to select level. A more detailed discussion of their own health. Several other a hearing protector, or a different mandatory use of hearing protectors is commenters stated that the proposed hearing protector if the miner has included under § 62.130 of the requirements for corrective action previously selected a hearing protector, preamble, which addresses the underscored a need for mandatory from among those offered by the mine permissible exposure level. participation by miners in audiometric operator in accordance with § 62.160. Paragraph (c) of this section of the testing. These commenters maintained Several commenters advocated the final rule requires the mine operator to that an effective hearing conservation inclusion of the additional requirement review the effectiveness of any engineering and administrative noise program must require miners to submit that the hearing protector be checked to controls, in order to identify and correct to such tests. ensure that it is in good condition, and MSHA has concluded that it is any deficiencies. The implementation replaced if necessary. These essential that mine operators be and maintenance of engineering and commenters also recommended that required to take certain corrective administrative noise controls when miners should be encouraged to select a measures to prevent further miners are subjected to noise exposures hearing protector providing greater deterioration of miners’ hearing above the permissible exposure level is noise reduction. sensitivity after a standard threshold the primary method for reducing shift has been detected. A hearing loss The final rule, like the proposal, miners’ noise exposure and their risk of of 10 dB is sufficiently significant to allows miners to select their own hearing loss. Because ineffective warrant intervention by a mine operator, hearing protectors. The effectiveness of engineering and administrative controls unless it is determined the loss is not any hearing protector depends on a may be the primary cause of a miner’s work-related. If miners are experiencing number of factors, only one of which is standard threshold shift, the final rule that level of occupationally related its noise reduction rating value. Even requires the mine operator to review the noise-induced hearing loss, as though a miner may not select the effectiveness of existing controls and determined by a physician or hearing protector with the highest noise update or modify them to enhance the audiologist, it is a clear indication that reduction rating, factors such as protection provided to miners. OSHA’s the noise controls in place at the work comfort, fit, and personal preference are existing noise standard does not require site have been ineffective. In such critical in ensuring that the miner will such a review when a standard situations further action is appropriate fully utilize this essential piece of threshold shift is detected. to determine why the miner has not personal protective equipment. Some commenters supported the been adequately protected. Moreover, there is no standardized proposed review of engineering and Paragraph (a) of § 62.174 of the final objective method to determine the administrative controls when a miner rule requires that the miner be retrained, degree of protection a given hearing experiences a standard threshold shift. which includes the instruction required protector will provide a miner. MSHA However, several commenters noted by § 62.180 of the final rule, under has therefore determined that requiring that a mine operator should not be which training must address such topics that miners be encouraged to select a required to review the effectiveness of as the effects of noise on hearing, the hearing protector based primarily or engineering and administrative noise value and effective use of hearing exclusively on the protector’s noise controls if the standard threshold shift protectors, the operator’s and miner’s reduction rating value would not be occurs in a single miner and can be respective tasks in maintaining mine well advised, and this comment has positively attributed to the inaction of noise controls, and the value of therefore not been adopted in the final that miner. audiometric testing. Commenters on this rule. The final rule also does not adopt This comment has not been adopted aspect of the proposal generally commenters’ suggestions that mine in the final rule. Mine operators are supported the training requirement. operators be required to check the fit responsible for protecting miners from As indicated in the preamble to the and condition of the hearing protector overexposures to noise at the mine site. proposal, if the noise controls in place and replace it, if necessary, because The mine operator must determine are effective—including the training— these concerns are already addressed in which are the best and most protective this hearing loss should not be other sections of the final rule. As controls for the particular operation. occurring. Providing the miner with § 62.180 of the final rule requires that The degree to which the noise controls retraining after the miner has miner training address the care, fitting, that have been implemented rely on the experienced a standard threshold shift and use of hearing protectors, miners actions of individuals may have some is intended to ensure that the miner is will be trained to evaluate the condition bearing on how well the controls work. not inadvertently being overexposed to of their hearing protectors and notify the Effective engineering noise controls noise because of a lack of awareness mine operator when the condition of the protect the miner without the need for about effective use of noise controls or protector has deteriorated and needs to the miner’s active participation. If the hearing protectors. This retraining may be replaced. The issue of selection and controls in place rely too heavily on the also emphasize to the miner the effectiveness of hearing protectors is participation of a miner and have
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.114 pfrm08 PsN: 13SER2 49622 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations proven to be inadequate (as evidenced providing for miner notification of conservation program. Immediate by the detection of a standard threshold audiometric test findings and for feedback to the miner at the completion shift), a prudent mine operator will notification to MSHA of any instances of the test provides the greatest benefit, explore implementation of engineering of ‘‘reportable hearing loss,’’ as defined because that is the point at which controls that will be effective regardless in § 62.101 of the final rule. miners typically have the greatest of the miner’s actions. The mine Paragraph (a) of this section of the interest in information on the effects of operator determines working conditions final rule requires that mine operators noise on their hearing, and are more at the mine site and is responsible for notify the miner in writing of the results likely to take action, such as wearing ensuring the design, implementation, of an audiogram or a follow-up hearing protectors conscientiously; and use of effective controls to protect evaluation within 10 working days of stringently complying with miners from overexposure to noise and receiving the results. There are no administrative noise controls; or resulting hearing loss. existing MSHA regulations that impose continuing to submit to audiometric Although the proposed rule would such a requirement. testing. not have provided for the transfer of a MSHA received no comments The Agency realizes that it may not be miner with a diagnosed occupational opposing a miner notification practical to inform miners immediately hearing loss to a low-noise work requirement, although several of the results of their audiometric tests. environment, MSHA did solicit commenters believed that mine However, because of the importance of comments on whether a miner transfer operators should be required to notify a the information, it is necessary to provision was necessary. Some miner of test results only when the establish a maximum time frame for commenters stated that it would not be results indicate a significant shift in the mine operators to inform miners of the appropriate to include a miner transfer miner’s hearing level, consistent with audiometric test findings and results. provision in the final rule, arguing that OSHA requirements. These commenters Therefore, the final rule adopts the miners could manipulate audiogram believed that miner notification was not requirements of the proposed rule and results (for example, by listening to loud warranted if the audiometric test allows mine operators up to 10 working music prior to the test) in an attempt to indicated no additional hearing loss. days after the receipt of test results to Commenters disagreed on the length force mine operators to move them to inform the miner. This means that mine of the period within which such different, more desirable jobs. Other operators will have up to two weeks to notification should occur. Several commenters supported the concept of a make this notification, which is a commenters recommended that MSHA miner transfer provision, arguing that sufficient time frame for this adopt the provision in OSHA’s noise this is appropriate when other efforts to notification. halt the progression of the miner’s standard that requires employee MSHA has also concluded that it is hearing loss have failed and that miners notification within 21 days. Other appropriate to require written who were transferred should suffer no commenters recommended a 15-day notification to miners of their test loss in wages or benefits as a result, deadline, while still others believed that results. Important that miners are made similar to the provisions in MSHA’s part a 30-day deadline was appropriate. The aware of their test results, and written 90 regulations for coal miners who have commenters who supported a longer notice minimizes the risk of evidence of black lung disease. period believed that 10 days was The preamble to the proposed rule insufficient to allow mine operators to misunderstanding on the part of miners. suggested that a miner transfer program review the audiograms and to provide Some commenters stated that would be extremely complex for mine the required notification, particularly if notification is necessary only when a operators to administer, and may be large numbers of miner audiograms standard threshold shift has occurred, quite infeasible for the metal and were conducted and processed at the but MSHA believes that notification of nonmetal mining industry. The majority same time. One commenter stated that good results serves to reinforce effective of metal and nonmetal mines are miners should be informed of a standard practices and strengthens the effects of smaller mines, many of which would be threshold shift at the time of the test, a hearing conservation program. unable to rotate miners with hearing and provided with the results of Because of the confidentiality of loss to other, less noisy assignments on audiograms within 5 days rather than audiometric test results, it would be a long-term basis. Although MSHA 10. inappropriate, as suggested by a encourages mine operators to transfer Although no commenter specifically commenter, for the final rule to require miners who have incurred a hearing objected to the requirement that the a mine operator to share an individual impairment to jobs with reduced noise miner notification be in writing, several miner’s test results with other miners. exposure, it has concluded that a miner commenters stated that the method of The final rule therefore does not adopt transfer provision is not feasible at most notification should be left to the this comment. small mining operations, due to the discretion of the mine operator. Another Paragraph (a)(1) of this section adopts small number of employees and the commenter recommended that mine without change § 62.190(a)(1) of the limited number of positions with low operators notify miners in a timely proposal, and requires that the mine noise exposure to which miners with manner and also share the results with operator inform the miner of the results hearing loss could be transferred. other miners during annual refresher and interpretation of the audiometric Because of the significant feasibility training, apparently based on the belief test, including any finding of a standard problems presented by mandatory miner that if miners hear of co-workers’ threshold shift or reportable hearing transfer and the lack of consensus in the hearing losses, it might serve to loss. This differs from OSHA’s noise mining community on the advisability reinforce their own understanding of the standard, which only requires of a transfer program, the final rule does need for noise controls and the notification of a confirmed standard not adopt a miner transfer provision. importance of using hearing protectors. threshold shift. The requirements of this After considering the comments, paragraph ensure that miners receive Section 62.175 Notification of Results; MSHA has concluded that informing timely information of the results of their Reporting Requirements miners of the results of their audiometric tests, and can take This section of the final rule is audiometric tests in a timely manner is appropriate actions in conjunction with identical to § 62.190 of the proposal, critical to the effectiveness of a hearing the mine operator, in order to reduce
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.116 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49623 further occupational noise-induced miner’s baseline audiogram, of an section of the final rule, that a mine hearing loss. average of 25 dB or more at 2000, 3000, operator is not required to report a Paragraph (a)(2) of § 62.175, like the and 4000 Hz in either ear. The issue of miner’s hearing loss to MSHA if a proposal, requires that the mine the definition of reportable hearing loss physician or audiologist has determined operator notify the miner of the need is discussed in the preamble under that the loss is neither work-related nor and reasons for any further testing or § 62.101. aggravated by occupational noise evaluation, if applicable. An important goal of the final rule is exposure. However, some commenters One commenter stated that a mine to clarify the level of hearing loss that advocated that any hearing loss be operator could not notify miners of the is reportable to MSHA under part 50. presumed to be non-occupationally reason for further testing or evaluation, MSHA acknowledges that its current related, and that the final rule should because under the proposal, adopted in reporting requirements have resulted in require the physician or audiologist to § 62.173(c) of the final rule, mine inconsistent reporting; some mine determine definitively that the hearing operators would not be told of findings operators have reported even small loss is work-related before the hearing or diagnoses when the condition hearing losses, while other operators loss would be reportable. These diagnosed is not work-related. MSHA only report a miner’s hearing loss when commenters objected to the fact that the has concluded that this limitation does the miner has received an award of proposal seemed to presume that any not present an obstacle to mine compensation. In other cases, mine hearing loss detected would be both operators notifying miners of the need operators have not reported a miner’s noise-induced and work-related. and reasons for further testing or hearing loss even when an award of The final rule reflects MSHA’s evaluation. If the problem encountered compensation was made because the determination that it is reasonable to is occupationally related, the mine miner had retired. Inconsistent place the responsibility on the operator will be informed of the specific reporting of miners’ hearing loss may physician or audiologist to determine reasons why a follow-up is needed. If also stem from the fact that the when a hearing loss is unrelated to the the problem is not occupationally definition of compensable hearing loss miner’s occupational exposure to noise related, the mine operator will be under workers’ compensation laws or to the wearing of hearing protectors. informed only that a follow-up is varies widely from state to state. For Although in some cases it may not be warranted and must pass that these reasons, MSHA had concluded easy to determine whether an identified information on to the miner as part of that its miner hearing loss data under hearing loss is work-related or not, the the notification required under this part 50 tends to underestimate the final rule follows the approach of the section. MSHA expects that in most if prevalence or degree of hearing loss in proposal that the loss would be not all cases miners will already be the mining industry. reportable in the absence of evidence aware of both the need and reasons why Providing a specific definition in the that the hearing loss is not work-related. a follow-up is recommended, because final rule for ‘‘reportable hearing loss’’ MSHA has concluded that this approach the person performing the audiometric as it is used under part 50 is intended is the most protective for miners, and tests will convey this information to to eliminate exclusive reliance on has adopted it in the final rule. them during the course of the test. workers’ compensation awards as a Several commenters stated that the Notification by the mine operator will criterion for defining when noise- rule is unclear regarding who would be reinforce any information that may have induced hearing loss must be reported. responsible for reporting a loss when a been provided to the miner during the Nevertheless, part 50 will still require miner has been employed by several test procedure. that mine operators report to MSHA operators. MSHA specifically solicited Paragraph (b) of § 62.175 of the final hearing loss for which an award of comments in the proposal on how to rule, like the proposal, requires mine compensation has been made if the capture data on work-related noise- operators to inform MSHA when a hearing loss has not been previously induced hearing loss that is not miner has incurred a reportable hearing reported. Two examples of such cases discovered until after the miner’s loss as defined in part 62, unless the are: (1) If the miner incurred the hearing employment is terminated, or that the physician or audiologist has determined loss before the current mine operator miner had accumulated from work with the loss is neither work-related nor conducted the baseline or pre- several employers. Commenters did not aggravated by occupational noise employment audiogram and subsequent provide any data, information, or exposure. This provision parallels testing did not measure a reportable suggestions. The final rule requires the existing requirements in part 50, which loss; and (2) if the miner has not been mine operator currently employing the require mine operators to report a in a hearing conservation program or affected miner to report the hearing loss miner’s hearing loss whenever a has not received an audiometric test no matter where the miner may have physician determines that it is work- while employed by the mine operator. incurred the loss, provided it has not related, or whenever an award of In determining what degree of been previously reported. compensation is made. Section 50.20–6 occupational hearing loss should be The final rule does not require that specifically includes noise-induced reportable under part 50, MSHA gave mine operators report the same hearing loss as an example of a serious consideration to the fact that a ‘‘reportable hearing loss’’ to MSHA each reportable occupational illness. hearing loss of 25 dB diminishes the year that the miner works at the mine. However, § 62.101 of the final rule now quality of life. The hearing loss that is An additional report to MSHA under provides an explicit definition of reportable under the final rule, although part 50 of a hearing loss involving the ‘‘reportable hearing loss,’’ in order to not equal to material impairment, is same miner is required only if the miner clarify mine operators’ compliance substantial enough to diminish the has incurred an additional 25-dB shift responsibilities and promote the quality of life, and it provides a reliable (50-dB shift from the original baseline). development of improved data on indication of the effectiveness of the However, each ear should be treated hearing loss in the mining community. existing action level and permissible independently in terms of reporting Section 62.101 of the final rule adopts exposure level. hearing loss, unless the reportable loss the proposed definition of ‘‘reportable Several commenters expressed occurs in both ears during a particular hearing loss’’ as a change in hearing support for the proposed provision, year. Although not specifically required sensitivity for the worse, relative to the which is adopted unchanged in this in the final rule, MSHA anticipates that
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.117 pfrm08 PsN: 13SER2 49624 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations mine operators will report under part 50 controls; and the purpose and value of exposure is at or above the action level, the actual average hearing loss, the audiometric testing and a summary of an exposure which MSHA has ear(s) in which the reportable loss the procedures. Few commenters identified to be hazardous. occurred, and whether the audiograms specifically addressed the topics in the MSHA has determined that were corrected for age-induced hearing noise training program. However, specialized training on the hazards of loss. several commenters stated that it was noise and the importance of hearing important to stress the selection, fitting, conservation is necessary because, as Section 62.180 Training use, and limitations of hearing several commenters pointed out, part 48 This section establishes specific protectors. training typically does not routinely requirements for training miners under Although all commenters appeared to include detailed training on noise and the final rule. These requirements are support the concept of training miners hearing loss. One reason for this, as very similar to requirements proposed on noise-related topics, they disagreed commenters also pointed out, is that under §§ 62.120(b)(1) and 62.130. Under about whether a separate training there are a number of safety and health the final rule, training of miners is one requirement was warranted. Some topics required to be covered under part of the elements of a hearing commenters believed that training 48 in a relatively short period of time. conservation program. Mine operators miners under this part was unnecessary This does not allow the type of in-depth are required to enroll miners in hearing because miners are already required to training on a narrow topic that is conservation programs under § 62.120, receive training under existing MSHA contemplated under this final rule. and to provide training under § 62.180 regulations in part 48, which require Several commenters took issue with to miners whose noise exposure equals regular training of miners on a variety the proposed requirement that the or exceeds the action level under of safety-and health-related topics, training be provided ‘‘at the time’’ that § 62.120. Miners are also required under including the purpose of taking noise the miner’s noise exposure exceeds the § 62.160(a)(1) to be trained before they measurements. Some of these action level. These commenters stated select hearing protectors. Retraining the commenters were concerned that the that the language should be modified to miner, including the instruction training requirements under this part allow the mine operator more flexibility required under this section, is also would create additional recordkeeping regarding how and when training is required under § 62.174(a) when the requirements for mine operators and conducted. Some commenters miner is determined to have would not serve any purpose, and they recommended one week, while others experienced a standard threshold shift. opposed adding additional training suggested that mine operators be Section 62.180(a) requires that mine requirements under this part. allowed 30 days to satisfy this operators provide miners with initial Other commenters stated that there is requirement, in order to accommodate training under this section within 30 not enough time to cover all the topics varying shift schedules and to develop days of their enrollment in a hearing required under part 48 training, and and conduct an effective training conservation program. Retraining at therefore separate training under this program. One commenter recommended least every 12 months thereafter must be part was appropriate, to ensure that that the final rule specify at least one provided if a miner’s exposure miners were well informed about the hour of initial training be given and at continues to equal or exceed the action hazards of noise and how to ensure that least 30 minutes of annual retraining be level under § 62.120. The proposal they are adequately protected. Some of given. would have required that mine these commenters supported training on MSHA agrees that the language of the operators provide a miner with initial work-related noise hazards as well as proposed rule could be read to allow training at the time that the miner’s proper fitting of hearing protectors. mine operators little time to provide exposure exceeded the action level. In They argued that miners need training training under this part, and the final response to commenters who were to make them aware of the damage rule allows mine operators 30 days to concerned that the proposal did not set acoustical energy can do to hearing, and provide the training after a miner has a deadline for such training, the final that the proposed rule seemed to suggest been enrolled in a hearing conservation rule requires that initial training be that there was no need to train workers program. Under § 62.120 of the final conducted within 30 days of a miner’s until they have been enrolled in a rule, mine operators must enroll a miner enrollment in the hearing conservation hearing conservation program. These in a hearing conservation program when program. OSHA’s noise standard commenters advocated training as a the miner’s noise exposure equals or includes training requirements that are preventive measure rather than as after- exceeds the action level. This time similar to those in the final rule. the-fact treatment. frame will ensure that miners receive Paragraphs (a)(1) through (a)(7) of In the preamble to the proposed rule, the necessary training in a timely § 62.180 of the final rule, like § 62.130(a) MSHA stated that there is considerable manner, while at the same time of the proposal, establish specific precedent for requiring training as part providing mine operators with a requirements for the training and of hearing conservation programs. As reasonable amount of time to provide retraining of miners. Under the final indicated in the preamble, Suter (1986) the training. rule, the mine operator must provide the states, ‘‘Workers who understand the The final rule does not provide miner with instruction in the areas of: mechanism of hearing and how it is lost detailed requirements for the training the effects of noise on hearing; the will be more motivated to protect provided by the mine operator. Instead, purpose and value of wearing hearing themselves.’’ Other researchers concur like other performance-oriented aspects protectors; the advantages and with this opinion (Wright, 1980; Royster of this final rule, mine operators have disadvantages of the hearing protectors et al., 1982). Moreover, the first line of the flexibility under this section to to be offered; the care, fitting, and use defense against risks in mining has determine how best to provide the of the hearing protector worn by the always been training. Accordingly, the training as well as which programs are miner, and the various types of hearing final rule provides for annual best suited to conditions at their mines. protectors offered by the mine operator; instruction to enhance awareness of The final rule requires that certain the general requirements of part 62; the noise risks, operator requirements, and topics be covered by this training, but mine operator’s and miner’s respective available controls. This training is does not specify how long the training tasks in maintaining mine noise required for any miner whose noise must last nor what qualifications the
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However, mine operators responsible for providing adequate commenters stated that confidential may satisfy the requirements of the final training to miners under this final rule. medical records should be accessible to rule and part 48 with the same training, For the same reason, the proposed government agencies only with the provided that training complies with requirement that the training provider written consent of the miner. MSHA has both sets of requirements. sign the certification has not been a statutory right to have access to MSHA intends that the training adopted. records, including medical records. required under the final rule address the Some commenters strongly urged that Section 103(h) of the Federal Mine advantages and disadvantages of the final rule allow training certification Safety and Health Act of 1977 (Mine different types of hearing protectors, to be maintained at locations other than Act) provides that: including earmuffs, earplugs, and canal the mine site, since it may be more In addition to such records as are caps as they relate to the needs of the efficient for some mine operators to specifically required by this Act, every miner and the specific conditions at the store records at a central location. operator of a coal or other mine shall mine. In addition, the mine operator MSHA agrees, particularly in light of the establish and maintain such records, make should discuss the specific advantages fact that electronic records are becoming such reports, and provide such information, and disadvantages of any special more common in the mining industry as the Secretary or the Secretary of Health, hearing protectors offered. and may be stored on computer at Education, and Welfare [now Health and MSHA recommends that mine centralized locations. The final rule Human Services] may reasonably require operators tailor the training provided from time to time to enable him to perform therefore allows mine operators to store his functions under this Act * ** under the final rule to the operations at training certifications at a location other their mines, and may choose to than the mine site. However, they must The Agency believes that access to emphasize certain topics more than be stored in sufficient proximity to the medical records is essential; the records others. Although the final rule provides mine to be produced for an MSHA will be valuable in enforcement of the a basic framework for minimum areas of inspector within a relatively short final rule, will be useful in research into instruction, the training requirements period of time. MSHA expects that in the effects of occupational noise provided here are intended to be most cases this will be no longer than exposure, and will help to evaluate the performance-oriented and allow for one business day. effectiveness of hearing conservation training to be tailored to the individual Mine operators must retain the most programs. mine’s circumstances or to individual recent training certification for as long Another commenter noted that the needs. as a miner is in the hearing conservation preamble stated that mine operators Effective training of miners serves to program and for at least 6 months would have to provide authorized enlist miner participation in hearing thereafter. There were only a few representatives of the Secretaries with conservation, which is critically comments on this issue. One commenter immediate access to all records required important for proper use of hearing suggested that the training records under this part. It was not MSHA’s protectors and compliance with should be maintained for 12 months, intent that records be provided applicable administrative noise rather than 6 months, beyond the immediately to authorized controls. Effective training of miners miner’s enrollment in a hearing representatives of the Secretaries. also helps to ensure that miners will conservation program, but did not MSHA agrees that requiring immediate submit to regular audiometric testing, explain why that would be preferable. access to records to authorized which is completely voluntary on the The final rule adopts the proposed representatives of the Secretaries might part of miners under the final rule. requirement that training records be be too restrictive or burdensome on the Studies have shown a correlation kept as long as the miner is in the mine operator. Although the preamble between instruction and the amount of hearing conservation program and for at to the proposal contained the term protection afforded a miner by the use least 6 months thereafter. As stated in ‘‘immediate,’’ the final rule does not. of hearing protectors. These include the proposed preamble, the retention Following current practice, MSHA Merry et al. (1992), Park and Casali period is short and not burdensome— intends that authorized representatives (1991), Barham et al. (1989), and Casali only the most recent certifications must of the Secretaries have access to records and Lam (1986). be retained and only for 6 months after within a reasonable amount of time that Section 62.180(b) of the final rule the miner’s enrollment in the hearing does not hinder the authorized adopts the proposed requirement that conservation program has ended. These representatives’ conduct of business. In the mine operator certify the date and records will serve to allow MSHA most cases MSHA expects that this will type of training given each miner and inspectors to verify that the required be no longer than one business day. maintain the miner’s most recent training has been provided. MSHA solicited comment on what certification for as long as the miner is actions would be required, if any, to enrolled in the hearing conservation Section 62.190 Records facilitate the maintenance of records in program and for at least 6 months The requirements of proposed electronic form by those mine operators thereafter. The final rule does not adopt §§ 62.200 and 62.210 are combined in who desire to do so, while ensuring the proposed requirement that the § 62.190 of the final rule, and address access in accordance with these person conducting the training sign the access to and transfer of records requirements. The Agency received certification, nor that the certification be required to be kept under this rule. The several comments supporting electronic maintained at the mine site. final rule defines ‘‘access’’ as the right storage of records, but no specifics A few commenters recommended that to examine and copy records. MSHA’s regarding actions required to facilitate the miner be required to sign the final rule is essentially the same as the maintenance of the records in training certificate. This comment has OSHA’s requirements. electronic form. not been adopted in the final rule. Under paragraph (a), as in the As in the proposal, paragraph (a) of MSHA does not believe that requiring proposal, the mine operator must the final rule also provides that, upon the miner to sign a certificate furthers provide authorized representatives of written request, the mine operator must
VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.120 pfrm08 PsN: 13SER2 49626 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations provide, within 15 calendar days of the miners’ representative access only to to any private organizations. Under the request, access to records to miners, training records and exposure records, final rule, a private organization may former miners, miners’ designees, and not to confidential medical records, the only have access if a miner selects the representatives of miners. The first copy proposed rule language was unclear on organization as his or her designee. In must be provided at no cost, and any this distinction. Paragraph (a)(2) of this that case, the organization would have additional copies at reasonable cost. section of the final rule clarifies the access as the miner’s designee to all Several commenters supported the intent of the proposed rule that miners’ records required to be kept under this provisions of access and transfer of representatives designated under part 40 part for that individual miner. records, but suggested that MSHA have have access to training certifications One commenter maintained that the a separate standard, as OSHA does. The compiled in accordance with § 62.180(b) miner’s designee should not be required provisions in this final rule are similar of the final rule, and to notices of to have written permission to see his or to those in other health standards exposure determinations in accordance her records when no other person with proposed in recent years by MSHA and with § 62.110(d). Paragraph (a)(2) does access is required to have it. The are similar to OSHA’s. MSHA and not provide for access to medical commenter argues further that if this is NIOSH have statutory rights to access of records by the part 40 miners’ due to the confidentiality of medical records, but since MSHA does not have representative. This is consistent with records, then anyone should be required generic recordkeeping and access the requirements of the Mine Act, and to have the written permission of the requirements, including recordkeeping responds to commenters who were miner, including MSHA and NIOSH. and retention requirements in the concerned about maintaining the However, these agencies have a substantive noise regulation will confidentiality of miners’ medical statutory right to access to records and facilitate compliance. This will provide records. do not need the written consent of the the regulated community with better The final rule does not adopt the miner, but a designee does not and clarity regarding applicable provision in proposed § 62.200(a)(1) that would therefore need written requirements. would have provided former miners authorization to access records that may Paragraph (a)(1) of this section of the with access to all records that the mine contain personal, private information. final rule remains relatively unchanged operator would be required to maintain Paragraph (a)(2) requires that any from the proposal and provides that a under part 62. Instead, the final rule representative of miners designated miner, or a miner’s designee with the provides that any former miner may under part 40 of this title must have miner’s written consent, has access to have access to records which indicate access to noise training certifications all the records that the mine operator is his or her own noise exposures. This required under § 62.180(b) as well as required to maintain for that miner revision results from MSHA’s any notice of exposure determination in under this part. Several commenters recognition that the Mine Act gives accordance with § 62.110(d) of this part asked whether the term ‘‘miner’s former miners limited access to records. for the miners he or she represents. designated representative’’ used in Section 103(c) of the Mine Act explicitly Several commenters stated that the § 62.200(a)(1) of the proposal referred to provides that ‘‘[s]uch regulations [those miners’ representative should not have the representative designated by two or dealing with toxic substances and access to miners’ records unless the more miners under part 40 of MSHA’s harmful physical agents] shall also make miner has given written consent. One regulations. In fact, the term ‘‘miner’s appropriate provisions for each miner or commenter stated that MSHA should designated representative’’ used in former miner to have access to such change this section to provide access § 62.200(a)(1) of the proposal was records as will indicate his own only to the individual miner involved. intended to refer to a representative exposure to toxic materials or harmful Several commenters stated that MSHA specifically designated by the miner to physical agents.’’ Paragraph (a)(3) has should clarify that the miners’ have access to records. MSHA agrees therefore been added to the final rule to representative will only have access to that the terms used in the proposed rule make clear that a former miner may the training certificate. are imprecise; the final rule now have access to those records which MSHA intends that the miners’ substitutes the term ‘‘miner’s designee’’ indicate his or her own noise exposures, representative have access to training in paragraph (a)(1) for ‘‘miner’s but not to other records that are required certifications and exposure designated representative.’’ The term to be kept by the mine operator under determination records for miners they ‘‘miner’s designee’’ has also been this part, as would have been required defined in § 62.101 of the final rule as under the proposal. represent, without the written consent ‘‘an individual or organization to whom One commenter stated that the of individual miners. Providing access a miner gives written authorization to operator should not be responsible for to training certifications is consistent exercise a right of access to records.’’ providing access to records for anyone with the Agency’s part 48 training These changes are intended to make other than the affected employee unless regulations at §§ 48.9 and 48.29, which clear that the ‘‘miner’s designee’’ such employee is totally incapacitated, require training certificates for each referred to in this section is not a arguing that review of the preamble and miner to be available for inspection by representative of miners designated the section-by-section analysis provides the miners’ representative. Further, under part 40. no rationale for including persons other section 103(c) of the Mine Act states: Paragraph (a)(2) clarifies that the than the employee to have access to The Secretary, in cooperation with the miners’ representative referred to is the records. MSHA has determined, Secretary of Health, Education, and Welfare, representative designated under part 40 however, that miners should have the [now Health and Human Services] shall issue of the regulations. Section 62.200(a)(2) right to designate someone to access regulations requiring operators to maintain of the proposal used the ambiguous records on their behalf, if they so desire. accurate records of employee exposures to term ‘‘miners’ representative’’ and left potentially toxic materials or harmful For example, a miner who is ill can physical agents which are required to be doubt in some commenters’ minds as to authorize a designee (who may be a monitored or measured under any applicable whether this was the miners’ family member) to retrieve a copy of his mandatory health or safety standard representatives under part 40. or her records. promulgated under this Act. Such regulations Commenters expressed concern that Several commenters stated that shall provide miners or their representatives although the Mine Act gave the part 40 records should not be directly accessible with an opportunity to observe such
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Ophthalmology and Otolaryngology, The final rule does not adopt 63:236–238, March–April 1959. proposed paragraph (b) of this section, Paragraph (b)(2) is identical to proposed § 62.210(b), requiring the American Academy of Otolaryngology, which would have required an operator, Committee on Hearing and Equilibrium, upon termination of a miner’s successor operator to use the baseline and the American Council of employment, to provide the miner (at no audiogram, or revised baseline Otolaryngology Committee on the Medical cost) a copy of all records that the audiogram as appropriate, obtained by Aspects of Noise, ‘‘Guide for the operator is required to maintain for that the original operator for determining the Evaluation of Hearing Handicap,’’ Journal individual miner under this part. The existence of a standard threshold shift of the American Medical Association, or reportable hearing loss. MSHA 241(19):2055–2059, May 11, 1979. majority of commenters stated that it American Industrial Hygiene Association would be unduly burdensome to supply believes that requiring successor mine operators to maintain the prior baseline (AIHA), Letter to EEPA; ‘‘Revise Hearing records to all terminated employees, Protection Device Labeling,’’ Federal News, that the provision was redundant with audiogram will provide miners with the The Synergist, November 1995. paragraph (c), and that records should greatest possible degree of protection. American Iron and Steel Institute v. OSHA, only be provided to those employees Otherwise, if a new baseline were (AISI–I) 577 F. 2d 825, 832–835 (3d Cir. who provide a written request for them. allowed to be established by the arrival 1978). MSHA agrees that mine operators of a successor mine operator, the record American Iron and Steel Institute v. OSHA, of any existing hearing loss would be (AISI–II) 939 F. 2d 975, 980 (D.C. Cir. should not have to provide copies of 1991). records to miners unless requested to do wiped out and reporting or corrective action postponed. The Agency did not American Textile Manufacturers Institute, so. Paragraph (c) of this section of the Inc., v. Donovan, Secretary of Labor, et al., final rule, therefore, like the proposal, receive any comments on this provision, 452 U.S. 490, 508–509 (1981). allows persons who have access to and paragraph (b)(2) is adopted as Barham, T.D. et al., ‘‘Improving the records to request a copy of all records proposed. Protection Afforded by Earmuffs to from the mine operator. MSHA believes VIII. References Employees Who Are Exposed to Noise,’’ that this requirement will provide Noise Control Engineering Journal, miners necessary information about Abel, Sharon M. and Diane Rokas, ‘‘The 33(2):67–76, September–October 1989. Effect of Wearing Time on Hearing Bartsch, R. et al., ‘‘High-Frequency their health. Proposed paragraph (b) has Protector Attenuation,’’ Journal of Audiometry in the Evaluation of Critical therefore not been adopted in the final Otolaryngology, 15(5):293–297, 1986. Noise Intensity,’’ International Archives of rule. Acoustical Society of America, ‘‘American Occupational and Environmental Health, Paragraph (a)(3), which is identical to National Standard Methods for Manual 61(5):347–351, March 1989. proposed 62.200(c), states that when a Pure-Tone Threshold Audiometry,’’ ANSI Baughn, W.L., ‘‘Relation Between Daily Noise person with access to records requests a S3.21–1978 (ASA 19–1978), American Exposure and Hearing Loss Based on the copy of a record, the first copy must be Institute of Physics, New York, NY, pp. 1– Evaluation of 6,835 Industrial Noise provided without cost to that person, 7, June 7, 1978. Exposure Cases,’’ AMRL–TR–73–53 (AD and any additional copies requested by Acoustical Society of America, ‘‘American 767 204), Aerospace Medical Research National Standard Specification for Sound Laboratory, Wright-Patterson Air Force that person must be provided at Level Meters,’’ ANSI S1.4–1983 (ASA 47– Base, OH, p. 28, June 1973. reasonable cost. Several commenters 1983), American Institute of Physics, New Behar, Alberto, ‘‘Field Evaluation of Hearing suggested that MSHA define York, NY, pp. 1–18, February 17, 1983. Protectors,’’ Noise Control Engineering ‘‘reasonable cost’’ so that mine operators Acoustical Society of America, ‘‘American Journal, 24(1):13–18, January–February can properly determine whether they National Standard Specification for 1985. are complying with the requirements of Personal Noise Dosimeters,’’ ANSI S1.25– Berger, E.H., ‘‘Hearing Protector Performance: this part when charging for additional 1991 (ASA 98–1991), American Institute of How They Work—and—What Goes Wrong copies. The Agency expects mine Physics, New York, NY, pp. 1–10, October in the Real World,’’ EARLOG 5, E*A*R operators to charge reasonable copying 24, 1991. Division, Cabot Corporation, Indianapolis, Acoustical Society of America, ‘‘American IN, 1980. costs and labor rates which are generally National Standard Maximum Permissible Berger, E.H., ‘‘Responses to Questions and applicable in their geographical Ambient Noise Levels for Audiometric Test Complaints Regarding Hearing and Hearing locations for the same or similar Rooms,’’ ANSI S3.1–1991 (ASA 99–1991), Protection (Part I),’’ EARLOG 8, E*A*R services and which may vary somewhat American Institute of Physics, New York, Division, Cabot Corporation, Indianapolis, from place to place. Therefore, the final NY, pp. 1–14, December 24, 1991. IN, 1981. rule does not adopt this comment. Acoustical Society of America, ‘‘American Berger, E.H., ‘‘Attenuation of Earplugs Worn Paragraph (b)(1) is similar to proposed National Standard Specification for in Combination With Earmuffs,’’ EARLOG § 62.210(a), requiring the mine operator Audiometers,’’ ANSI S3.6–1996, American 13, E*A*R Division, Cabot Corporation, to transfer all records required to be National Standards Institute, Inc., New Indianapolis, IN, 1984. York, NY, pp. 1-33, January 12, 1996. Berger, E.H., ‘‘Ear Infection and the Use of maintained by this part, or copies of Adera, T. et al., ‘‘Assessment of the Proposed Hearing Protection,’’ EARLOG 17, E*A*R them, to a successor mine operator who Draft American National Standard Method Division, Cabot Corporation, Indianapolis, must maintain the records for the length for Evaluating the Effectiveness of Hearing IN, 1985. of time required by this part. Several Conservation Programs,’’ Journal Of Berger, E.H. et al., ‘‘Presumed Noise-Induced commenters supported the provision as Occupational Medicine, 35(6):568–573, Permanent Threshold Shift Resulting from proposed. One commenter stated that June 1993. Exposure to an A-weighted Leq of 89 dB,’’ MSHA should clarify that this AFL-CIO v. Brennan, 530 F. 2d 109 (3d Cir. Journal of the Acoustical Society of requirement does not apply to a 1975). America, 64(1):192–197, July 1978. successor operator hiring a miner who Ambasankaran, M. et al., ‘‘Occupational Berger, E.H., ‘‘Details of Real World Hearing Noise Exposure and Hearing Levels,’’ Protector Performance as Measured in the has never worked at that mine location. American Industrial Hygiene Association Laboratory,’’ Noise-Con 81 Raleigh, NC, pp. MSHA considers paragraph (b)(1) clear Journal, 42:551–555, July 1981. 147–152, June 1981. in stating that the mine operator must American Academy of Ophthalmology and Berger, E.H., ‘‘Hearing Protection Devices,’’ transfer all records required to be Otolaryngology, Committee on Ch. 10 in Noise & Hearing Conservation maintained by this part to a successor Conservation of Hearing, ‘‘Guide for the Manual (4th Edition), ed. Elliott H. Berger
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et al., American Industrial Hygiene Noise-Induced Hearing Loss: A Review of Lempert, Barry L. and Richard G. Edwards, Association, Akron, OH, 1986, pp. 319– Science and the Law, and Proposed ‘‘Field Investigations of Noise Reduction 381. Reforms,’’ Saint Louis University Law Afforded by Insert-Type Hearing Berger, E.H., ‘‘Development of a Laboratory Journal, 30:719–729, 1986. Protectors,’’ American Industrial Hygiene Procedure for the Estimation of the Field Forging Industry Association v. Secretary of Association Journal, 441(12):894–902, Performance of Hearing Protectors,’’ Labor, 773 F. 2d 1436, 1444 (4th Cir. 1985). December 1983. Proceedings, 1992 Hearing Conservation Giardino, Dennis A. and George Durkt, Lescouflair, G. et al., ‘‘Hearing Loss Among Conference, UKY BU156, University of ‘‘Evaluation of Muff-Type Hearing Miners Claiming Compensation,’’ Archives Protectors as Used in the Mining Industry,’’ Kentucky and NIOSH, Lexington, KY, p. of Otolaryngology, 106:602–609, October U.S. Department of Labor, Informational 44, April 1992. 1980. Bertrand Robert A. and Jean Zeidan, Report IR 1222, pp. 1–21, June 1994. Marraccini, Leonard C., et al., ‘‘Summary of ‘‘Retrospective Field Evaluation Of HPD Giardino, Dennis A. and George Durkt, Noise Control For Mining Machinery,’’ Based On Evolution Of Hearing,’’ ‘‘Evaluation of Muff-Type Hearing Mine Safety and Health Administration, Proceedings of the 6th International Protectors as Used in the Mining Industry,’’ Congress, Nice, France, pp. 21–24, July American Industrial Hygiene Association U.S. Department of Labor, pp. 1–183, 1986. 1993. Journal, 57:264–271, 1996. Martin, R.H. et al., ‘‘Occupational Hearing Burns, W. and D.W. Robinson, ‘‘Hearing and Goff, Richard J. and William J. Blank, ‘‘A Loss Between 85 and 90 dBA,’’ Journal of Noise in Industry,’’ Department of Health Field Evaluation of Muff-Type Hearing Occupational Medicine, 17(1):13–18, and Social Security, London: Her Majesty’s Protection Devices,’’ Sound and Vibration, January 1975. Stationary Office, 1970. 18:16–22, October 1984. Melnick, William et al., Occupational Casali, John G. and Siu T. Lam, ‘‘Effects of Green, William W. et al., ‘‘Effectiveness of Noise—Volume I, The Ohio State User Instructions on Earmuff/Earcap Insert-Type Hearing Protectors (Earplugs) University Research Foundation Final Sound Attenuation,’’ Sound and Vibration, in the Workplace,’’ Proceedings, 1989 Report, RF Project 761779/712233, for the pp. 26–27, May 1986. Industrial Hearing Conservation U.S. Department of Labor Contract No. J– Casali, John G. and James F. Grenell, ‘‘An Conference, UKY BU149, University of 9–E–9–0166, pp. 1–290, December 1980. Exploratory Study of Moderate Physical Kentucky and NIOSH, Lexington, KY, p. Melnick, William, ‘‘Damage Risk Criteria,’’ Activity and Selected Design Attribute 30, April 1989. Ch. 12 in Forensic Audiology, ed. M.B. Effects on Earmuff Attenuation,’’ American Hempstock, T.I. and E. Hill, ‘‘The Kramer and J.M. Armbruster, University Industrial Hygiene Association Journal, Attenuations of Some Hearing Protectors Park Press, Baltimore, MD, pp. 223–258, 50:480–485, September 1989. As Used In The Workplace,’’ American 1982. Occupational Hygiene Association Journal, Casali, John G. and Min-Young Park, ‘‘A Merry, Carol J. et al., ‘‘The Effect of Fitting 34(5):453–470, 1990. Regression-Based Methodology for Procedure on Hearing Protector Hodge, David C. and G. Richard Price, Efficient Prediction of Broadband ‘‘Hearing Damage Risk Criteria,’’ Ch. 6 in Attenuation,’’ Ear and Hearing, 13(1):11– Attenuation of Hearing Protectors,’’ Noise Noise and Audiology, ed. David M. 18, 1992. Control Engineering Journal, 38(3):97–108, Lipscomb, University Park Press, Mines Accident Prevention Association May-June 1992. Baltimore, MD, pp. 167–191, 1978. Ontario, ‘‘An Analysis of Occupational Chung, David Y. and Richard Hardie, ‘‘The Hopkinson, Norma T., ‘‘Prevalence of Middle Diseases In The Ontario Mining Industry Performance of Circumaural Hearing Ear Disorders in Coal Miners,’’ U.S. 1985–1989,’’ Report No. 9102, February Protectors by Dosimetry,’’ Journal of Department of Health and Human Services 1991. Occupational Medicine, 25(9):679–682, (NIOSH) Publication No. 81–101, June MSHA, Program Policy Manual, Volume IV, September 1983. 1981. Part 56/57, pp. 41–41a, April 1, 1990. Cluff, Gordon L., ‘‘Insert-Type Hearing Industrial Union Dep’t., AFL-CIO v. Hodgson, Nilsson, R. et al., ‘‘Noise Exposure and Protector Stability as a Function of 499 F. 2d 467 (D.C. 1974). Hearing Impairment in the Shipbuilding Controlled Jaw Movement,’’ American Kasden, Stephen D. and Anthony D’Aniello, Industry,’’ Scandinavian Audiology, 6:59– Industrial Hygiene Association Journal, ‘‘Changes in Attenuation of Hearing 68, 1977. 50:147–151, March 1989. Protectors During Use,’’ Noisexpo New National Institute for Occupational Safety Coleman, G.J. et al., ‘‘Communications in York, NY, March 29–31, 1976. and Health (NIOSH), ‘‘Criteria for a Noisy Environments,’’ Final Report on CEC Kasden, S.D. and A. D’Aniello, ‘‘Changes in Recommended Standard * * * Contract 7206/00/8/09, Institute of Attenuation of Hearing Protectors During Occupational Exposure to Noise,’’ HSM Occupational Medicine, pp. 1–168, June Use,’’ Audiology and Hearing Education, 73–11001, U.S. Department of Health, 1984. pp. 18–19, August–September 1978. Education, and Welfare, U.S. Government Committee on Hearing, Bioacoustics, and Kogut, Jon and Richard J. Goff, ‘‘Analysis of Printing Office, Washington, DC, pp. 1– Biomechanics (CHABA), Commission on Noise Reduction with Earmuff Hearing 142, 1972. Behavioral and Social Sciences and Protectors under Field Conditions,’’ NIOSH, ‘‘Survey of Hearing Loss in the Coal Education, National Research Council, Informational Report IR 1221, pp. 1–31, ‘‘Hazardous Exposure to Steady-State and Mining Industry,’’ HEW Publication No. 1994. (NIOSH) 76–172, June 1976. Intermittent Noise.’’ National Academy Krutt, M. A. and Marvin Mazor, ‘‘Attenuation Press, Washington, DC, 1993. NIOSH, ‘‘Compendium of Hearing Protection Changes During the Use of Mineral Down Devices,’’ Franks, John R. et al., Cincinnati, Crawford, D.R. and R.J. Nozza, ‘‘Field and Polymer Foam Insert-type Hearing OH, pp. 1–78, October 1994. Performance Evaluation of Wearer-Molded Protectors,’’ Audiology and Hearing NIOSH, Letter to James R. Petrie, from Linda Ear Inserts,’’ Presented at the American Education, pp. 13–14, Winter 1980–1981. Rosenstock, ‘‘The Development of the Industrial Hygiene Association Conference, Kryter, K.D., ‘‘Damage Risk from Exposure to Portland, OR, May 29, 1981. Noise,’’ Ch. 5 in The Effects of Noise on Noise Proposed Standard,’’ pp. 1–29, Durkt, George, Jr., ‘‘Field Evaluation of Man, Academic Press, Inc., New York, NY, NIOSH Building, Washington, DC, March Hearing Protective Devices at Surface pp. 139–205, 1970. 13, 1995. Mining Environments,’’ MSHA Kryter, K.D., ‘‘Physiological, Psychological, NIOSH, Letter to James R. Petrie, from Informational Report IR 1213, pp. 1–31, and Social Effects of Noise,’’ National Richard Niemeier, ‘‘State Worker 1993. Aeronautics and Space Administration Compensation Data Relating to Eden, David, ‘‘Australian Mining Industry (NASA), NASA Reference Publication Occupational Noise-Induced Hearing Loss Experience In Hearing Conservation,’’ 1115, N84–29465, pp. 175–341, 1984. in Miners,’’ pp. 1–6, and ‘‘A Survey of Noise & Man ’93, Noise as a Public Health Lempert, Barry L. and T.L. Henderson, States’ Workers’ Compensation Practices Problem, Proceedings of the 6th ‘‘Occupational Noise and Hearing 1968– for Occupational Hearing Loss,’’ pp. 2–8, International Congress, Nice, France, pp. 1972,’’ HEW Publication No. (NIOSH) 74– NIOSH Building, Cincinnati, OH, April 13, 47–50, July 1993. 116, U.S. Department of Health, Education, 1995. Fodor, William J. and Arthur Oleinick, and Welfare, U.S. Government Printing NIOSH, ‘‘Analysis of Audiograms for a Large ‘‘Workers’’ Compensation for Occupational Office., Washington, DC, pp. 1–51, 1973. Cohort of Noise-Exposed Miners,’’ John
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Franks, pp. 1–7, and cover letter to Davitt Royster, Larry H. et al., ‘‘Guidelines for Control,’’ Pittsburgh Research Center, Bolt, McAteer, from Linda Rosenstock, August 6, Developing an Effective Hearing Beranek, B. and Newman Inc., pp. 1–265, 1996. Conservation Program,’’ Sound and May 1980. NIOSH, Letter to James R. Petrie, from Vibration, 16(5), May 1982. United States Department of the Interior, U.S. Richard Niemeier, ‘‘Hierarchy of Controls Royster, Larry H., ‘‘Recommendations for the Bureau of Mines, ‘‘Loader Noise Control,’’ for MSHA’s Noise Standard,’’ pp. 1–3, Labeling of Hearing Protectors,’’ Sound Pittsburgh Research Center, Bolt, Beranek, December 16, 1994, and cover letter to and Vibration, pp. 16–19, July 1995. B. and Newman Inc., pp. 1–133, June 1981. Andrea Hricko from Linda Rosenstock, Sataloff, Joseph et al., ‘‘Hearing Loss and United States Department of the Interior, August 14, 1996. Intermittent Noise Exposure,’’ Journal of Bureau of Mines, Mineral Commodities NIOSH, ‘‘Prevalence of Hearing Loss for Occupational Medicine, 26(9):649–656, Summaries 1998, pp. 3–6, January 1998. Noise-Exposed Metal/Nonmetal Miners,’’ September 1984. United Steelworkers of America, AFL–CIO– John Franks, pp.1–5, and cover letter to Schmidek, Mark et al., ‘‘Evaluation of CLC v. ′′Marshall, 647 F. 2d 1189, 1266 Andrea Hricko, from Gregory Wagner, Proposed Limits Intermittent Noise (D.C. Cir. 1981). October 7, 1997. Exposures with Temporary Threshold Shift Valoski, Michael P., ‘‘The Magnitude of the Nixon, C.W. and E.H. Berger, ‘‘Hearing as a Criterion,’’ American Industrial Noise-Induced Hearing Loss Problem in the Protection Devices,’’ Ch. 21 in Handbook Hygiene Association Journal, August 1972. Mining Industries,’’ U.S. Department of of Acoustical Measurements and Noise Schwetz, F. et al., ‘‘The Critical Intensity for Labor, Informational Report IR 1220, Control (3rd edition), ed. Cyril M. Harris, Occupational Noise,’’ Acta Otolaryngol, March 1994. McGraw-Hill, Inc., pp. 1–24, 1991. 89:358–361, 1980. Wright, Mark, ‘‘Education: The Key to Office of Technology and Assessment, Scott, H.H., ‘‘Noise Measuring Techniques,’’ Preventing Hearing Loss,’’ Occupational ‘‘Preventing Illness and Injury in the Ch. 17 in Handbook of Noise Control, ed. Health and Safety, pp. 38–39, January Workplace,’’ Ch. 9. Hierarchy of Controls, C.M. Harris, McGraw-Hill Book Company, 1980. OTA Publication No. OTA–H–256, New York, NY, pp. 1–36, 1957. Washington, DC, pp. 175–185, April 1985. Secretary of Labor, Mine Safety and Health List of Subjects OSHA, Hearing Conservation Amendment, Administration (MSHA) v. Callanan January 16, 1981 [46 FR 4078–4179]. Industries, Inc., 5 FMSHRC 1900 30 CFR Parts 56 and 57 OSHA, Hearing Conservation Amendment, (November 1983). March 8, 1983 [46 FR 9738–9784]. Metals, Mine safety and health, Noise Secretary of Labor, Mine Safety and Health control. OSHA, Occupational Noise Exposure, 29 CFR Administration (MSHA) v. A. H. Smith, 6 § 1910.95. FMSHRC 199 (February 1984). Park, Min-Yong and John G. Casali, ‘‘A 30 CFR Part 62 Shaw, Edgar A.G., ‘‘Occupational Noise Controlled Investigation of In-Field Exposure and Noise-Induced Hearing Loss: Mine safety and health, Noise control. Attenuation Performance of Selected Scientific Issues, Technical Arguments and Insert, Earmuff, and Canal Cap Hearing Practical Recommendations,’’ APS 707, 30 CFR Parts 70 and 71 Protectors,’’ Human Factors, 33:693–714, NRCC/CNRC No. 25051, Prepared for the December 1991. Coal, Mine safety and health, Noise Passchier-Vermeer, W., ‘‘Hearing Loss Due Special Advisory Committee on the control. To Continuous Exposure To Steady-State Ontario Noise Regulation, National Dated: August 30, 1999. Broad-Band Noise,’’ Acoustical Society of Research Council Canada, Division of America, 56(5):1595–1593, November Physics, pp. 1–64, October 30, 1985. J. Davitt McAteer, 1974. Smith, Curtis R., Letter to Larry Rabius, Assistant Secretary for Mine Safety and Pfeiffer, Bodo H., ‘‘Real-World Effectiveness ‘‘26% of the Mining Industry Workers have Health. of Hearing Protection Devices in German Material Hearing Impairment, ‘‘Industrial Industry,’’ 1992 Hearing Conservation Hearing Conservation Services Accordingly, Chapter I of Title 30 of Conference, University of Kentucky, pp. Consultants, Auburn, Alabama, December the Code of Federal Regulations is 21–24, April 1–4, 1992. 5, 1994. amended as follows: Prince, Mary M. et al., ‘‘A Re-examination of Society of Plastics Industry v. OSHA, 509 Risk Estimates from the NIOSH F.2d 1301 (2d Cir. 1975); cert. den. 427 PART 56Ð[AMENDED] Occupational Noise and Hearing Survey U.S. 992 (1975). (ONHS),’’ Journal of the Acoustical Society Stekelenburg, M., ‘‘Noise at Work—Tolerable 1. The authority citation for part 56 of America, 101(2):950–963, February Limits and Medical Control,’’ American continues to read as follows: 1997. Industrial Hygiene Association Journal, Authority: 30 U.S.C. 811. Prout, James H. et al., ‘‘A Study of Roof 43:403–410, June 1982. Suter, Alice H., ‘‘The Relationship of the Warning Signals and the Use of Personal § 56.5050 [Removed] Hearing Protection in Underground Coal Exchange Rate to Noise-Induced Hearing Mines,’’ The Pennsylvania State Loss,’’ Final Report of JRB Associates, 2. Section 56.5050 and the University, pp. 1–239, December 15, 1973. McLean, VA, December 13, 1983. undesignated center heading preceding Regan, Donald E., ‘‘Real Ear Attenuation of Suter, Alice H., ‘‘Hearing Conservation,’’ Ch. it are removed. Personal Ear Protective Devices Worn in 1 in Noise & Hearing Conservation Manual Industry.’’ Ph.D. diss., Kent State (4th Edition), ed. Elliott H. Berger et al., PART 57Ð[AMENDED] University, 1975. American Industrial Hygiene Association, Royster, Julia D. and Larry H. Royster, Akron, OH, pp. 1–18, 1986. 3. The authority citation for part 57 ‘‘Hearing Conservation Programs, Suter, Alice H., ‘‘The Development of Federal continues to read as follows: ‘‘Practical Guidelines for Success, Lewis Noise Standards and Damage Risk Publishers, Inc., Chelsea, MI, p. 51, 1990. Criteria,’’ Ch. 5 in Hearing Conservation in Authority: 30 U.S.C. 811. Royster, Julia D. et al., ‘‘Development of a Industry, Schools, and the Military, ed. § 57.5050 [Removed] New Standard Laboratory Protocol for D.M. Lipscomb, Little, Brown, and Co., Estimating the Field Attenuation of Boston, MA, pp. 45–66, 1988. 4. Section 57.5050 and the Hearing Protection Devices. Part I. Todilto Exploration and Development undesignated center heading preceding Research of Working Group 11, Accredited Corporation v. Secretary of Labor, 5 it are removed. Standards Committee S12, Noise,’’ Journal FMSHRC 1894, 1897 (1983). of the Acoustical Society of America, United States Department of Energy, Energy PART 70Ð[AMENDED] 99(3):1506–1526, March 1996. Information Administration, Coal Industry Royster, Larry H. et al., ‘‘Potential Hearing Annual 1997, DOE/EIA–0584(97), p. 154, 5. The authority citation for part 70 Compensation Cost By Race and Sex,’’ December 1998. Journal of Occupational Medicine, 20 (12): United States Department of the Interior, U.S. continues to read as follows: 801–806, December 1978. Bureau of Mines, ‘‘Bulldozer Noise Authority: 30 U.S.C. 811 and 961.
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Subpart FÐ[Removed] Action level. An 8-hour time-weighted Qualified technician. A technician average sound level (TWA8) of 85 dBA, who has been certified by the Council 6. Subpart F (§§ 70.500 through or equivalently a dose of 50%, for Accreditation in Occupational 70.511) is removed. integrating all sound levels from 80 dBA Hearing Conservation (CAOHC), or by to at least 130 dBA. another recognized organization offering PART 71Ð[AMENDED] Audiologist. A professional, equivalent certification. 7. The authority citation for part 71 specializing in the study and Permissible exposure level. A TWA8 continues to read as follows: rehabilitation of hearing, who is of 90 dBA or equivalently a dose of 100% of that permitted by the standard, Authority: 30 U.S.C. 811, 951, 957, 961. certified by the American Speech- Language-Hearing Association (ASHA) integrating all sound levels from 90 dBA Supbart IÐ[Removed] or licensed by a state board of to at least 140 dBA. examiners. Reportable hearing loss. A change in 8. Subpart I (§§ 71.800 through Baseline audiogram. The audiogram hearing sensitivity for the worse, 71.805) is removed. recorded in accordance with § 62.170(a) relative to the miner’s baseline of this part against which subsequent audiogram, or the miner’s revised Subchapters M and NÐ[Redsignated] audiograms are compared to determine baseline audiogram where one has been 9. Subchapter M is redesignated as the extent of hearing loss. established in accordance with Subchapter I, Subchapter N is Criterion level. The sound level which § 62.170(c)(2), of an average of 25 dB or redesignated as Subchapter K, and if constantly applied for 8 hours results more at 2000, 3000, and 4000 Hz in Subchapter N is reserved. in a dose of 100% of that permitted by either ear. 10. A new Subchapter M is added, the standard. Revised baseline audiogram. An ‘‘Uniform Mine Health Regulations.’’ Decibel (dB). A unit of measure of annual audiogram designated to be used 11. A new part 62 is added to new sound pressure levels, defined in one of in lieu of a miner’s original baseline Subchapter M to read as follows: two ways, depending upon the use: audiogram in measuring changes in (1) For measuring sound pressure hearing sensitivity as a result of the PART 62ÐOCCUPATIONAL NOISE levels, the decibel is 20 times the circumstances set forth in EXPOSURE common logarithm of the ratio of the §§ 62.170(c)(1) or 62.170(c)(2) of this measured sound pressure to the part. Sec. standard reference sound pressure of 20 Sound level. The sound pressure level 62.100 Purpose and scope; effective date µ in decibels measured using the A- 62.101 Definitions micropascals ( Pa), which is the threshold of normal hearing sensitivity weighting network and a slow response, 62.110 Noise exposure assessment expressed in the unit dBA. 62.120 Action level at 1000 Hertz (Hz). 62.130 Permissible exposure level (2) For measuring hearing threshold Standard threshold shift. A change in 62.140 Dual hearing protection level levels, the decibel is the difference hearing sensitivity for the worse relative 62.150 Hearing conservation program between audiometric zero (reference to the miner’s baseline audiogram, or 62.160 Hearing protectors pressure equal to 0 hearing threshold relative to the most recent revised 62.170 Audiometric testing level) and the threshold of hearing of baseline audiogram where one has been 62.171 Audiometric test procedures the individual being tested at each test established, of an average of 10 dB or 62.172 Evaluation of audiograms more at 2000, 3000, and 4000 Hz in 62.173 Follow-up evaluation when an frequency. Dual Hearing Protection Level. A either ear. audiogram is invalid Time-weighted average–8 hour 62.174 Follow-up corrective measures TWA8 of 105 dBA, or equivalently, a (TWA8). The sound level which, if when a standard threshold shift is dose of 800% of that permitted by the detected standard, integrating all sound levels constant over 8 hours, would result in 62.175 Notification of results; reporting from 90 dBA to at least 140 dBA. the same noise dose as is measured. requirements Exchange rate. The amount of § 62.110 Noise exposure assessment. 62.180 Training increase in sound level, in decibels, 62.190 Records (a) The mine operator must establish Appendix to part 62 which would require halving of the a system of monitoring that evaluates allowable exposure time to maintain the Authority: 30 U.S.C. 811. each miner’s noise exposure sufficiently same noise dose. For the purposes of to determine continuing compliance § 62.100 Purpose and scope; effective this part, the exchange rate is 5 decibels with this part. date. (5 dB). (b) The mine operator must determine The purpose of these standards is to Hearing protector. Any device or a miner’s noise dose (D, in percent) by prevent the occurrence and reduce the material, capable of being worn on the using a noise dosimeter or by computing progression of occupational noise- head or in the ear canal, sold wholly or the formula: D=100(C1/T1+C2/T2+ . . . . induced hearing loss among miners. in part on the basis of its ability to +Cn/Tn), where Cn is the total time the This part sets forth mandatory health reduce the level of sound entering the miner is exposed at a specified sound standards for each surface and ear, and which has a scientifically level, and Tn is the reference duration of underground metal, nonmetal, and coal accepted indicator of noise reduction exposure at that sound level shown in mine subject to the Federal Mine Safety value. Table 62–1. and Health Act of 1977. The provisions Hertz (Hz). Unit of measurement of (1) The mine operator must use Table of this part become effective September frequency numerically equal to cycles 62–2 when converting from dose 13, 2000. per second. readings to equivalent TWA8 readings. Medical pathology. A condition or (2) A miner’s noise dose § 62.101 Definitions. disease affecting the ear. determination must: The following definitions apply in Miner’s designee. Any individual or (i) Be made without adjustment for this part: organization to whom a miner gives the use of any hearing protector; Access. The right to examine and written authorization to exercise a right (ii) Integrate all sound levels over the copy records. of access to records. appropriate range;
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(iii) Reflect the miner’s full work shift; (e) The mine operator must maintain operator must post the procedures for (iv) Use a 90-dB criterion level and a a copy of any such miner notification, such controls on the mine bulletin 5-dB exchange rate; and or a list on which the relevant board and provide a copy to the affected (v) Use the A-weighting and slow information about that miner’s notice is miner. response instrument settings. recorded, for the duration of the affected (b) If a miner’s noise exposure (c) Observation of monitoring. The miner’s exposure at or above the action continues to exceed the permissible mine operator must provide affected level and for at least 6 months exposure level despite the use of all miners and their representatives with an thereafter. opportunity to observe noise exposure feasible engineering and administrative monitoring required by this section and § 62.120 Action level. controls, the mine operator must must give prior notice of the date and If during any work shift a miner’s continue to use the engineering and time of intended exposure monitoring to noise exposure equals or exceeds the administrative controls to reduce the affected miners and their action level the mine operator must miner’s noise exposure to as low a level representatives. enroll the miner in a hearing as is feasible. (d) Miner notification. The mine conservation program that complies (c) The mine operator must assure operator must notify a miner of his or with § 62.150 of this part. that no miner is exposed at any time to her exposure when the miner’s exposure sound levels exceeding 115 dBA, as is determined to equal or exceed the § 62.130 Permissible exposure level. (a) The mine operator must assure determined without adjustment for the action level, exceed the permissible use of any hearing protector. exposure level, or exceed the dual that no miner is exposed during any hearing protection level, provided the work shift to noise that exceeds the § 62.140 Dual hearing protection level. mine operator has not notified the miner permissible exposure level. If during of an exposure at such level within the any work shift a miner’s noise exposure If during any work shift a miner’s prior 12 months. The mine operator exceeds the permissible exposure level, noise exposure exceeds the dual hearing must base the notification on an the mine operator must use all feasible protection level, the mine operator exposure evaluation conducted either engineering and administrative controls must, in addition to the actions required by the mine operator or by an to reduce the miner’s noise exposure to for noise exposures that exceed the authorized representative of the the permissible exposure level, and permissible exposure level, provide and Secretary of Labor. The mine operator enroll the miner in a hearing ensure the concurrent use of both an ear must notify the miner in writing within conservation program that complies plug and an ear muff type hearing 15 calendar days of: with § 62.150 of this part. When a mine protector. The following table sets out (1) The exposure determination; and operator uses administrative controls to mine operator actions under MSHA’s (2) the corrective action being taken. reduce a miner’s exposure, the mine noise standard.
Provision Condition Action required by the mine operator
§ 62.120 ...... Miner's noise exposure is less than the None. action level. § 62.120 ...... Miner's exposure equals or exceeds Operator enrolls the miner in hearing conservation program (HCP) which in- the action level, but does not exceed cludes (1) a system of monitoring, (2) voluntary, with two exceptions, use of the permissible exposure level (PEL). operator-provided hearing protectors, (3) voluntary audiometric testing, (4) training, and (5) record keeping. § 62.130 ...... Miner's exposure exceeds the PEL ...... Operator uses/continues to use all feasible engineering and administrative con- trols to reduce exposure to PEL; enrolls the miner in a HCP including en- sured use of operator-provided hearing protectors; posts administrative con- trols and provides copy to affected miner; must never permit a miner to be exposed to sound levels exceeding 115 dBA. § 62.140 ...... Miner's exposure exceeds the dual Operator enrolls the miner in a HCP, continues to meet all the requirements of hearing protection level. § 62.130, ensures concurrent use of earplug and earmuff.
§ 62.150 Hearing conservation program. action level under § 62.120 of this part. subsequently precluded due to medical A hearing conservation program In addition, the mine operator must: pathology of the ear. established under this part must (1) Train the miner in accordance (b) The mine operator must ensure, include: with § 62.180 of this part; after satisfying the requirements of (a) A system of monitoring under (2) Allow the miner to choose a paragraph (a) of this section, that a § 62.110 of this part; hearing protector from at least two muff miner wears a hearing protector (b) The provision and use of hearing types and two plug types, and in the whenever the miner’s noise exposure protectors under § 62.160 of this part; event dual hearing protectors are exceeds the permissible exposure level (c) Audiometric testing under required, to choose one of each type; before the implementation of §§ 62.170 through 62.175 of this part; (3) Ensure that the hearing protector engineering and administrative controls, (d) Training under § 62.180 of this is in good condition and is fitted and or if the miner’s noise exposure part; and maintained in accordance with the continues to exceed the permissible (e) Recordkeeping under § 62.190 of manufacturer’s instructions; exposure level despite the use of all this part. (4) Provide the hearing protector and feasible engineering and administrative necessary replacements at no cost to the controls. § 62.160 Hearing protectors. miner; and (c) The mine operator must ensure, (a) A mine operator must provide a (5) Allow the miner to choose a after satisfying the requirements of hearing protector to a miner whose different hearing protector(s), if wearing paragraph (a) of this section, that a noise exposure equals or exceeds the the selected hearing protector(s) is miner wears a hearing protector when
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The mine operator must provide § 62.171 Audiometric test procedures. (2) If an annual audiogram audiometric tests to satisfy the (a) All audiometric testing under this demonstrates that the miner has requirements of this part at no cost to part must be conducted in accordance incurred a standard threshold shift or the miner. A physician or an with scientifically validated procedures. reportable hearing loss, the mine audiologist, or a qualified technician Audiometric tests must be pure tone, air operator may provide one retest within under the direction or supervision of a conduction, hearing threshold 30 calendar days of receiving the results physician or an audiologist must examinations, with test frequencies of the audiogram and may use the conduct the tests. including 500, 1000, 2000, 3000, 4000, results of the retest as the annual (a) Baseline audiogram. The mine and 6000 Hz. Each ear must be tested audiogram. operator must offer miners the separately. (c) In determining whether a standard opportunity for audiometric testing of (b) The mine operator must compile threshold shift or reportable hearing loss the miner’s hearing sensitivity for the an audiometric test record for each has occurred, allowance may be made purpose of establishing a valid baseline miner tested. The record must include: for the contribution of aging audiogram to compare with subsequent (1) Name and job classification of the (presbycusis) to the change in hearing annual audiograms. The mine operator miner tested; level. The baseline, or the revised may use an existing audiogram of the (2) A copy of all of the miner’s baseline as appropriate, and the annual miner’s hearing sensitivity as the audiograms conducted under this part; audiograms used in making the baseline audiogram if it meets the (3) Evidence that the audiograms were determination should be adjusted audiometric testing requirements of conducted in accordance with according to the following procedure: § 62.171 of this part. paragraph (a) of this section; (1) Determine from Tables 62–3 or 62– (1) The mine operator must offer and (4) Any exposure determination for 4 the age correction values for the miner provide within 6 months of enrolling the miner conducted in accordance with by: the miner in a hearing conservation § 62.110 of this part; and (i) Finding the age at which the (5) The results of follow-up program, audiometric testing which baseline audiogram or revised baseline examination(s), if any. results in a valid baseline audiogram, or audiogram, as appropriate, was taken, (c) The operator must maintain offer and provide the testing within 12 and recording the corresponding values audiometric test records for the duration months where the operator uses mobile of age corrections at 2000, 3000, and of the affected miner’s employment, test vans to do the testing. 4000 Hz; plus at least 6 months, and make the (2) The mine operator must notify the (ii) Finding the age at which the most records available for inspection by an miner to avoid high levels of noise for recent annual audiogram was obtained authorized representative of the at least 14 hours immediately preceding and recording the corresponding values Secretary of Labor. the baseline audiogram. The mine of age corrections at 2000, 3000, and operator must not expose the miner to § 62.172 Evaluation of audiograms. 4000 Hz; and (iii) Subtracting the values workplace noise for the 14-hour quiet (a) The mine operator must: period before conducting the determined in paragraph (c)(1)(i) of this (1) Inform persons evaluating section from the values determined in audiometric testing to determine a audiograms of the requirements of this baseline audiogram. The operator may paragraph (c)(1)(ii) of this section. The part and provide those persons with a differences calculated represent that substitute the use of hearing protectors copy of the miner’s audiometric test for this quiet period. portion of the change in hearing that records; may be due to aging. (3) The mine operator must not (2) Have a physician or an audiologist, (2) Subtract the values determined in establish a new baseline audiogram or a or a qualified technician who is under paragraph (c)(1)(iii) of this section from new revised baseline audiogram, where the direction or supervision of a the hearing threshold levels found in one has been established, due to physician or audiologist: the annual audiogram to obtain the changes in enrollment status in the (i) Determine if the audiogram is adjusted annual audiogram hearing hearing conservation program. The mine valid; and threshold levels. operator may establish a new baseline or (ii) Determine if a standard threshold (3) Subtract the hearing threshold revised baseline audiogram for a miner shift or a reportable hearing loss, as levels in the baseline audiogram or who is away from the mine for more defined in this part, has occurred. revised baseline audiogram from the than 6 consecutive months. (3) Instruct the physician, audiologist, adjusted annual audiogram hearing (b) Annual audiogram. After the or qualified technician not to reveal to threshold levels determined in baseline audiogram is established, the the mine operator, without the written paragraph (c)(2) of this section to obtain mine operator must continue to offer consent of the miner, any specific the age-corrected threshold shifts. subsequent audiometric tests at findings or diagnoses unrelated to the intervals not exceeding 12 months for as miner’s hearing loss due to occupational § 62.173 Follow-up evaluation when an long as the miner remains in the hearing noise or the wearing of hearing audiogram is invalid. conservation program. protectors; and (a) If a valid audiogram cannot be (c) Revised baseline audiogram. An (4) Obtain the results and the obtained due to a suspected medical annual audiogram must be deemed to be interpretation of the results of pathology of the ear that the physician a revised baseline audiogram when, in audiograms conducted under this part or audiologist believes was caused or
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(1) The mine must refer the miner for a clinical- audiologist has determined that the loss operator must transfer all records audiological evaluation or an otological is neither work-related nor aggravated required to be maintained by this part, examination, as appropriate, at no cost by occupational noise exposure. or a copy thereof, to a successor mine to the miner. operator who must maintain the records (b) If a valid audiogram cannot be § 62.180 Training. for the time period required by this part. obtained due to a suspected medical (a) The mine operator must, within 30 (2) The successor mine operator must pathology of the ear that the physician days of a miner’s enrollment into a use the baseline audiogram, or revised or audiologist concludes is unrelated to hearing conservation program, provide baseline audiogram, as appropriate, the miner’s occupational exposure to the miner with training. The mine obtained by the original mine operator noise or the wearing of hearing operator must give training every 12 to determine the existence of a standard protectors, the mine operator must months thereafter if the miner’s noise threshold shift or reportable hearing instruct the physician or audiologist to exposure continues to equal or exceed loss. the action level. Training must include: inform the miner of the need for an Appendix to Part 62 otological examination. (1) The effects of noise on hearing; (2) The purpose and value of wearing (c) The mine operator must instruct TABLE 62±1.ÐREFERENCE DURATION the physician, audiologist, or qualified hearing protectors; (3) The advantages and disadvantages technician not to reveal to the mine dBA T (hours) operator, without the written consent of of the hearing protectors to be offered; the miner, any specific findings or (4) The various types of hearing 80 ...... 32.0 diagnoses unrelated to the miner’s protectors offered by the mine operator 85 ...... 16.0 occupational exposure to noise or the and the care, fitting, and use of each 86 ...... 13.9 wearing of hearing protectors. type; 87 ...... 12.1 (5) The general requirements of this 88 ...... 10.6 § 62.174 Follow-up corrective measures part; 89 ...... 9.2 when a standard threshold shift is detected. (6) The mine operator’s and miner’s 90 ...... 8.0 91 ...... 7.0 The mine operator must, within 30 respective tasks in maintaining mine 92 ...... 6.1 calendar days of receiving evidence or noise controls; and 93 ...... 5.3 confirmation of a standard threshold (7) The purpose and value of 94 ...... 4.6 shift, unless a physician or audiologist audiometric testing and a summary of 95 ...... 4.0 determines the standard threshold shift the procedures. 96 ...... 3.5 is neither work-related nor aggravated (b) The mine operator must certify the 97 ...... 3.0 by occupational noise exposure: date and type of training given each 98 ...... 2.6 (a) Retrain the miner, including the miner, and maintain the miner’s most 99 ...... 2.3 recent certification for as long as the 100 ...... 2.0 instruction required by § 62.180 of this 101 ...... 1.7 part; miner is enrolled in the hearing 102 ...... 1.5 (b) Provide the miner with the conservation program and for at least 6 103 ...... 1.3 opportunity to select a hearing months thereafter. 104 ...... 1.1 protector, or a different hearing 105 ...... 1.0 § 62.190 Records. protector if the miner has previously 106 ...... 0.87 selected a hearing protector, from (a) The authorized representatives of 107 ...... 0.76 among those offered by the mine the Secretaries of Labor and Health and 108 ...... 0.66 operator in accordance with § 62.160 of Human Services must have access to all 109 ...... 0.57 records required under this part. Upon 110 ...... 0.50 this part; and 111 ...... 0.44 (c) Review the effectiveness of any written request, the mine operator must provide, within 15 calendar days of the 112 ...... 0.38 engineering and administrative controls 113 ...... 0.33 to identify and correct any deficiencies. request, access to records to: 114 ...... 0.29 (1) The miner, or with the miner’s 115 ...... 0.25 § 62.175 Notification of results; reporting written consent, the miner’s designee, requirements. for all records that the mine operator At no time shall any excursion exceed 115 dBA. For any value, the reference duration (T) (a) The mine operator must, within 10 must maintain for that individual miner in hours is computed by: T = 8/2(L±90)5 where working days of receiving the results of under this part; L is the measured A-weighted, slow-response an audiogram, or receiving the results of (2) Any representative of miners sound pressure level. a follow-up evaluation required under designated under part 40 of this title, to § 62.173 of this part, notify the miner in training certifications compiled under TABLE 62±2.Ð``DOSE''/TWA8 writing of: § 62.180(b) of this part and to any notice EQUIVALENT (1) The results and interpretation of of exposure determination under the audiometric test, including any § 62.110(d) of this part, for the miners Dose TWA finding of a standard threshold shift or whom he or she represents; and (percent) 8 reportable hearing loss; and (3) Any former miner, for records (2) The need and reasons for any which indicate his or her own exposure. 25 ...... 80 29 ...... 81 further testing or evaluation, if (b) When a person with access to 33 ...... 82 applicable. records under paragraphs (a)(1), (a)(2), 38 ...... 83 (b) When evaluation of the audiogram or (a)(3) of this section requests a copy 44 ...... 84 shows that a miner has incurred a of a record, the mine operator must 50 ...... 85 reportable hearing loss as defined in this provide the first copy of such record at 57 ...... 86 part, the mine operator must report such no cost to that person, and any 66 ...... 87
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TABLE 62±2.Ð``DOSE''/TWA8 TABLE 62±3.ÐAGE CORRECTION TABLE 62±4.ÐAGE CORRECTION Equivalent—Continued VALUE IN DECIBELS FOR MALES (SE- VALUE IN DECIBELS FOR FEMALES LECTED FREQUENCIES)ÐContinued (SELECTED FREQUENCIES) Dose TWA8 (percent) kHz kHz Age (years) Age (years) 76 ...... 88 2 3 4 2 3 4 87 ...... 89 100 ...... 90 26 ...... 4 5 7 20 or less ...... 4 3 3 115 ...... 91 27 ...... 4 6 7 21 ...... 4 4 3 132 ...... 92 28 ...... 4 6 8 22 ...... 4 4 4 152 ...... 93 23 ...... 5 4 4 174 ...... 94 29 ...... 4 6 8 30 ...... 4 6 9 24 ...... 5 4 4 200 ...... 95 25 ...... 5 4 4 31 ...... 4 7 9 230 ...... 96 26 ...... 5 5 4 32 ...... 5 7 10 264 ...... 97 27 ...... 5 5 5 303 ...... 98 33 ...... 5 7 10 28 ...... 5 5 5 350 ...... 99 34 ...... 5 8 11 29 ...... 5 5 5 400 ...... 100 35 ...... 5 8 11 30 ...... 6 5 5 460 ...... 101 36 ...... 5 9 12 31 ...... 6 6 5 530 ...... 102 37 ...... 6 9 12 32 ...... 6 6 6 610 ...... 103 38 ...... 6 9 13 33 ...... 6 6 6 700 ...... 104 39 ...... 6 10 14 34 ...... 6 6 6 800 ...... 105 35 ...... 6 7 7 920 ...... 106 40 ...... 6 10 14 36 ...... 7 7 7 1056 ...... 107 41 ...... 6 10 14 37 ...... 7 7 7 1213 ...... 108 42 ...... 7 11 16 38 ...... 7 7 7 1393 ...... 109 43 ...... 7 12 16 39 ...... 7 8 8 1600 ...... 110 44 ...... 7 12 17 40 ...... 7 8 8 1838 ...... 111 45 ...... 7 13 18 41 ...... 8 8 8 2111 ...... 112 46 ...... 8 13 19 42 ...... 8 9 9 2425 ...... 113 47 ...... 8 14 19 43 ...... 8 9 9 2786 ...... 114 48 ...... 8 14 20 44 ...... 8 9 9 3200 ...... 115 49 ...... 9 15 21 45 ...... 8 10 10 Interpolate between the values found in this 50 ...... 9 16 22 46 ...... 9 10 10 Table, or extend the Table, by using the for- 51 ...... 9 16 23 47 ...... 9 10 11 mula: TWA = 16.61 log (D/100) + 90. 8 10 52 ...... 10 17 24 48 ...... 9 11 11 53 ...... 10 18 25 49 ...... 9 11 11 50 ...... 10 11 12 TABLE 62±3.ÐAGE CORRECTION 54 ...... 10 18 26 VALUE IN DECIBELS FOR MALES (SE- 51 ...... 10 11 12 55 ...... 11 19 27 52 ...... 10 12 13 LECTED REQUENCIES F ) 56 ...... 11 20 28 53 ...... 10 13 13 57 ...... 11 21 29 54 ...... 11 13 14 kHz 58 ...... 12 22 31 55 ...... 11 14 14 Age (years) 2 3 4 59 ...... 12 22 32 56 ...... 11 14 15 60 or more ...... 13 23 33 57 ...... 11 15 15 20 or less ...... 3 4 5 58 ...... 12 15 16 21 ...... 3 4 5 59 ...... 12 16 16 22 ...... 3 4 5 60 or more ...... 12 16 17 23 ...... 3 4 6 24 ...... 3 5 6 [FR Doc. 99–22964 Filed 9–7–99; 8:45 am] 25 ...... 3 5 7 BILLING CODE 4510±33±P
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DEPARTMENT OF LABOR muff as an engineering noise control. ‘‘hundreds of thousands of dollars’’ in Noise-cancellation ear muffs are hearing manpower, materials, lost production Mine Safety and Health Administration protectors that are designed to generate and equipment, to retrofit rubber liners sound that cancels harmful noise signals in the interior walls of the mills. The 30 CFR Parts 56, 57, 62, 70 and 71 under the cup of the ear muff. MSHA commenter also noted that alternative RIN 1219±AA53 has not found any data substantiating a means of milling would cost between 3- standardized method of evaluating the million and 10-million dollars per ball Occupational Noise Exposure; efficacy of noise-cancellation ear muffs mill. Section VI of this preamble Correction in a manner similar to engineering discusses the feasibility of a permissible controls. Also, noise-cancellation ear exposure level for the mining industry, AGENCY: Mine Safety and Health muffs in the active mode cannot be and, in addition, the feasibility of Administration, Labor. evaluated using the American National complying with the permissible ACTION: Final rule; correction. Standards Institute (ANSI) method for exposure level for a particular operator. SUMMARY: This document corrects the evaluating hearing protectors. Noise- Regarding noise controls which may be preamble to the final rule for health cancellation ear muffs are not feasible for particular operators of standards for occupational noise engineering controls, and the final rule milling operations, the Agency intends exposure published elsewhere in does not accept them as such but does to adhere to the enforcement guidelines today’s Federal Register. recognize them as hearing protectors, set forth in volume IV of its existing FOR FURTHER INFORMATION CONTACT: where an NRR value has been assigned program policy manual because the Carol J. Jones, Acting Director, Office of under EPA regulations. permissible exposure level in the final Some other commenters believed that Standards, Regulations, and Variances, rule remains unchanged from the the use of operator cabs, which are MSHA, (703) 235–1910. existing noise standards. The program engineering controls that allow the policy manual indicates that frequently, Correction miner to work within a protective sound mining personnel are exposed to noise MSHA is publishing elsewhere in this enclosure, creates a safety hazard, levels of up to 114 dBA from milling issue of the Federal Register a final rule especially in low-seam underground operations, and that engineering noise on health standards for occupational mines. Although the Agency has limited controls may be feasible for such noise exposure. This document adds experience with the use of noise-control operations. Such controls include: text inadvertently left out of the cabs in underground mines, MSHA has resiliently backed liners; acoustically preamble. Certain text that should have had extensive experience with the use treated control booths; full or partial been included under the heading of cabs in underground mines to topless enclosures around mill ‘‘Section 62.130 Permissible exposure provide protection from falling objects, equipment or employee work locations; level’’ was inadvertently omitted. The including roof falls. This experience and acoustic baffles suspended above text should have followed this demonstrates that equipment cabs can enclosures. In order to determine which paragraph: be safely used in the underground mine control or combination of controls are environment. In any case, MSHA would feasible and effective to reduce the noise Although many commenters may prefer to not expect a mine operator to use a cab use hearing protectors in lieu of engineering exposure of employees working in mills, or administrative controls to protect miners as an engineering control if it created a it is usually necessary to do a time study from noise overexposures, MSHA has safety hazard. As a practical matter, the to pinpoint the locations and noise concluded that the scientific evidence does final rule provides mine operators with sources contributing to the employee’s not support this position, and that the significant flexibility in choosing among overexposure. In some situations an approach taken in the final rule best protects various noise controls, and does not acoustically treated control booth may miners from further noise-induced hearing compel the use of one type of control be all that is needed, in others more loss. over another. extensive treatments may be necessary. The text to be added reads as follows: Many commenters believe Administrative controls may also be MSHA noted earlier in this discussion administrative controls create feasible to limit employee exposure to that it had conducted a study of the unnecessary problems for mine particularly noisy areas of a mill. noise reduction values of hearing operators. Some of their concerns Control booths can be constructed and protectors in the actual mining include restrictions in labor contracts, acoustically treated by mine operators environment. The inability to accurately the limited numbers of qualified miners or can be purchased from commercial predict the noise reduction provided by who can be rotated in and out of a job, sources. Resiliently backed liners can be a hearing protector to an individual and the difficulty in tracking rotated put on chutes, bins and other drop or miner led to MSHA’s decision to reject miners. MSHA has concluded that the impact points to reduce noise from the use of hearing protectors as the effectiveness of administrative controls, these sources. In situations where primary means of reducing a miner’s when they are feasible, compels their numerous employees are exposed to the noise exposure to the permissible application prior to allowing mine noise, full or partial topless enclosures exposure level. Not only do engineering operators to use personal hearing around the mill may be feasible. and administrative controls best protect protectors to control their miners’ noise Dependent upon the noise reduction miners from noise-induced hearing loss, exposures. required to lower an employee’s they increase the protection afforded by Regarding the feasibility of noise exposure to the permissible exposure a hearing protector. controls, the American Portland Cement level, acoustical absorptive material One commenter requested that MSHA Alliance commented that there are may be needed within or above the provide a definition of an engineering several operational areas where it is enclosure. Acoustical baffles suspended noise control. MSHA addresses particularly difficult and expensive to above such enclosures has proven to be engineering controls in significant detail control noise, for example raw and an effective method of reducing the under the discussion of feasibility in finish ball mills, crusher and screening overall noise levels. Part VI of this preamble. areas, and coal unloading, compressor The cost for such enclosures is Several commenters wanted MSHA to and blower rooms. In one example, the dependent on the type of materials recognize the noise-cancellation ear commenter estimated that it would cost utilized in its construction and the
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Reader Aids Federal Register Vol. 64, No. 176 Monday, September 13, 1999
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING SEPTEMBER
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since the revision date of each title. Laws 523±5227 3 CFR 220...... 48459 225...... 48459 Proclamations: Presidential Documents 226...... 48459 5030 (See Proc. 246...... 48115 Executive orders and proclamations 523±5227 7219) ...... 48701 The United States Government Manual 523±5227 7219...... 48701 928...... 48115 Executive orders: 9 CFR Other Services April 1, 1915 (Revoked 93...... 48258 Electronic and on-line services (voice) 523±4534 in part by PLO Privacy Act Compilation 523±3187 7410) ...... 48849 Proposed Rules: 3...... 48568 Public Laws Update Service (numbers, dates, etc.) 523±6641 1390 (Amended by EO 13136) ...... 48931 TTY for the deaf-and-hard-of-hearing 523±5229 10 CFR 13136...... 48931 1...... 48942 ELECTRONIC RESEARCH 7 CFR 2...... 48942 246...... 48075 7...... 48942 World Wide Web 272...... 48246, 48933 9...... 48942 Full text of the daily Federal Register, CFR and other 273...... 48246, 48933 50...... 48942 publications: 274...... 48933 51 ...... 48496, 48507, 48942 300...... 49079 52...... 48942 http://www.access.gpo.gov/nara 301...... 48245, 49079 60...... 48942 Federal Register information and research tools, including Public 729...... 48938 62...... 48942 Inspection List, indexes, and links to GPO Access: 923...... 49349 72...... 48259, 48942 http://www.nara.gov/fedreg 924...... 48077 75...... 48942 947...... 49352 76...... 48942 E-mail 948...... 48079 100...... 48942 PENS (Public Law Electronic Notification Service) is an E-mail 955...... 48243 110...... 48942 service for notification of recently enacted Public Laws. To 1000...... 47898 Proposed Rules: subscribe, send E-mail to 1001...... 47898 31...... 48333 1002...... 47898 [email protected] 51...... 48117 1004...... 47898 73...... 49410 with the text message: 1005...... 47898 subscribe PUBLAWS-L your name 1006...... 47898 11 CFR 1007...... 47898 9003...... 49355 Use [email protected] only to subscribe or unsubscribe to 1012...... 47898 PENS. We cannot respond to specific inquiries. 9004...... 49355 1013...... 47898 9008...... 49355 Reference questions. Send questions and comments about the 1030...... 47898 9032...... 49355 Federal Register system to: 1032...... 47898 9033...... 49355 1033...... 47898 9034...... 49355 [email protected] 1036...... 47898 9035...... 49355 The Federal Register staff cannot interpret specific documents or 1040...... 47898 9036...... 49355 regulations. 1044...... 47898 1046...... 47898 12 CFR FEDERAL REGISTER PAGES AND DATES, SEPTEMBER 1049...... 47898 1050...... 47898 201...... 48274 795...... 49079 47649±48074...... 1 1064...... 47898 Proposed Rules: 48075±48242...... 2 1065...... 47898 327...... 48719 48243±48526...... 3 1068...... 47898 1076...... 47898 380...... 48968 48527±48700...... 7 1079...... 47898 13 CFR 48701±48932...... 8 1106...... 47898, 48081 48933±49078...... 9 1124...... 47898 121...... 48275 49079±49348...... 10 1126...... 47898 123...... 48275 49349±49638...... 13 1131...... 47898 1134...... 47898 14 CFR 1135...... 47898 23...... 49365, 49367 1137...... 47898 25...... 47649 1138...... 47898 39 ...... 47651, 47653, 47656, 1139...... 47898 47658, 47660, 47661, 48277, 1220...... 49349 48280, 48282, 48284, 48286, 1448...... 48938 49080 1924...... 48083 71 ...... 47663, 47664, 47665, Proposed Rules: 48085, 48086, 48088, 48089, 210...... 48459 48527, 48703, 48897
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73 ...... 47665, 48090, 49373, 27 CFR 439...... 48103 22...... 49128 49374, 49376 4...... 49385 Proposed Rules: 24...... 49128 97...... 49377, 49378 200...... 49083 49...... 48725, 48731 25...... 49128 Proposed Rules: 52 ...... 47754, 48126, 48127, 26...... 49128 23...... 49413 28 CFR 48337, 48725, 48731, 48739, 27...... 49128 39 ...... 47715, 48120, 48333, Proposed Rules: 48970, 48976, 49425 51...... 49426 48721, 48723, 490105, 16...... 49117 62...... 48742 68...... 49426 49110, 49112, 49113, 49115, 302...... 48336 148...... 48742, 49052 73...... 49135 49413, 49420 261...... 48742, 49052 76...... 49426 71 ...... 47718, 48123, 48459 29 CFR 264...... 49052 90...... 49128 95...... 49128 697...... 48525 265...... 49052 15 CFR 100...... 49128 2700...... 48707 268...... 48742, 49052 742...... 47666, 49380 271 ...... 47755, 48135, 48742, 101...... 49128 745...... 49380 30 CFR 49052 746...... 49382 302...... 48742, 49052 56...... 49548, 49636 48 CFR 774...... 47666, 48956 403...... 47755 57...... 49548, 49636 Proposed Rules: 439...... 48103 Ch. 20 ...... 49322 806...... 48568 52...... 49548, 49636 235...... 48459 70...... 49548, 49636 42 CFR 552...... 48718 16 CFR 71...... 49548, 49636 Proposed Rules: 553...... 48718 Proposed Rules: 1051...... 48703 435...... 49121 570...... 48718 901...... 48573 1615...... 48704 436...... 49121 1806...... 48560 918...... 49118 1616...... 48704 440...... 49121 1813...... 48560 Proposed Rules: 1815...... 48560 32 CFR 460...... 48024 43 CFR 1835...... 48560 2001...... 49388 1852...... 48560 19 CFR Proposed Rules: 3830...... 48897 1872...... 48560 12...... 48091 33 CFR 113...... 48528 117...... 49391 44 CFR 49 CFR 151...... 48528 165 ...... 49392, 49393, 49394 206...... 47697 178...... 48528 Proposed Rules: 383...... 48104 351...... 48706 117...... 47751 45 CFR 384...... 48104 Proposed Rules: 390...... 48510 165...... 47752, 49424 Ch. XXII ...... 49409 141...... 49423 393...... 47703 34 CFR 571...... 48562 21 CFR 46 CFR 379...... 48052 575...... 48564 5...... 47669, 49383 Proposed Rules: 581...... 49092 74...... 48288 36 CFR 10...... 48136 1000...... 47709 15...... 48136 1001...... 47709 175...... 48290 251...... 48959 90...... 48136 1004...... 47709 178 ...... 47669, 48291, 48292 1254...... 48960 510...... 48293 98...... 48136 Proposed Rules: Proposed Rules: 520...... 48295, 48543 125...... 48136 390...... 48519 242...... 49278 522...... 48293, 48544 126...... 48136 571...... 49135 127...... 48136 524...... 48707, 49082 37 CFR 556...... 48295, 48544 128...... 48136 558 ...... 48295, 49082, 49383 1...... 48900 129...... 48136 50 CFR Proposed Rules: 2...... 48900 130...... 48136 17...... 48307 2...... 47719 3...... 48900 131...... 48136 21...... 48565 111...... 48336 6...... 48900 132...... 48136 622 ...... 47711, 48324, 48326 133...... 48136 635 ...... 47713, 48111, 48112 23 CFR 39 CFR 134...... 48136 648...... 48965 658...... 48957 111...... 48092 151...... 48976 660...... 48113, 49092 Proposed Rules: Proposed Rules: 170...... 48136 679 ...... 47714, 48329, 48330, Ch. I...... 47741, 47744, 47746, 776...... 48124 174...... 48136 48331, 48332, 49102, 40103, 47749 3003...... 49120 175...... 48136 49104 Proposed Rules: 24 CFR 40 CFR 47 CFR 17...... 47755, 48743 Proposed Rules: 52 ...... 47670, 47674, 48095, 63...... 47699 25...... 49056 990...... 48572 48297, 48305, 48961, 49084, 73 ...... 47702, 48307, 49087, 26...... 49056 49396, 49398 49400, 49404 49088, 49090, 49091, 49092 29...... 49056 26 CFR 62...... 47680, 48714 74...... 47702 100...... 49278 1...... 48545 180 ...... 47680, 47687, 47689, Proposed Rules: 600...... 48337 301...... 48547 48548 1...... 49128, 49426 648 ...... 48337, 48757, 49139, Proposed Rules: 271...... 47692, 48099 3...... 48337 49427 1...... 48572, 49276 300...... 48964 15...... 49128 697...... 47756
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REMINDERS Interlocking directorates; food service, and child by 9-20-99; published 7- The items in this list were CFR part removed; and adult care food 20-99 editorially compiled as an aid biennial regulatory review; programs; vegetable ENERGY DEPARTMENT to Federal Register users. published 8-12-99 protein products Energy Efficiency and Inclusion or exclusion from Radio stations; table of requirements modification; Renewable Energy Office this list has no legal assignments: comments due by 9-20- Energy conservation: 99; published 7-20-99 significance. Texas; published 8-9-99 State Energy Program; HEALTH AND HUMAN Food distribution program on Special Projects funding; SERVICES DEPARTMENT Indian reservations: comment request; RULES GOING INTO Food and Drug Intentional program comments due by 9-23- EFFECT SEPTEMBER 13, Administration violations; disqualification 99; published 8-24-99 penalties; comments due 1999 Animal drugs, feeds, and ENVIRONMENTAL by 9-20-99; published 7- related products: PROTECTION AGENCY 22-99 AGRICULTURE New drug applicationsÐ Air pollutants, hazardous; DEPARTMENT AGRICULTURE national emission standards: Nicarbazin and DEPARTMENT Animal and Plant Health bambermycins; Halogenated solvent Inspection Service published 9-13-99 Acquisition regulations: cleaning; comments due by 9-20-99; published 8- Plant-related quarantine, Organization, functions, and Simplified acquisition 19-99 domestic: authority delegations: procedures; comments due by 9-22-99; published Air programs: Mexican fruit fly, etc.; high- Center for Drug Evaluation 8-23-99 Outer Continental Shelf temperature forced-air and Research; technical regulationsÐ treatments for citrus fruits; amendment; published 9- COMMERCE DEPARTMENT California; consistency published 7-13-99 13-99 National Oceanic and update; comments due COMMERCE DEPARTMENT Atmospheric Administration HOUSING AND URBAN by 9-20-99; published Export Administration DEVELOPMENT Endangered and threatened 8-19-99 Bureau DEPARTMENT species: Air programs; approval and Export administration Fair housing: Critical habitat designationÐ promulgation; State plans regulations: Affirmative fair housing Puget Sound marine for designated facilities and Chemical Weapons marketing; compliance fishes; comments due pollutants: Convention; procedures; nomenclature by 9-20-99; published Missouri; comments due by implementation changes; published 8-12- 6-21-99 9-20-99; published 8-19- States Parties additions; 99 Fishery conservation and 99 licensing policy TRANSPORTATION management: Pennsylvania; comments clarification; published DEPARTMENT Alaska; fisheries of due by 9-22-99; published 9-13-99 Federal Aviation Exclusive Economic 8-23-99 COMMERCE DEPARTMENT Administration ZoneÐ South Carolina; comments National Oceanic and Airworthiness directives: Gulf of Alaska groundfish; due by 9-23-99; published Atmospheric Administration Airbus; published 8-9-99 comments due by 9-20- 8-24-99 International fisheries Alexander Schleicher 99; published 8-3-99 Air quality implementation regulations: Segelflugzeugbau; Pollock; comments due by plans: Preparation, adoption, and Inter-American Tropical published 7-26-99 9-24-99; published 9-14- submittalÐ Tuna Commission; Pratt & Whitney; published 99 recommendations; 7-13-99 Caribbean, Gulf, and South Motor vehicle inspection/ maintenance program implementation plan; Class D and Class E Atlantic fisheriesÐ requirements; comments published 8-16-99 airspace; published 8-12-99 Essential fish habitat; due by 9-20-99; ENVIRONMENTAL comments due by 9-20- published 8-20-99 PROTECTION AGENCY 99; published 8-3-99 COMMENTS DUE NEXT Air quality implementation Air pollutants, hazardous; WEEK Magnuson-Stevens Act plans; approval and national emission standards: provisions and promulgation; various Northeastern United Halogenated solvent AGRICULTURE States: States fisheriesÐ cleaning; published 7-13- DEPARTMENT California; comments due by Domestic fisheries; 99 Agricultural Marketing 9-20-99; published 8-19- exempted fishing Air programs; approval and Service 99 permits; comments due promulgation; State plans Avocados grown in Florida Louisiana; comments due by for designated facilities and by 9-20-99; published 9-20-99; published 8-20- and imported; comments 9-3-99 pollutants: due by 9-20-99; published 99 Massachusetts; published 7- 8-20-99 Northeastern United States Maryland; comments due by fisheriesÐ 14-99 Blueberry promotion, research, 9-20-99; published 8-19- Air quality implementation and information order; Spiny dogfish; comments 99 plans; approval and comments due by 9-20-99; due by 9-20-99; Pennsylvania; comments promulgation; various published 7-22-99 published 8-3-99 due by 9-24-99; published States: Referendum procedures; CONSUMER PRODUCT 8-25-99 California; published 8-13-99 comments due by 9-20- SAFETY COMMISSION Air quality implementation √ √ Illinois; published 7-14-99 99; published 7-22-99 Bunk beds; safety standards; plans; A approval and promulgation; various West Virginia; published 7- AGRICULTURE comments due by 9-22-99; published 7-9-99 States; air quality planning 13-99 DEPARTMENT purposes; designation of FEDERAL Food and Nutrition Service DEFENSE DEPARTMENT areas: COMMUNICATIONS Child nutrition programs: Acquisition regulations: Colorado; comments due by COMMISSION National school lunch, Streamlined payment 9-24-99; published 8-25- Common carrier services: school breakfast, summer practices; comments due 99
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Hazardous waste program FEDERAL ELECTION policies; comments due Risk management; authorizations: COMMISSION by 9-20-99; published 7- comments due by 9-20- Louisiana; comments due by Rulemaking petitions: 22-99 99; published 7-20-99 9-24-99; published 8-25- Bopp, James, Jr.; comments HOUSING AND URBAN NUCLEAR REGULATORY 99 due by 9-24-99; published DEVELOPMENT COMMISSION North Carolina; comments 8-25-99 DEPARTMENT Rulemaking petitions: due by 9-24-99; published FEDERAL TRADE Low-income housing: Colorado and Organization 8-25-99 COMMISSION One-strike screening and of Agreement States; Hazardous waste: Practice and procedure: eviction for drug abuse comments due by 9-20- Identification and listingÐ Effective relief provision and other criminal activity; 99; published 7-7-99 Dye and pigment where parties consent to comments due by 9-21- POSTAL SERVICE 99; published 7-23-99 industries; comments entry of cease and desist International Mail Manual: Public housing due by 9-21-99; order; consent settlements Global DirectÐCanada developments; required published 7-23-99 comment period Publications Mail; conversion to tenant- Exclusions; comments due shortened; comments due comments due by 9-24- based assistance; by 9-20-99; published by 9-24-99; published 8- 99; published 8-25-99 8-4-99 25-99 comments due by 9-21- 99; published 7-23-99 PRESIDIO TRUST Pesticides; tolerances in food, GENERAL SERVICES Management of the Presidio; animal feeds, and raw Public housing ADMINISTRATION general provisions, etc.: agricultural commodities: developments; voluntary Federal Management conversion to tenant- Environmental quality; Bentazon, etc.; comments Regulation: based assistance; comments due by 9-21- due by 9-20-99; published Establishment as successor comments due by 9-21- 99; published 7-23-99 7-21-99 regulation to Federal 99; published 7-23-99 SMALL BUSINESS Biphenyl, etc.; comments Property Management Public and Indian housing: ADMINISTRATION due by 9-20-99; published Regulations; comments Rental voucher and 7-21-99 due by 9-20-99; published Small business size standards: certificate programs Propargite; comments due 7-21-99 Freight and cargo (Section 8)Ð transportation arrangement by 9-20-99; published 7- HEALTH AND HUMAN Management assessment industry; comments due 21-99 SERVICES DEPARTMENT program; technical by 9-24-99; published 7- Superfund program: Food and Drug amendment; comments 26-99 National oil and hazardous Administration due by 9-24-99; General building contractors, substances contingency Food for human consumption: published 7-26-99 heavy construction, planÐ Food labelingÐ INTERIOR DEPARTMENT dredging and surface National priorities list Shell eggs; refrigeration at Fish and Wildlife Service cleanup, special trade update; comments due retail establishments Endangered and threatened contractors, garbage and by 9-20-99; published and safe handling species: refuse collection, and 7-22-99 labels; regulatory impact Canada lynx; comments due refuse systems; comments National priorities list and flexibility analyses; by 9-24-99; published 8- due by 9-24-99; published update; comments due comments due by 9-20- 18-99 7-26-99 by 9-20-99; published 99; published 7-6-99 TRANSPORTATION 8-19-99 INTERIOR DEPARTMENT Shell eggs; safe handling DEPARTMENT National priorities list Hearings and Appeals statements, labeling, Coast Guard update; comments due and refrigeration of Office, Interior Department Offshore supply vessel by 9-20-99; published eggs held for retail Hearings and appeals regulations; revisions; 8-19-99 distribution; correction; procedures: meeting; comments due by National priorities list comments due by 9-20- Indian affairsÐ 9-21-99; published 7-22-99 update; comments due 99; published 8-26-99 Indian trust estates; by 9-24-99; published Soy protein and coronary summary distributions TRANSPORTATION 8-25-99 heart disease; health authority; comments DEPARTMENT Water pollution; effluent claims; comments due due by 9-23-99; Standard time zone guidelines for point source by 9-22-99; published published 8-24-99 boundaries: categories: 8-23-99 INTERIOR DEPARTMENT Nevada; comments due by Publicly owned treatment Food lableingÐ Surface Mining Reclamation 9-24-99; published 7-26- works; comments due by Shell eggs; safe handling and Enforcement Office 99 9-20-99; published 7-22- statements, labeling, Permanent program and TRANSPORTATION 99 and refrigeration of abandoned mine land DEPARTMENT Transportation equipment eggs held for retail reclamation plan Federal Aviation cleaning operations; distribution; comments submissions: Administration comments due by 9-20- due by 9-20-99; Virginia; comments due by Air traffic operating and flight 99; published 7-20-99 published 7-6-99 9-20-99; published 8-20- rules, etc.: FEDERAL HEALTH AND HUMAN 99 Aircraft operator security; COMMUNICATIONS SERVICES DEPARTMENT JUSTICE DEPARTMENT comments due by 9-24- COMMISSION Health Care Financing Police Corps eligibility and 99; published 8-10-99 Common carrier services: Administration selection criteria: Airport security; comments Low-volume long-distance Medicare and Medicaid: Educational expenses; due by 9-24-99; published users; flat-rated charges; Nurse aide training timing of reimbursements; 8-10-99 comments due by 9-20- programs loss; appeal; comments due by 9-20- Airworthiness directives: 99; published 8-5-99 comments due by 9-21- 99; published 6-21-99 Airbus; comments due by 9- Digital television stations; table 99; published 7-23-99 NATIONAL AERONAUTICS 20-99; published 8-20-99 of assignments: Medicare: AND SPACE Boeing; comments due by Louisiana; comments due by Physician fee schedule ADMINISTRATION 9-20-99; published 7-21- 9-24-99; published 8-9-99 (2000 CY); payment Acquisition regulations: 99
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Bombardier; comments due TREASURY DEPARTMENT (phone, 202±512±1808). The Corporation, Kerr-McGee by 9-20-99; published 8- Alcohol, Tobacco and text will also be made Corporation, and Kerr-McGee 20-99 Firearms Bureau available on the Internet from Chemical, LLC (successor to British Aerospace; Alcohol, tobacco, and other GPO Access at http:// Kerr-McGee Chemical www.access.gpo.gov/nara/ comments due by 9-22- excise taxes: Corporation), and for other index.html. Some laws may purposes. (Aug. 17, 1999; 113 99; published 8-23-99 Firearms; identification not yet be available. Stat. 398) Dornier; comments due by markings; comments due 9-20-99; published 8-20- by 9-21-99; published 6- H.R. 211/P.L. 106±48 S. 1546/P.L. 106±55 99 23-99 To designate the Federal McDonnell Douglas; TREASURY DEPARTMENT building and United States To amend the International courthouse located at 920 Religious Freedom Act of comments due by 9-20- Internal Revenue Service 99; published 8-6-99 West Riverside Avenue in 1998 to provide additional Estate and gift taxes: Spokane, Washington, as the administrative authorities to MD Helicopters, Inc.; Grantor retained annuity ``Thomas S. Foley United the United States Commission comments due by 9-20- trust and grantor retained States Courthouse'', and the on International Religious 99; published 7-20-99 unitrust ; qualified interest plaza at the south entrance of Freedom, and to make Airworthiness standards: definition; comments due such building and courthouse technical corrections to that Rotorcraft; transport by 9-20-99; published 6- as the ``Walter F. Horan Act, and for other purposes. categoryÐ 22-99 Plaza''. (Aug. 17, 1999; 113 (Aug. 17, 1999; 113 Stat. 401) Rotorcraft performance; Income taxes: Stat. 230) Last List August 18, 1999 comments due by 9-20- Allocation of purchase price H.R. 1219/P.L. 106±49 99; published 8-19-99 in asset acquisitions; Construction Industry Payment Rotorcraft performance; comments due by 9-20- Protection Act of 1999 (Aug. correction; comments 99; published 8-10-99 17, 1999; 113 Stat. 231) due by 9-20-99; H.R. 1568/P.L. 106±50 Public Laws Electronic published 8-31-99 Veterans Entrepreneurship and Notification Service LIST OF PUBLIC LAWS Small Business Development Aviation safety: (PENS) Act of 1999 (Aug. 17, 1999; Voluntarily submitted This is a continuing list of 113 Stat. 233) information; confidentiality public bills from the current H.R. 1664/P.L. 106±51 protection; comments due PENS is a free electronic mail session of Congress which Emergency Steel Loan notification service of newly by 9-24-99; published 7- have become Federal laws. It Guarantee and Emergency Oil enacted public laws. To 26-99 may be used in conjunction and Gas Guaranteed Loan Act subscribe, send E-mail to Class E airspace; comments with ``P L U S'' (Public Laws of 1999 (Aug. 17, 1999; 113 [email protected] with due by 9-20-99; published Update Service) on 202±523± Stat. 252) the text message: 8-4-99 6641. This list is also H.R. 2465/P.L. 106±52 available online at http:// Class E airspace; correction; Military Construction SUBSCRIBE PUBLAWS-L www.nara.gov/fedreg. comments due by 9-20-99; Appropriations Act, 2000 (Aug. Your Name. published 8-13-99 The text of laws is not 17, 1999; 113 Stat. 259) Commercial space published in the Federal S. 507/P.L. 106±53 Note: This service is strictly transportation: Register but may be ordered Water Resources Development for E-mail notification of new Launch site operation; in ``slip law'' (individual Act of 1999. (Aug. 17, 1999; public laws. The text of laws licensing and safety pamphlet) form from the 113 Stat. 269) is not available through this requirements; comments Superintendent of Documents, S. 606/P.L. 106±54 service. PENS cannot respond due by 9-23-99; published U.S. Government Printing For the relief of Global to specific inquiries sent to 6-25-99 Office, Washington, DC 20402 Exploration and Development this address.
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CFR CHECKLIST Title Stock Number Price Revision Date 14 Parts: 1–59 ...... (869–038–00037–7) ...... 50.00 Jan. 1, 1999 This checklist, prepared by the Office of the Federal Register, is 60–139 ...... (869–038–00038–5) ...... 42.00 Jan. 1, 1999 published weekly. It is arranged in the order of CFR titles, stock 140–199 ...... (869–038–00039–3) ...... 17.00 Jan. 1, 1999 numbers, prices, and revision dates. 200–1199 ...... (869–038–00040–7) ...... 28.00 Jan. 1, 1999 An asterisk (*) precedes each entry that has been issued since last 1200–End ...... (869–038–00041–5) ...... 24.00 Jan. 1, 1999 week and which is now available for sale at the Government Printing 15 Parts: Office. 0–299 ...... (869–038–00042–3) ...... 25.00 Jan. 1, 1999 A checklist of current CFR volumes comprising a complete CFR set, 300–799 ...... (869–038–00043–1) ...... 36.00 Jan. 1, 1999 also appears in the latest issue of the LSA (List of CFR Sections 800–End ...... (869–038–00044–0) ...... 24.00 Jan. 1, 1999 Affected), which is revised monthly. 16 Parts: The CFR is available free on-line through the Government Printing 0–999 ...... (869–038–00045–8) ...... 32.00 Jan. 1, 1999 Office's GPO Access Service at http://www.access.gpo.gov/nara/cfr/ 1000–End ...... (869–038–00046–6) ...... 37.00 Jan. 1, 1999 index.html. For information about GPO Access call the GPO User Support Team at 1-888-293-6498 (toll free) or 202-512-1530. 17 Parts: 1–199 ...... (869–038–00048–2) ...... 29.00 Apr. 1, 1999 The annual rate for subscription to all revised paper volumes is 200–239 ...... (869–038–00049–1) ...... 34.00 Apr. 1, 1999 $951.00 domestic, $237.75 additional for foreign mailing. 240–End ...... (869–038–00050–4) ...... 44.00 Apr. 1, 1999 Mail orders to the Superintendent of Documents, Attn: New Orders, 18 Parts: P.O. Box 371954, Pittsburgh, PA 15250±7954. All orders must be 1–399 ...... (869–038–00051–2) ...... 48.00 Apr. 1, 1999 accompanied by remittance (check, money order, GPO Deposit 400–End ...... (869–038–00052–1) ...... 14.00 Apr. 1, 1999 Account, VISA, Master Card, or Discover). Charge orders may be telephoned to the GPO Order Desk, Monday through Friday, at (202) 19 Parts: 512±1800 from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your 1–140 ...... (869–038–00053–9) ...... 37.00 Apr. 1, 1999 charge orders to (202) 512-2250. 141–199 ...... (869–038–00054–7) ...... 36.00 Apr. 1, 1999 200–End ...... (869–038–00055–5) ...... 18.00 Apr. 1, 1999 Title Stock Number Price Revision Date 20 Parts: 1, 2 (2 Reserved) ...... (869–034–00001–1) ...... 5.00 5 Jan. 1, 1999 1–399 ...... (869–038–00056–3) ...... 30.00 Apr. 1, 1999 3 (1997 Compilation 400–499 ...... (869–038–00057–1) ...... 51.00 Apr. 1, 1999 and Parts 100 and 500–End ...... (869–038–00058–0) ...... 44.00 7 Apr. 1, 1999 1 101) ...... (869–038–00002–4) ...... 20.00 Jan. 1, 1999 21 Parts: 4 ...... (869–034–00003–7) ...... 7.00 5 Jan. 1, 1999 1–99 ...... (869–038–00059–8) ...... 24.00 Apr. 1, 1999 100–169 ...... (869–038–00060–1) ...... 28.00 Apr. 1, 1999 5 Parts: 170–199 ...... (869–038–00061–0) ...... 29.00 Apr. 1, 1999 1–699 ...... (869–038–00004–1) ...... 37.00 Jan. 1, 1999 200–299 ...... (869–038–00062–8) ...... 11.00 Apr. 1, 1999 700–1199 ...... (869–038–00005–9) ...... 27.00 Jan. 1, 1999 300–499 ...... (869–038–00063–6) ...... 50.00 Apr. 1, 1999 1200–End, 6 (6 500–599 ...... (869–038–00064–4) ...... 28.00 Apr. 1, 1999 Reserved) ...... (869–038–00006–7) ...... 44.00 Jan. 1, 1999 600–799 ...... (869–038–00065–2) ...... 9.00 Apr. 1, 1999 7 Parts: 800–1299 ...... (869–038–00066–8) ...... 35.00 Apr. 1, 1999 1–26 ...... (869–038–00007–5) ...... 25.00 Jan. 1, 1999 1300–End ...... (869–038–00067–9) ...... 14.00 Apr. 1, 1999 27–52 ...... (869–038–00008–3) ...... 32.00 Jan. 1, 1999 22 Parts: 53–209 ...... (869–038–00009–1) ...... 20.00 Jan. 1, 1999 1–299 ...... (869–038–00068–7) ...... 44.00 Apr. 1, 1999 210–299 ...... (869–038–00010–5) ...... 47.00 Jan. 1, 1999 300–End ...... (869–038–00069–5) ...... 32.00 Apr. 1, 1999 300–399 ...... (869–038–00011–3) ...... 25.00 Jan. 1, 1999 400–699 ...... (869–038–00012–1) ...... 37.00 Jan. 1, 1999 23 ...... (869–038–00070–9) ...... 27.00 Apr. 1, 1999 700–899 ...... (869–038–00013–0) ...... 32.00 Jan. 1, 1999 24 Parts: 900–999 ...... (869–038–00014–8) ...... 41.00 Jan. 1, 1999 0–199 ...... (869–038–00071–7) ...... 34.00 Apr. 1, 1999 1000–1199 ...... (869–038–00015–6) ...... 46.00 Jan. 1, 1999 200–499 ...... (869–038–00072–5) ...... 32.00 Apr. 1, 1999 1200–1599 ...... (869–038–00016–4) ...... 34.00 Jan. 1, 1999 500–699 ...... (869–038–00073–3) ...... 18.00 Apr. 1, 1999 1600–1899 ...... (869–038–00017–2) ...... 55.00 Jan. 1, 1999 700–1699 ...... (869–038–00074–1) ...... 40.00 Apr. 1, 1999 1900–1939 ...... (869–038–00018–1) ...... 19.00 Jan. 1, 1999 1700–End ...... (869–038–00075–0) ...... 18.00 Apr. 1, 1999 1940–1949 ...... (869–038–00019–9) ...... 34.00 Jan. 1, 1999 25 ...... (869–038–00076–8) ...... 47.00 Apr. 1, 1999 1950–1999 ...... (869–038–00020–2) ...... 41.00 Jan. 1, 1999 2000–End ...... (869–038–00021–1) ...... 27.00 Jan. 1, 1999 26 Parts: §§ 1.0-1–1.60 ...... (869–038–00077–6) ...... 27.00 Apr. 1, 1999 8 ...... (869–038–00022–9) ...... 36.00 Jan. 1, 1999 §§ 1.61–1.169 ...... (869–038–00078–4) ...... 50.00 Apr. 1, 1999 9 Parts: §§ 1.170–1.300 ...... (869–038–00079–2) ...... 34.00 Apr. 1, 1999 1–199 ...... (869–038–00023–7) ...... 42.00 Jan. 1, 1999 §§ 1.301–1.400 ...... (869–038–00080–6) ...... 25.00 Apr. 1, 1999 200–End ...... (869–038–00024–5) ...... 37.00 Jan. 1, 1999 §§ 1.401–1.440 ...... (869–038–00081–4) ...... 43.00 Apr. 1, 1999 §§ 1.441-1.500 ...... (869-038-00082-2) ...... 30.00 Apr. 1, 1999 10 Parts: §§ 1.501–1.640 ...... (869–038–00083–1) ...... 27.00 7 Apr. 1, 1999 1–50 ...... (869–038–00025–3) ...... 42.00 Jan. 1, 1999 §§ 1.641–1.850 ...... (869–038–00084–9) ...... 35.00 Apr. 1, 1999 51–199 ...... (869–038–00026–1) ...... 34.00 Jan. 1, 1999 §§ 1.851–1.907 ...... (869–038–00085–7) ...... 40.00 Apr. 1, 1999 200–499 ...... (869–038–00027–0) ...... 33.00 Jan. 1, 1999 §§ 1.908–1.1000 ...... (869–038–00086–5) ...... 38.00 Apr. 1, 1999 500–End ...... (869–038–00028–8) ...... 43.00 Jan. 1, 1999 §§ 1.1001–1.1400 ...... (869–038–00087–3) ...... 40.00 Apr. 1, 1999 11 ...... (869–038–0002–6) ...... 20.00 Jan. 1, 1999 §§ 1.1401–End ...... (869–038–00088–1) ...... 55.00 Apr. 1, 1999 2–29 ...... (869–038–00089–0) ...... 39.00 Apr. 1, 1999 12 Parts: 30–39 ...... (869–038–00090–3) ...... 28.00 Apr. 1, 1999 1–199 ...... (869–038–00030–0) ...... 17.00 Jan. 1, 1999 40–49 ...... (869–038–00091–1) ...... 17.00 Apr. 1, 1999 200–219 ...... (869–038–00031–8) ...... 20.00 Jan. 1, 1999 50–299 ...... (869–038–00092–0) ...... 21.00 Apr. 1, 1999 220–299 ...... (869–038–00032–6) ...... 40.00 Jan. 1, 1999 300–499 ...... (869–038–00093–8) ...... 37.00 Apr. 1, 1999 300–499 ...... (869–038–00033–4) ...... 25.00 Jan. 1, 1999 500–599 ...... (869–038–00094–6) ...... 11.00 Apr. 1, 1999 500–599 ...... (869–038–00034–2) ...... 24.00 Jan. 1, 1999 600–End ...... (869–038–00095–4) ...... 11.00 Apr. 1, 1999 600–End ...... (869–038–00035–1) ...... 45.00 Jan. 1, 1999 27 Parts: 13 ...... (869–038–00036–9) ...... 25.00 Jan. 1, 1999 1–199 ...... (869–038–00096–2) ...... 53.00 Apr. 1, 1999
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Title Stock Number Price Revision Date Title Stock Number Price Revision Date 200–End ...... (869–038–00097–1) ...... 17.00 Apr. 1, 1999 266–299 ...... (869–034–00151–3) ...... 30.00 July 1, 1998 ...... 28 Parts: ...... 300–399 (869–034–00152–1) 26.00 July 1, 1998 400–424 ...... (869–034–00153–0) ...... 33.00 July 1, 1998 0-42 ...... (869–034–00098–3) ...... 36.00 July 1, 1998 425–699 ...... (869–034–00154–8) ...... 42.00 July 1, 1998 43-end ...... (869-034-00099-1) ...... 30.00 July 1, 1998 700–789 ...... (869–034–00155–6) ...... 41.00 July 1, 1998 29 Parts: 790–End ...... (869–034–00156–4) ...... 22.00 July 1, 1998 0–99 ...... (869–034–00100–9) ...... 26.00 July 1, 1998 41 Chapters: 100–499 ...... (869–038–00101–2) ...... 13.00 July 1, 1999 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 8 500–899 ...... (869–034–00102–1) ...... 40.00 July 1, 1999 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 900–1899 ...... (869–034–00103–3) ...... 20.00 July 1, 1998 3–6 ...... 14.00 3 July 1, 1984 1900–1910 (§§ 1900 to 7 ...... 6.00 3 July 1, 1984 1910.999) ...... (869–034–00104–1) ...... 44.00 July 1, 1998 8 ...... 4.50 3 July 1, 1984 1910 (§§ 1910.1000 to 9 ...... 13.00 3 July 1, 1984 end) ...... (869–034–00105–0) ...... 27.00 July 1, 1998 10–17 ...... 9.50 3 July 1, 1984 1911–1925 ...... (869–034–00106–8) ...... 17.00 July 1, 1998 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 1926 ...... (869–034–00107–1) ...... 30.00 July 1, 1999 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 *1927–End ...... (869–034–00108–0) ...... 43.00 July 1, 1999 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 30 Parts: 19–100 ...... 13.00 3 July 1, 1984 *1–199 ...... (869–034–00109–8) ...... 35.00 July 1, 1999 1–100 ...... (869–034–00157–2) ...... 13.00 July 1, 1998 200–699 ...... (869–038–00110–1) ...... 30.00 July 1, 1999 101 ...... (869–034–00158–1) ...... 37.00 July 1, 1998 700–End ...... (869–034–00111–4) ...... 33.00 July 1, 1998 102–200 ...... (869–034–00158–9) ...... 15.00 July 1, 1998 201–End ...... (869–034–00160–2) ...... 13.00 July 1, 1998 31 Parts: 0–199 ...... (869–038–00112–8) ...... 21.00 July 1, 1999 42 Parts: 200–End ...... (869–034–00113–1) ...... 46.00 July 1, 1998 1–399 ...... (869–034–00161–1) ...... 34.00 Oct. 1, 1998 400–429 ...... (869–034–00162–9) ...... 41.00 Oct. 1, 1998 32 Parts: 430–End ...... (869–034–00163–7) ...... 51.00 Oct. 1, 1998 1–39, Vol. I ...... 15.00 2 July 1, 1984 1–39, Vol. II ...... 19.00 2 July 1, 1984 43 Parts: 1–39, Vol. III ...... 18.00 2 July 1, 1984 1–999 ...... (869–034–00164–5) ...... 30.00 Oct. 1, 1998 *1–190 ...... (869–034–00114–4) ...... 46.00 July 1, 1999 1000–end ...... (869–034–00165–3) ...... 48.00 Oct. 1, 1998 191–399 ...... (869–034–00115–7) ...... 51.00 July 1, 1998 44 ...... (869–034–00166–1) ...... 48.00 Oct. 1, 1998 400–629 ...... (869–034–00116–5) ...... 33.00 July 1, 1998 630–699 ...... (869–034–00117–3) ...... 22.00 4 July 1, 1998 45 Parts: 700–799 ...... (869–034–00118–1) ...... 26.00 July 1, 1998 1–199 ...... (869–034–00167–0) ...... 30.00 Oct. 1, 1998 800–End ...... (869–034–00119–0) ...... 27.00 July 1, 1998 200–499 ...... (869–034–00168–8) ...... 14.00 Oct. 1, 1998 500–1199 ...... (869–034–00169–6) ...... 30.00 Oct. 1, 1998 33 Parts: 1200–End ...... (869–034–00170–0) ...... 39.00 Oct. 1, 1998 1–124 ...... (869–034–00120–3) ...... 29.00 July 1, 1998 125–199 ...... (869–034–00121–1) ...... 38.00 July 1, 1998 46 Parts: 200–End ...... (869–034–00122–0) ...... 30.00 July 1, 1998 1–40 ...... (869–034–00171–8) ...... 26.00 Oct. 1, 1998 41–69 ...... (869–034–00172–6) ...... 21.00 Oct. 1, 1998 34 Parts: 70–89 ...... (869–034–00173–4) ...... 8.00 Oct. 1, 1998 1–299 ...... (869–034–00123–8) ...... 27.00 July 1, 1998 90–139 ...... (869–034–00174–2) ...... 26.00 Oct. 1, 1998 300–399 ...... (869–034–00124–6) ...... 25.00 July 1, 1998 140–155 ...... (869–034–00175–1) ...... 14.00 Oct. 1, 1998 400–End ...... (869–034–00125–4) ...... 44.00 July 1, 1998 156–165 ...... (869–034–00176–9) ...... 19.00 Oct. 1, 1998 35 ...... (869–034–00126–2) ...... 14.00 July 1, 1998 166–199 ...... (869–034–00177–7) ...... 25.00 Oct. 1, 1998 200–499 ...... (869–034–00178–5) ...... 22.00 Oct. 1, 1998 36 Parts 500–End ...... (869–034–00179–3) ...... 16.00 Oct. 1, 1998 1–199 ...... (869–034–00127–1) ...... 20.00 July 1, 1998 200–299 ...... (869–034–00128–9) ...... 21.00 July 1, 1998 47 Parts: 300–End ...... (869–034–00129–7) ...... 35.00 July 1, 1998 0–19 ...... (869–034–00180–7) ...... 36.00 Oct. 1, 1998 20–39 ...... (869–034–00181–5) ...... 27.00 Oct. 1, 1998 37 (869–034–00130–1) ...... 27.00 July 1, 1998 40–69 ...... (869–034–00182–3) ...... 24.00 Oct. 1, 1998 38 Parts: 70–79 ...... (869–034–00183–1) ...... 37.00 Oct. 1, 1998 0–17 ...... (869–034–00131–9) ...... 34.00 July 1, 1998 80–End ...... (869–034–00184–0) ...... 40.00 Oct. 1, 1998 18–End ...... (869–034–00132–7) ...... 39.00 July 1, 1998 48 Chapters: 39 ...... (869–034–00133–5) ...... 23.00 July 1, 1998 1 (Parts 1–51) ...... (869–034–00185–8) ...... 51.00 Oct. 1, 1998 1 (Parts 52–99) ...... (869–034–00186–6) ...... 29.00 Oct. 1, 1998 40 Parts: 2 (Parts 201–299) ...... (869–034–00187–4) ...... 34.00 Oct. 1, 1998 1–49 ...... (869–034–00134–3) ...... 31.00 July 1, 1998 3–6 ...... (869–034–00188–2) ...... 29.00 Oct. 1, 1998 50–51 ...... (869–034–00135–1) ...... 24.00 July 1, 1998 7–14 ...... (869–034–00189–1) ...... 32.00 Oct. 1, 1998 52 (52.01–52.1018) ...... (869–034–00136–0) ...... 28.00 July 1, 1998 15–28 ...... (869–034–00190–4) ...... 33.00 Oct. 1, 1998 52 (52.1019–End) ...... (869–034–00137–8) ...... 33.00 July 1, 1998 29–End ...... (869–034–00191–2) ...... 24.00 Oct. 1, 1998 53–59 ...... (869–034–00138–6) ...... 17.00 July 1, 1998 60 ...... (869–034–00139–4) ...... 53.00 July 1, 1998 49 Parts: 61–62 ...... (869–034–00140–8) ...... 18.00 July 1, 1998 1–99 ...... (869–034–00192–1) ...... 31.00 Oct. 1, 1998 63 ...... (869–034–00141–6) ...... 57.00 July 1, 1998 100–185 ...... (869–034–00193–9) ...... 50.00 Oct. 1, 1998 64–71 ...... (869–034–00142–4) ...... 11.00 July 1, 1998 186–199 ...... (869–034–00194–7) ...... 11.00 Oct. 1, 1998 72–80 ...... (869–034–00143–2) ...... 36.00 July 1, 1998 200–399 ...... (869–034–00195–5) ...... 46.00 Oct. 1, 1998 81–85 ...... (869–034–00144–1) ...... 31.00 July 1, 1998 400–999 ...... (869–034–00196–3) ...... 54.00 Oct. 1, 1998 86 ...... (869–034–00144–9) ...... 53.00 July 1, 1998 1000–1199 ...... (869–034–00197–1) ...... 17.00 Oct. 1, 1998 87-135 ...... (869–034–00146–7) ...... 47.00 July 1, 1998 1200–End ...... (869–034–00198–0) ...... 13.00 Oct. 1, 1998 136–149 ...... (869–034–00147–5) ...... 37.00 July 1, 1998 50 Parts: 150–189 ...... (869–034–00148–3) ...... 34.00 July 1, 1998 1–199 ...... (869–034–00199–8) ...... 42.00 Oct. 1, 1998 190–259 ...... (869–034–00149–1) ...... 23.00 July 1, 1998 200–599 ...... (869–034–00200–5) ...... 22.00 Oct. 1, 1998 260–265 ...... (869–034–00150–9) ...... 29.00 July 1, 1998 600–End ...... (869–034–00201–3) ...... 33.00 Oct. 1, 1998
VerDate 18-JUN-99 20:40 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00002 Fmt 4721 Sfmt 4721 E:\FR\FM\13SECL.XXX pfrm11 PsN: 13SECL viii Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Reader Aids
Title Stock Number Price Revision Date CFR Index and Findings Aids ...... (869–038–00047–4) ...... 48.00 Jan. 1, 1999 Complete 1998 CFR set ...... 951.00 1998 Microfiche CFR Edition: Subscription (mailed as issued) ...... 247.00 1998 Individual copies ...... 1.00 1998 Complete set (one-time mailing) ...... 247.00 1997 Complete set (one-time mailing) ...... 264.00 1996 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period July 1, 1997 to June 30, 1998. The volume issued July 1, 1997, should be retained. 5 No amendments to this volume were promulgated during the period January 1, 1998 through December 31, 1998. The CFR volume issued as of January 1, 1997 should be retained. 7 No amendments to this volume were promulgated during the period April 1, 1998, through April 1, 1999. The CFR volume issued as of April 1, 1998, should be retained. 8 No amendments to this volume were promulgated during the period July 1, 1998, through July 1, 1999. The CFR volume issued as of July 1, 1998, should be retained.
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